Thursday Alabama became the first state in the nation to require public schools to check the immigration status of children when they enroll.
A judge's ruling Wednesday upheld several portions of Alabama's tough new immigration law, including the section on public-school enrollment.
Advocates of the law say it doesn't block enrollment in schools, but simply enables the state to track the number of illegal-immigrant students and calculate the costs associated with educating them.
Opponents argue that in the broader context of the immigration-enforcement law, the school provision will serve as a barrier for many families and end up denying innocent children their constitutional right to a public education.
Civil rights and immigrant advocacy groups are already planning their appeals, but in the meantime, parents and educators are trying to sort out exactly how the law will play out in schools.
"This will have an incredibly chilling effect on children and on parents," says Mary Bauer, legal director of the Southern Poverty Law Center, one of the groups challenging the law in court. Coupled with other parts of the law, "it turns school officials and other government officials into, kind of, immigration agents, and that's a terrible message for kids and families."
For example, parts of the law require government officials to report illegal immigrants, says Ms. Bauer, so "there's a real risk that the law will be read to require schools to make reports of undocumented individuals," she says.
But state officials have decried what they call "fear-mongering" among critics.
What the Law does
Effective Thursday, schools are to check birth certificates only when a child is enrolling in an Alabama school for the first time. If officials determine the child isn't in the US lawfully or if a birth certificate is not presented, they then must ask the parent or guardian to provide other documentation or sign an affidavit about the citizenship or immigration status of the student. If that document doesn't arrive within 30 days, the school records that child as "enrolled without birth certificate" in the state data system.
The law doesn't require schools to report students' names when counting up the number who don't have legal documentation.
"We want to put a stop to the fear-mongering," said Larry Craven, Alabama's interim superintendent of Education, at a press conference Thursday afternoon. "No student should be denied enrollment for not providing a birth certificate."
That message does not seem to be getting through to many immigrant families, though.
Some illegal-immigrant parents whose children are citizens have already said they plan to leave, making comments like, "we don't want them to take away our children," says Dawn DuPree Kelley, longtime principal of Greenwood Elementary Schools in the Jefferson County School System.
"We've been having to troubleshoot today to offer encouragement ... and let them know that the best place is to have their child in school – that's their federal right [and] they are safe in school," says Ms. Kelley, who suggests 10 percent of her students are immigrants, most of them Hispanic.
One grounds for challenging Section 28 will be the 1982 Supreme Court case, Plyler v. Doe. After Texas schools tried to block enrollment of illegal immigrants, or charge them tuition, the high court ruled that children residing in the US, whether legally or not, have a right to a free public elementary and secondary education.
"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.