Alabama Immigration Law

Anne Cataldo ‘13

Since September 11, 2001, national and state policies have seen a shift in how they address immigration issues. In particular, many have called for some kind of better assessment of illegal immigration. The result has been increased measures of enforcement. However, the result of such an increase in more drastic enforcement measures and harsher repercussions is a loss in terms of equal treatment of those immigrants who can potentially contribute to our country’s growth.

Alabama law H.B. 56 leads the charge of several recent state laws upping the ante in terms of strict immigration policies as part of a new wave of anti-immigration enforcement. Portions of the law were recently upheld in the district court and are currently up on appeal in the Eleventh Circuit. Section 28 was one of these provisions, which requires students to provide birth certificates indicating their citizenship status[1] as part of a measure “requir[ing] public schools to determine the citizenship and immigration status of students enrolling [in public school].”[2]Additionally, it “require[s] school districts to compile certain data and submit reports to the State Board of Education; . . . [and] require[s] the State Board of Education to submit an annual report to the Legislature.” “Immigration and human rights experts say that no other developed country has passed an immigration law as stringent as Alabama’s.”[3]

The Alabama government claims that the law was the result of a failure of the federal government to provide adequate illegal immigration enforcement measures.[4] In addition, it maintains that HB 56 will help the state overall by “reduc[ing] illegal immigration to the state and [by] ‘provid[ing] equal opportunities for all people who want to come to Alabama legally.’”[5] Further, “Alabama Attorney General Luther Strange [stated] at the hearing [that] the law would not prevent undocumented immigrants from having access to public school education,” and Alabama Governor Robert Bentley claimed that “[t]his law was never designed to hurt fellow human beings.”[6]

While supporters of the law maintain that it is not expected to have a negative effect on school attendance and that it is not a per se bar on illegal immigrant children attending school, reports indicate that illegal immigrants are “afraid to go to the hospital, . . . go to the police, . . . [and] to send their children to school.”[7] The New York Times reported that “the most frightened families pack[ed] up their cars as soon as they heard the news” that portions of HB 56 would go into effect.[8] The Washington Post reported that “scores of immigrant families have withdrawn their children from classes and some towns and urban areas also reported a sudden exodus of Hispanics.”[9] Now that the law has gone into effect, “racial profiling is rampant throughout the Alabama school system.”[10] The law even discourages legal American citizen children from receiving a public school education. As one news article pointed out, [t]he legal status of family members is often mixed – children are often American-born citizens – but the decision whether to stay rests on the weakest link.”[11] Thus, while children may have no fear of going to school, fears of their illegal immigrant parents for discovery of their own illegal status could result in pulling the children from school and leaving the area. Many families have resorted “to tak[ing] their children out of school, to avoid the risk that they’ll be asked about their immigration status – despite the fact that in theory, this provision is not supposed to apply to students who have already enrolled.”[12] Even further, many families have reached out to the Hispanic Interest Coalition of Alabama to find out “how they can grant legal power to relatives or neighbors to take care of their U.S. citizen children . . . if they’re deported.”[13]

This law could have a potentially devastating effect on future immigration policy because assessing the validity of HB 56 Section 28 “would allow the Supreme Court to reconsider [the Plyler v. Doe] decision that said a kindergarten to high school education must be provided to illegal immigrants.”[14] Some have argued that it is unlikely that the Supreme Court would overturn its previous ruling, but questioning the validity of this law in and of itself could stand to weaken what effect it has had in the past by furthering opposition groups and opening the door to new challenges. As New York Times journalist Campbell Robertson remarked, “[i]t is . . . a first step in a larger and long-considered strategy to topple a 29-year-old Supreme Court ruling that all children in the United States, regardless of their immigration status, are guaranteed a public education.”[15] With new information-gathering technology and invigorated efforts to produce more evidence to overturn the Plyler decision,[16] Plyler may be challenged. Some scholars maintain that the threat is minimal.[17] However, even if Plyler is not overturned, to some extent, the damage has been done.

Case law and history suggest that such action on the part of states like Alabama violates both the Equal Protection and Supremacy Clauses of the Constitution, and must be enjoined. It has long been established that the federal government retains control over immigration policies,[18] and because Alabama takes regulation into its own hands through this law, it should not be allowed to stand. Furthermore, federal law has recognized the importance of the right to go to public school,[19] and the impact of H.B. 56’s overly strict immigration measures has had the effect of creating a separate disparate class of people. Moreover, immigration law in schools is particularly critical, for the “educational policy in the United States . . . determines not only integration of immigrants into our communities, but also the effects of immigration outside the law on U.S. citizens.”[20] Allowing H.B. 56 to stand could have a devastating effect on assimilation practices. While federalism principles tout the importance of states being able to retain a large amount of leeway in coming up with policies that can effectively address the needs of their specific states, the history of our country and the principles put forth in the United States Constitution indicate that policies like HB 56 – that not only deter future students from receiving an education to which they are entitled, but also turn back the clock in how far assimilation and civil rights teachings have come – should be stopped.

[1] This portion of the law is currently enjoined, pending appellate review by the 11th Circuit.
[2] Text of Alabama Immigration Law, HB 56, Alabama State Legislature (June 9, 2011), http://latindispatch.com/2011/06/09/text-of-alabama-immigration-law-hb-56/.
[3] Nicolas Mendoza, Alabama immigration law is the strictest in the developed world, The Colorado
[4] Bill Mears, Obama administration asks court to block parts of tough Alabama immigration law, CNN Justice, (October 7, 2011 updated 2:07 PM EST), http://www.cnn.com/2011/10/07/justice/alabama-immigration-law/index.html (“Alabama Gov. Robert Bentley, who signed the law in June, has said the law he signed would not have been
needed ‘if the federal government would have done its job and enforced the laws dealing with this problem. However, they have failed to do that.’”)
[5] Id.
[6] Id.
[7] Jeremy Learning, Ala. Anti-Immigration Law Providing Example of Ill-Conceived Attempt at Reform, ACSblog, (October 5, 2011), http://www.acslaw.org/acsblog/ala-anti-immigration-law-providing-example-of-ill-conceived-attempt-at-reform.
[8] Campbell Robertson, After Ruling, Hispanics Flee an Alabama Town, N.Y. Times A1 (October 3, 2011), available at http://www.nytimes.com/2011/10/04/us/after-ruling-hispanics-flee-an-alabama-town.html?scp=6&sq=alabama%20immigration%20law&st=cse.
[9] U.S. asks court to halt immigration law, video, Washington Post via Associated Press (October 7, 2011), http://www.washingtonpost.com/world/national-security/us-asks-court-to-halt-immigration-law/2011/10/07/gIQA1wpPTL_video.html.
[10] ACLU Report from Alabama, ACLU (Oct. 11, 2010), http://www.aclu.org/print/aclu-report-alabama.
[11] Campbell Robertson, After Ruling, Hispanics Flee an Alabama Town, N.Y. Times A1 (October 3, 2011)
[12] Maribel Hastings, HB 56: American Kids Pay the Price, Huff Post Latino Voices (Oct. 6, 2011 at 3:48 PM ET), http://www.huffingtonpost.com/maribel-hastings/hb-56-american-kids-pay-price_b_998788.html.
[13] Id.
[14] Justice Department Sues South Carolina Over State’s Strict Immigration Law, Associated Press (Nov. 1, 2011), available at http://www.foxnews.com/politics/2011/10/31/justice-department-sues-south-carolina-over-states-strict-immigration-law/.
[15] Campbell Robertson, Critics See ‘Chilling Effect’ in Alabama Immigration Law, N.Y. Times
A14 (Oct. 28, 2011).
[16] Id.
[17] Id.
[18] See, e.g., Seth M.M. Stodder & Nicolle Sciara Rippeon, State and Local Governments and Immigration Laws, 41 Urb. Law. 387, 387 (2009) (“The United States Supreme Court has repeatedly held that the ‘authority to control immigration . . . is vested solely in the federal government.’”) (citing Traux v. Raich, 239 U.S. 33, 42 (1915) (emphasis added)).
[19] See, e.g., Plyler v. Doe, 457 U.S. 202, 221-222 (1982).
[20] Hiroshi Motomura, Immigration Outside the Law, 108 Colum. L. Rev. 2037, 2096-2097 (2008).