The long and winding road of various challenges to the Alabama Taxpayer and Citizen Protection Act, ("H.B. 56"), has begun, and on September 28, 2011, federal Judge Sharon Lovelace Blackburn issued rulings on the several suits before her, where she determined that she would enjoin some of the act's many provisions, and would let others proceed to trial. All of these were early, preliminary, and procedural skirmishes, so there are no winners and losers yet; even some of her more troubling and publicized rulings, such as her decision not to enjoin Section 28, which, if allowed, would require schools to determine the immigration status of certain schoolchildren, was predominantly an analysis of the plaintiffs' standing, not the merits. There are so many moving parts to the suits and to her findings that a comprehensive analysis would likely dwarf the long and detailed rulings.
One of the pieces where she felt the state had not been persuasive and where the plaintiffs had shown an entitlement to a preliminary injunction was in Section 8 (concerning public postsecondary education in Alabama), which she held was preempted by federal immigration law. This part of the legislation read:
An alien who is not lawfully present in the United States shall not be permitted to enroll in or attend any public postsecondary education institution in this state. An alien attending any public postsecondary institution in this state must either possess lawful permanent residence or an appropriate nonimmigrant visa under 8 U.S.C. Â§ 1101, et seq.
Section 8's provisions were challenged by would-be college applicant Esayas Haile, an Eritrean refugee, who is lawfully and permanently residing in the United States, but who is neither a nonimmigrant nor a Lawful Permanent Resident (LPR). Under traditional refugee and asylum law, a person who has been granted refugee status may receive work authorization, is eligible to receive federal student aid, and is entitled to become an LPR without numerical limitations as soon as a year has passed, although he or she is not required to do so. Other eligible noncitizens who may receive federal student aid include, in addition to refugees, persons to whom asylum has been granted, Cuban-Haitian entrants (even those with Status Pending), post-April 1, 1980 Conditional Entrants, T-visa holders (victims of human trafficking), and parolees. Thus, Congress clearly contemplates that a number of persons not yet at the level of LPR may not only attend college but may receive all federal financial aid for which they are otherwise eligible; all of these persons would, in immigration parlance, be I-94 holders (with an Arrival-Departure Record issued by the U.S. Citizenship and Immigration Services [USCIS]). Here, Judge Blackburn determined the refugee plaintiff Haile had standing, unlike the injunction she had denied in the challenges to Section 28 (concerning undocumented or even U.S. citizen children). In this matter, she found "it is likely that this injury would be redressed by a favorable judgment."
She held this because it is clear on its face that Alabama was attempting in Section 8 to preclude enrollment of noncitizens "not lawfully present" by creating a separate state classification of aliens. She wrote: "Plaintiffs correctly note that 'Section 8 excludes noncitizens whom the federal government has authorized to remain in the United States but who do not hold [legal permanent resident] status or a 'nonimmigrant visa' -- including inter alia those whom the federal government has granted asylum, refugee status, Temporary Protected Status because of environmental disaster or armed conflict in their home countries or deferred action." She cites Plyler v. Doe and other Supreme Court cases, and other federal decisions that make it clear states may not classify aliens or immigrants. Alabama's extensive reach exceeded its grasp here, and she slapped its hand.
In defending this part of the statute, the state argued that it should be allowed to determine whom they wished to exclude, first arguing that they were really attempting to exclude "illegal aliens" from the state's colleges and that they didn't really mean what was written in the second half of the exclusion (they averred that "Section 8 draws no line among lawfully present aliens" at 40), and besides, that was not the way they intended to administer the law anyway.
One of the defendants in this case was Freida Hill, chancellor of the Alabama Department of Postsecondary Education, who had sent a memorandum to the presidents of the state's community colleges, in which she wrote: "The categories of aliens lawfully present in the United States that most frequently attend our institutions are lawful permanent residents (sometimes called 'green card holders') and holders of non-immigrant visas that permit study at an institution of postsecondary education. However, in addition to these categories, there are some categories of aliens who are lawfully present in the United States who are not lawful permanent residents and who are not in possession of a non-immigrant visa. Aliens in these categories are also eligible to enroll in Alabama's postsecondary educational institutions." In other words, she indicated by this wink and nod that her agency would not enforce the law as written, because it did not mean what it said.
As luck would have it, the judge did not take them at their word, even with this proposed legal standard of "we didn't mean this and in any event, we will not defend this part of the law." She held rather: "Nothing in Alabama or federal law allows the court to adopt defendants' proposed limiting construction of Section 8 -- to ignore the second sentence -- which is contrary to the plain and unambiguous language of the statute." She then provided them the road map to making the provision constitutional, indicating in footnote 13 that if the law were more carefully drafted and narrowly tailored to the first part, it could likely get its way.
Refugee plaintiff Esayas Haile prevailed, even if the schoolchildren and their parents did not, at least at the temporary restraining order phase. And Alabama is sure to go back and cure this overreach. The truth is that they were not trying to exclude Eritrean refugees or any other refugees, or the other miscellaneous lawfully present noncitizens. They were aiming at undocumented college applicants and elsewhere in Section 28, at birthright citizens and their undocumented parents. But I have to ask, why bother? Many of these restrictionists and nativists insist that they do not want government overreaching in their lives, but they do not mind, in fact insist upon, reaching into the lives of undocumented families, even at the state level.
And it surely is not large numbers that are causing this thermodynamic overreaction that is H.B. 56. Immigration Policy Center and Census Bureau figures reveal that, according to 2010 figures, only 3.9 percent of Alabamians are Latino and 1.1 percent are Asian; 87.8 percent of children in Asian families in the state are U.S. citizens, and 85.1 percent of Latino children in the state's families are U.S. citizens. With these small communities, why the rush to symbolize intolerance by enacting the country's most restrictionist and comprehensively anti-immigrant statute? As to Section 8, if it were to have taken effect, it would have been completely redundant, as state officials know full well that a state has to enact a state law to accord in-state tuition for undocumented college students. The default position is that they do not get resident tuition.
Only by passing a state law can this status be conferred. Not according them resident tuition, even when they have earned it by residing in the state for several years, is the functional equivalent of banning them. Why go the extra mile to enact a ban? And it would not require the ham-handed and ineffectual attempt that Judge Blackburn properly enjoined from even taking root.
Such statutes are mean-spirited and punitive. The schoolchildren are already not showing up for classes. If a state wishes not to accord the tuition status to undocumented college students, that is a fair if shortsighted privilege, on the wrong side of policy and history, especially after any form of the federal DREAM Act or comprehensive immigration reform is enacted, as will surely happen. But in enacting bans on college enrollments and counting measures on school children allowed by law to attend schools since Plyler in 1982 -- even if they did so without saying it ain't so -- they reveal themselves not as strict constructionists or conservatives, but as ideologues who will use unnecessary legislation and the power of government to intervene in families to punish innocent children. Public shame on them.
My fantasy is that I pick up a novel or story in Russian and I don’t realize I’m reading Russian. I smile, full of the story, excited and exhilarated as I turn the pages, and it’s only when I set the book down that I notice it’s not in English.
Another fantasy is that after walking over from the college where I teach in Brooklyn, I’m waiting for the train at the subway stop in Brighton Beach, and two Russians are sitting on the bench discussing Dostoyevsky, and I, ignored by them as I sit down, throw in a comment in Russian, and they, in disbelief, as if a kid has walked onto a baseball diamond and lined a fastball from Roger Clemens off the fence, throw me questions at the same time, and I respond in perfect colloquial Russian. We continue discussing Russian literature.
In real life, I have been studying Russian on my own, every day, for the past year and a half. What works for me is reading stories and scenes I already know very well in English. My literary divinity Tolstoy said the best way to learn a language was to pick up your favorite book and start reading it in that other language. (He used the Bible; I used my bible, Anna Karenina.)
In St. Petersburg last winter I bought a Russian-language CD of Chekhov’s stories and I listened to an actor read “Dama s sabatchkoi” (Lady with Little-Dog) about 20 times. Sometimes I looked at the text as he read. He elided words and sounds that I never would have guessed could be elided. His pronunciations and emphases were little like the ones I managed as I read it aloud to myself.
I read the opening chapter of Anna Karenina and I divined many words. But there they were, in Russian! How delightful! It’s the difference between seeing a painting in a book and seeing its original hanging on a wall. Well, there it is! You can’t get any closer than that!
I studied every day, wandering, doing what I felt like doing. When I didn’t want to read, I listened, and I told myself I needed to listen. I listened to vocabulary tapes, grammar tapes, spoken-word recordings of Chekhov and Pushkin. I listened to Lev Tolstoy himself on a Web site.Bozhe moi! There he is!
I did anything that seemed easy. I avoided the grammar, trusting myself to pick it up as I needed.
Then one late night, when I was visiting St. Petersburg and I couldn’t sleep, and I retreated to the hotel lobby to read a biography of Pushkin lest I wake up my roommate, a friendly woman sat down on an adjoining couch and volleyed my bad Russian with her bad English, and we worked out a classroom-like conversation about the weather, education, sports, music. After I declined her invitation to a massage to help me relax, and we said our do svidanyas, she advised me, kindly: “Nuzhno pravila.” (“Grammar is needed.”)
Yes, it is.
And that’s what my Russian-speaking friends tell me. Rules are necessary.
But then I wouldn’t flow with the rhythm of my interests and desires. I resist. I take the easiest route. I take the road that beckons me. And yet, having it all my own way, avoiding the dictionary (I sometimes go days without checking a dictionary, telling myself that, well, I’ll just look for the words I know or can figure out from context), avoiding any method, I find myself in the same boat as many of my students.
I remember last fall my student Irina, who came to the United States two years before and who’s my age, saying, “My English … shame!”
“I feel ashamed of my English.”
“Shame of my English.”
“Yes, a-shamed. Ashamed.”
How ashamed I was thinking of my Russian!
But how happy I am with my students who plunge ahead, never faint-hearted, making lots of mistakes. How well some of them write in spite of the incorrect grammar, in spite of the limited vocabulary — how fresh some of their descriptions. They have to describe what they see without any pre-mixed colors and scarcely any canned language. How I admire them, how much I admire, for example, Lingtong! She came here at 16 from the south of China, without any English, and she threw herself into learning the language from her teachers, from her books, from experience on the job. How well she speaks, how hard she continues to pick up refinements in idioms (her grammatical mistakes are those of native New Yorkers).
And yet preying on me so much of the time — I feel it and it shows up in my journal entries about my Russian — is the shame of not knowing anything. Besides it not being very becoming of me, besides it contradicting my feeling about my own ESL students (that they have nothing to be ashamed of, that they are climbing a mountain, that they are doing something extremely difficult), I continue to complain of and feel ashamed of my lack of knowledge of Russian. On the other hand, I really am proud to have learned so much on my own. I am proud of figuring things out about the grammar simply from reading from Anna Karenina and “Lady with Little-Dog” and knowing that this belongs to that, and he (the character) would not say that, so maybe it’s this, and how this must be an object and this an adjective.
Of course through my self-teaching I’m understanding better the agony of some of my students, how Irina would turn to her compatriot Sofiya with a look of panic on her face, and how she and some of my Chinese-born students watch my mouth for clues — sometimes, a moment later, repeating or mouthing my phrasing; wincing, lost, some of them eager to be asked the very question they know how to answer, but no other question! The complaints about synonyms! Why? Why are there two words for this? Well, I explain, there are three. My Chinese-born students complaining about my correction of words they looked up! “Is right! — Why not right, Professor?”
“It’s right, but there are other words that are better — that mean just what you mean, but don’t mean the other things anybody would think of before that. It’s ambiguous.”
Russian students know that word.
The hopelessness of learning a new language.
I realize that it’s good my students hear their writing out loud. I like my short assignments where they write an anecdote or a poem and I collect them and read them all aloud. Under pressure of time, yet free of the pressure that it has to be an essay or good or finished, they write with the words they have. They work with the tenses they have.
As for reading, it is so hard! And of course it’s good that they read a conversational voice. Langston Hughes’s "Simple" stories, for instance, have voice in the narration and lots of dialogue. My students get the humor. I wonder what humor I could possibly understand in Russian. I have read with feeling the passages where both Annas (in both Anna Karenina and “Lady with Little-Dog”) break down in tears. I have been refortified by remembering the significance that Irina attached to her breaking down in tears while reading in her education course Torey Hayden’s One Child. So I know that my ESL students are way ahead of me, but that they were all where I am now. That makes me hopeful that I will eventually reach their fluency.
But I will never, unless I change my personality, have Russian the way Lingtong has English.
I imagine myself visiting Yasnaya Polyana, Tolstoy’s estate, next summer, and I will be or feel humiliated. But look how far I’ve come! Look how far! That will be running through my head in my humiliation. We are not humiliated by what we’ve fallen to, but by what we are striving to attain.
Bob Blaisdell is a professor of English at City University of New York’s Kingsborough Community College.
Several years ago, I agreed to serve as faculty adviser to a newly formed student organization, the Multilingual Legal Advocates. The group’s mission is to explore and promote the use of foreign languages in the practice of law. Its members, most from immigrant homes, offer their bilingual skills to the St. John’s University Law School’s Elder Law and Child Advocacy clinics and other nonprofit groups. Each spring, I meet with the recently elected and always enthusiastic members of the multilingual group’s board to discuss their plans. This year, that discussion came on the heels of an immigrant march on Washington along with organized pleas to place undocumented college students on a path to citizenship. Juxtaposing my student meeting against the touching news stories of young lives “on hold” gave me pause. I could not help but note the difference immigrant status makes for young people pursuing the American dream.
Just to clarify, the law school where I teach is located in Queens, New York, one of the most multi-ethnic counties nationwide. Not surprisingly, the school has a large population of bilingual/bicultural students of immigrant background. As law faculty, we are particularly familiar with the Supreme Court’s 2003 ruling in Grutter v. Bollinger. There the justices deferred to the judgment of public universities, based on the value of student diversity, to consider race and ethnicity in university admissions. A diverse student body, the justices explained, not only contributes to a robust exchange of ideas in the classroom, but also furthers the mission of universities and law schools as training grounds for the nation’s leaders. As the Court made clear, the path to leadership must be open to talented individuals regardless of race and ethnicity.
Each year, as I have come to know students active in the multilingual advocacy group as well as others, many have shared with me their personal narratives, traversing themes of joy and angst in defining themselves as newly minted Americans. They poignantly talk about cultural gaps between them and their parents who find the openness and permissiveness of American society difficult to comprehend. Yet they also talk about their strong family and community ties, their regular contacts through telephone and Internet with relatives left behind, and their desire to pass their language and culture on to their own children. They have a profound sense of responsibility and gratitude toward their parents for beginning anew in a land that offers opportunities not available back home.
I am invariably struck by their seriousness, but also by their optimism and their big dreams. In one sense, they have a gravitas and “true grit” about them, a far lesser air of entitlement than most of today’s students. In another sense, they exude an inspiring faith in the boundless possibilities that an American law degree can bring, notwithstanding the recent downturn in the job market.
Many of them were born in the United States. Presumably all are legally in the country. If not, there would be no reason to pursue a career in the law as they could not be admitted to state bars. Yet within the legal academy we never make note of this obvious point. In a similar way, through all our faculty discussions of admissions, from U.S. News & World Report rankings to questions of merit- versus need-based scholarships and the importance of diversity, we never mention the thousands of students, some of them raised in this country from a young age, whose immigration status prevents them from even making it to the law school admissions process.
Every year, approximately 65,000 undocumented immigrant students graduate from U.S. high schools, a small but nonetheless significant number compared to the 16 million college students nationwide. Most have overcome language differences and economic hardships. For a sizable number, even a basic college education is now beyond their grasp. Any thought of a professional career hangs on a remote possibility that government someday might act to regularize their status. Meanwhile, many members of the academy, especially at the graduate level, remain benignly apathetic toward their plight.
By way of contrast, educators and researchers, myself included, spend considerable time and energy arguing in support of educational rights for young immigrant children, especially those for whom English is not their first language. We endlessly pick apart the No Child Left Behind Act and fret over NCLB’s impact on students who lack proficiency in English. At the same time, we take comfort in the Supreme Court’s 1982 landmark decision in Plyler v. Doe declaring that states and local school districts cannot deny free public schooling to undocumented immigrant students. That decision was based largely on the Court’s belief that the law should not hold innocent children responsible for a condition they did not create nor could they change. To hold otherwise, the justices feared, would produce a “subclass of illiterates … surely adding to the costs of unemployment, welfare, and crime.” And so the nation, bound by federal constitutional law, invests valuable resources in educating these children through grade 12. At that point, the state’s legal obligation ends, as do many students’ hopes for a better life.
Only 10 states allow unauthorized immigrant students to register at reduced-rate tuition at state universities. North Carolina has witnessed sustained attacks on the right of these students to even attend public colleges while South Carolina in 2008 led the way in explicitly banning them from enrolling. Yet even where they are eligible for in-state tuition, their lack of legal residency bars them from opportunities that have made higher education affordable and possible for generations of poor and middle-class Americans: state and federal grants and loans, a vast array of privately funded scholarships, and the option to work one’s way through school earning at least the minimum legal wage. And though some manage to complete college, without proper documentation they are confined to an illegal job market that underpays and underemploys them. Certification requirements likewise preclude them from realistically pursuing a professional degree.
The remedy for these ills, as portrayed in the media and political circles, lies in the Development, Relief, and Education for Alien Minors (DREAM) Act, various versions of which have been languishing in Congress since at least 2001. The Act now has 34 cosponsors in the Senate and 113 in the House. Senate majority leader Harry Reid (R-Nev.) has pledged to include the Dream Act provisions in immigration reform legislation. As the ground daily shifts on the issue, that promise searches for broad bipartisan support in a Congress torn by ideological factions.
The Dream Act, as currently conceived, would afford high school graduates of good moral character, who entered the United States at the age of 15 or younger and have resided in the country for at least five years, the opportunity for conditional permanent residency. That status would allow them to work and obtain a driver’s license and make them eligible for federal work-study and student loans. If within a six-year period they either graduate college or complete at least two years in good standing (or serve in the U.S. armed forces for at least two years), they would obtain permanent residency enabling them to apply for citizenship. The Act would further lift the federal ban on states’ providing in-state tuition to undocumented immigrants unless they offer the same benefit to U.S. citizens regardless of residence, thus reducing state costs and encouraging more states to adopt in-state tuition policies.
As groundbreaking as the Dream Act appears, however, immigrant advocates rightly argue that it does not go far enough. Without eligibility for Pell Grants and certain other federal financial assistance, college education and consequently a sure track to citizenship still will fall outside the financial reach of many capable students. Besides, the Act leaves the states free to deny in-state tuition and state financial aid even to students who meet the conditions. That bow to states’ rights, though troubling, is constitutionally grounded in the states’ traditional autonomy over higher education matters.
The similarities in background and aspirations between the potential beneficiaries of the Dream Act and my first- and second-generation law students are striking while the differences in life scripts are equally disheartening. Both groups are in this country by family choice and not of their own volition. Both are eager to become part of the American social and political fabric. Many passionately embrace the new while not completely casting off the old. Some speak accentless English while others reveal a hint of their home language. Most have come through the American public school system with all its assurances of equal opportunity and freedom.
For one group, however, those assurances are real, while for the other they are empty. One basks in the sunlight of higher education and professional school training with all the attendant social and economic advantages. Far too many in the other toil in the shadows of the underground economy, wasting bilingual skills and bicultural understandings that could better serve national purposes in a world that grows increasingly interdependent and transnational. One can only imagine the shamefully untapped numbers of future lawyers, doctors, social workers, engineers, and other professionals poised to help bridge the linguistic and cultural gaps that now divide us from each other and from the rest of the world.
That is not to deny that broad scale immigration reform is complicated, tied as it is to economic interests and national identity. Nor does it deny the critical need to stem the tide of those illegally entering the country. Yet as we pride ourselves on the diverse perspectives that immigrant students bring to graduate and professional classrooms, we also must recognize that unless and until this piece of the immigration stalemate is broken, there are thousands of qualified and motivated young people who, through no fault of their own, will never reap the benefits of that intellectual mosaic. For them, the American dream implicit in Plyler almost inevitably becomes the immigrant nightmare. Meanwhile for the nation, the full potential of a diverse professional workforce envisioned in Grutter remains unrealized. And as for those of us who educate the next generation of professionals, let us visibly join forces with those young people who are marching thousands of miles to make their voices heard.