Sweet Home Alabama?

The higher education provisions in the state immigration law currently in court show the statute's authors to be on the wrong side of history and policy, writes Michael A. Olivas.

October 13, 2011

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. § 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.


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