• February 16, 2012
    No Undocumented Child Left Behind
    Plyler v. Doe and the Education of Undocumented Schoolchildren
    Michael A. Olivas

    By Michael A. Olivas, William B. Bates Distinguished Chair of Law at the University of Houston Law Center, and director of the school’s Institute of Higher Education Law & Governance.

    Immigration has always been a complex transaction and dangerous sojourn, and local forces have attempted to control the process, especially as the country was forming and borders were not yet fully established. Throughout United States history, state and local politicians have introduced and enacted thousands of anti-alien bills. Some legislation has even been so mean-spirited as to advocate a repeal of 1982’s  Plyler v. Doe, the watershed Supreme Court decision that required Texas to give undocumented children free access to public schools. In difficult economic times, elected officials find scapegoating aliens is an easy way to reach low-hanging fruit, as if these workers were the source of the sputtering economy. For example, Alabama enacted HB 56 (the “Alabama Taxpayer and Citizen Protection Act”) in 2011, regarded as the most-draconian anti-immigrant legislation to date. The statute even required schools to conduct a census of undocumented children in schools, until it was enjoined by the trial and Circuit judges.

    Such arguments and legislation, mixed in a cauldron amidst shrill warnings about the rights of “real Americans,” lead inevitably to a sense of divisiveness, racial superiority, and undifferentiated prejudice. Such imprecise, undifferentiated, and broad-brush swipes at “illegals” and “anchor babies” generally tar all the groups. Free-floating racialized animus often leads to a generalized resentment against all people of color, or “others,” especially those constructed as “foreigners.”  If there were a group that holds promise to become productive, undocumented K-12 and college students would surely be that group. With the generally dismal schooling available to these students, that even a small percentage could meet the admission standards of colleges and universities is extraordinary. Given their status and struggle, each successful student represents a story of substantial accomplishment. Most of these students have parents who struggled to bring them to this country and exercised considerable risk to enable their achievements. That they succeed under extraordinary circumstances is remarkable to virtually all who observe them. These students’ success partially explains why so many educators and legislators have accepted Plyler and worked to assist them in navigating the complexities of school and college. Despite the success of anti-immigrant rhetoric in shaping a discourse and of restrictionists in fashioning resentments, reasonable legislators of both parties have attempted to address the issues these students face.

  • February 3, 2012

    by Jeremy Leaming

    Alabama’s harsh anti-immigrant law is already costing the state billions in lost revenue, according to a study by Samuel N. Addy, an economist at the University of Alabama.

    Reporting for Politico, MJ Lee notes that Addy’s report, “determined that the estimated 40,000 to 80,000 unauthorized immigrant workers fleeing the state have resulted in 70,000 to 140,000 jobs lost and $2.3 to $10.8 billion reduction in Alabama’s GDP annually.” The law moreover, is expected to cost the state “$56.7 to $264.5 million in reduced state income and sale tax collections, as well as $20 to $93.1 million less in local sales tax collections ….”

    Addy’s study centers largely on the law’s harm to the state’s overall economy, concluding that because it has already spurred scores of undocumented people to flee the state it has negatively impacted the state’s economic landscape. The professor says the “income generated by these people [undocumented workers fleeing the state] and their spending will decline. That results in a shrinking of the state economy and will be seen in lower economic output, personal income, fewer jobs, and lower tax revenues than would otherwise have been.”

    In coming to this conclusion about the law’s impact on the state’s economy, Addy, perhaps curiously, asserts that nobody “can fault the intent of the law” and that the law is “well-intentioned,” because it is aimed at tackling “illegal immigration.” He also highlights some “potential economic benefits of the law,” such as “saving funds used to provide public benefits to illegal immigrants; increased safety for citizens and legal residents; more business, employment, and education opportunities; and ensuring the integrity of various governmental programs and services.”

    Regardless of the law’s intent, its sweep has provoked protests throughout the state and some withering national scrutiny. Shortly after the law’s enactment, The New York Times opined that it was “the country’s cruelest, most unforgiving immigration law.”

  • January 17, 2012
    Guest Post

    By Jacob A.C. Remes, an Assistant Professor of Public Affairs and History at SUNY Empire State College. Mr. Remes is also David Carliner’s grandson.

    One should never mind being called an agitator, David Carliner liked to say. In a washing machine, it’s the agitator that gets the dirt out.  By the time Carliner – the namesake of ACS’s $10,000 public interest law prize – was 25, he had agitated himself into jail (for protesting in front of the German embassy when he was 16), onto police watch lists (for attending a party with interracial dancing), out of college (for organizing a high school protest), out of an apartment (for talking politics with the African-American maid), out of law school (after he was arrested again for passing out handbills), and onto a secret list of American citizens to be detained in camps “in case of emergency” (for the total of all these political activities).

    For all his bravery as a student activist – he traveled to every county in Virginia organizing against militarism and white supremacy, which put him at considerable risk of physical danger – it was later, as a lawyer, when Carliner really started getting the dirt out. In the 1950s, he became one of the country’s first immigration lawyers, quickly realizing that he could use his practice not only to represent immigrant workers and dissidents, but also in his battles to liberalize American society.

    Perhaps his most famous case began in 1952, when a Chinese seaman Ham Say Naim married a white woman named Ruby and applied for U.S. citizenship. Two years later, while his naturalization was still pending, Ruby sought an annulment, arguing that Virginia’s antimiscegenation law meant their marriage was invalid.  Carliner took the case to the Supreme Court, daring the justices – in the year after Brown v. Board of Educationto recognize state antimiscegenation statutes as unconstitutional. Unfortunately, the court ducked the issue and allowed the case to be decided by the Virginia Supreme Court, which found that the state had the power to “regulate marriage … so that it shall not have a mongrel breed of citizens.”

  • December 23, 2011


    by Nicole Flatow

    A federal judge yesterday blocked parts of a South Carolina immigration law that was modeled after the controversial Arizona law the Supreme Court will review this term.

    Courts have blocked portions of similar immigration laws in Alabama, Arizona, Georgia, Indiana and Utah.

    “This is all really just a way station on the way to the Supreme Court’s ruling in the Arizona case,” Temple University law professor Peter J. Spiro told The New York Times. “The South Carolina ruling is important in the short term in putting the law on hold. But the Supreme Court will have the final say.”

    U.S. district Judge Richard M. Gergel blocked provisions that would require immigrants to carry their registration documents and make it a crime to harbor or transport illegal immigrants.

    In the opinion, he noted the “traditionally predominant role of the federal government in the field of immigration.”

    Santa Clara University law professor Pratheepan Gulasekaram explains the federal government’s dominance in the field of immigration law and policy in his ACS Issue Brief, “No Exception to the Rule: The Unconstitutionality of State Immigration Enforcement Laws.”

  • December 16, 2011

    by Jeremy Leaming

    Just because the Supreme Court upheld Arizona’s law penalizing businesses for hiring undocumented workers, does not mean the state’s controversial, and exceedingly harsh, anti-immigrant law, SB 1070, is destined for approval by the justices.

    In an ACS Issue Brief, Pratheepan Gulasekaram, a Santa Clara University law school professor, explains why the Supreme Court’s narrow opinion in Chamber of Commerce v. Whiting issued in May, will likely have no bearing on the justices’ consideration of SB 1070.

    The law at the center of the Whiting opinion, the Legal Arizona Workers Act (LAWA), requires Arizona businesses to use the federal E-Verify system to ensure their employees are legally in the country, and penalizes those companies that hire undocumented workers. The 5-3 majority in Whiting concluded that Arizona’s E-Verify law was not preempted by the federal Immigration Reform and Control Act, which states that it trumps “any state or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ” undocumented workers. The majority concluded the licensing law, did not run afoul of the IRCA.

    Professor Gulasekaram calls it is a mistake to conclude that Whiting means Arizona’s SB 1070, much of which was invalidated by the U.S. Court of Appeals for the Ninth Circuit, is likely to be found constitutional by the high court.

    Instead Supreme Court precedent stands “for the proposition that state regulation of employment relationships between state employers and unlawfully present persons is permissible, if the federal government has not otherwise prohibited it,” Gulasekaram writes. That precedent, he continues, actually suggests it is most likely that he the high court will “strike down state immigration schemes like SB 1070.”

    Although both Arizona laws are aimed at making life difficult for undocumented persons in the state, only the law dealing with the employer-employee relationship, LAWA, is not preempted by federal immigration law. Indeed, the professor writes, “federal law contemplates the existence of state business-licensing laws through a textual exception in federal immigration law itself. And, even with this express exception, Whiting is neither a unanimous nor far-reaching opinion. At most Whiting stands for the proposition that state business-licensing laws that regulate employers will not reflexively be struck down.”

    But SB 1070, which requires state law enforcement officials to take on duties of federal immigration enforcement officials, is another story.