"There is a very a strong argument that [the schools] provision in the Alabama law is just unconstitutional because, even though they're permitting the children to come to school, they're creating this situation where they're not likely to go to school," says Rosemary Salamone, a law professor at St. John's University in Jamaica, N.Y.
Schools Caught in the Middle?
For this reason, Alabama school officials may find themselves caught between state law and federal civil rights law.
The US Department of Education's Office for Civil Rights in May sent a guidance letter sent to schools. It advised them to ensure that their process for requiring student documentation does "not have a chilling effect on a student's enrollment in school."
The letter cited both the Civil Rights Act of 1964 and the Plyler decision. It's not only against the law to directly block a child's enrollment, the letter essentially says, but also to do things that could reasonably result in them not receiving a public education.
Advocates of the Alabama law say it is not in conflict with federal mandates.
State education officials did a good job of issuing "guidelines that will limit the bookkeeping on the part of the school and not put the school in a position having to ... make any kind of judgment on students. We're about what's doing best for kids," says Earl Franks, executive director of the Council for Leaders in Alabama Schools, an administrators' organization.
In her decision Wednesday, US District Judge Sharon Blackburn did not rule on the merits of Section 28 of the Alabama law, but ruled that the plaintiffs didn't have standing to challenge it now because they couldn't show it posed a "concrete threat of injury" to them.
Principal Kelley says she's uncomfortable having to make any report on student immigration status, partly because it breaks down trust she has built up with immigrant parents. She has heard recently of families in a less-welcoming school district in Alabama being told, essentially, "Don't bother enrolling, you won't be here long."
Immigration enforcement has long been a federal role, but increasingly states have been crafting their own enforcement provisions.
"If the federal government had done its job by enforcing its own immigration laws, there would be no need for Alabama – or other states – to pass a law such as this," said Alabama Gov. Robert Bentley in a statement yesterday. "I will continue to fight at every turn to defend this law against any and all challenges."
A controversial immigration-enforcement law in Arizona has already been appealed to the Supreme Court, and the various appeals being made against the Alabama law make it even more likely that the high court will eventually take up the issue.