Tracking undocumented children

Buried in late last year’s $1.8 trillion budget Conference Report, which reflects Congress’s non-binding directives to agencies on how to spend governmental funds, are two paragraphs that target some of our nation’s most vulnerable children. 

These passages in the Conference Report asked the Department of Education and the Department of Health and Human Services, which run federal Head Start programs, to report on the cost of educating undocumented students.  The paragraphs may not seem like much, but they fly in the face of decades of constitutional law protecting undocumented children and their right to an equal education.   

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In the 1970s, Texas passed a statute that required undocumented children to pay tuition or be barred from attending public school. MALDEF challenged the law, in a case known as Plyler v. Doe.  After years of litigation, the case arrived at the Supreme Court, and the Court sided with the students – while the decision on constitutional law was not unanimous, each of the nine justices agreed that the Texas statute was bad policy.  In holding that undocumented children have an equal right to an education, the Court noted that “visiting condemnation on the head of an infant is illogical and unjust.”  Despite Congress’s subsequent codification of Plyler into immigration law, lawmakers at state and national level continue to implicitly and explicitly challenge the logical, and now well-established, constitutional principle that all children have an equal right to an education. 

In 2011, Alabama lawmakers passed one of the country’s harshest anti-immigrant laws, HB 56, which included a provision requiring data be collected on the immigration status of its students and of their parents.  This immediately became a significant burden on children and families because, in order to collect that data, each student in the state would have had to provide their immigration status and that of their parents.  In HICA v. Alabama, the Eleventh Circuit held the mandated data collection unconstitutional because it “unnecessarily burden[s] the children’s right to an education.”  Alabama appealed the ruling to the Supreme Court, which denied the requested review, effectively establishing that states cannot interfere with children’s right to an education by attempting to collect immigration status data.  Asking for proof of citizenship, even for data collection purposes, creates an unnecessary and unconstitutional burden on some of our nation’s most vulnerable children – such a cynical attack would never withstand judicial review.   

Even attempting to collect this data would create costly litigation nightmares for schools, school districts, states, and the federal government. For already underfunded schools, undertaking this effort with any shred of accuracy would be expensive and be impossible to implement without infringing on students’ rights.  The likely outcome would be increased spending at every level of government to derive a number that will lack any statistical integrity, resulting in a bigger and more intrusive role for government in education.   

More important, requiring students to reveal their immigration status would have a chilling effect on enrollment, as many families would remove their children from school for fear of being discovered and deported. Any potential benefit this policy’s proponents might tout, is far outweighed by the negative impact uneducated students would have on our economy and our society.  Every day, schools serve as a safe haven for children who are otherwise at risk of being victimized in a stressful living environment.  Any policy that would push them out of school, whether the stated intention or not, leaves children vulnerable for the sake of scoring political points. The American public, and especially Latino voters, will not stand for this.

Unfortunately, Congress has shown again that it is more consumed with pursuing politics than with legislating responsibly and protecting our basic constitutional rights.  Neither this Administration, nor any future administration, should fall for this trap. If they do, MALDEF and its allies will see them in court, for a case the government would quickly lose. Collecting this data would be a violation of equal protection under the Constitution and would only serve to further degrade the conversation on immigration, education, and race during a hotly contested election year.  Undocumented children, just like all children in our borders, will grow up to be our future leaders, workers, thinkers, and community members.  Their education is a non-negotiable, crucial aspect of our society.  The public must hold our elected officials to the highest standard, and ensure that each of our representatives understands that it is unacceptable to play cruel political games with our children’s education and the future success of our nation.

Fernandez and Senteno are attorneys at the Mexican American Legal Defense and Educational Fund.

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