Federal appellate court rules section of Alabama’s immigration law requiring schools to verify, and collect data on, enrolling students’ immigration status violates students’ equal protection rights

Hispanic Interest Coalition of Alabama (HICA) v. Alabama, Nos. 11-14535, -14675 (11th Cir. Aug. 20, 2012)

United States v. Alabama, Nos. 11-14532, -14674 (11th Cir. Aug. 20, 2012)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit (AL, FL, GA) has ruled that the section of Alabama’s immigration law (“Section 28”) requiring public schools to verify, and collect data on, the citizenship and immigration status of enrolling students violates the Equal Protection Clause, and that at least one of the Hispanic Interest Coalition of Alabama (HICA) Plaintiffs has standing to challenge Section 28, reversing a district court’s denial of HICA’s motion for a preliminary injunction to bar enforcement of that provision. The panel remanded the case to the district court for entry of the preliminary injunction.

In the companion case, United States v. Alabama (“USA”), the same three-judge panel has dismissed the United States’ appeal regarding Section 28 as moot, finding that it was unnecessary to address the United States’ argument that Section 28 is also preempted by federal law, because the panel already determined that Section 28 violated the Equal Protection Clause in the HICA case.

Between the two panel decisions, the panel also ruled on several challenges to other sections of the immigration law, however, none were related to public elementary and secondary education. This case summary focuses only on Section 28, and the panel’s rulings on the other sections of the immigration law are discussed in the Editor’s Note below.

Facts/Issues:

In June 2011, House Bill 56, “the “Beason–Hammon Alabama Taxpayer and Citizen Protection Act” (H.B. 56), was signed into law. As the three-judge panel noted in the USA decision, the stated purpose of the legislation is to discourage illegal immigration within the state and maximize enforcement of federal immigration laws through cooperation with federal authorities.

Section 28 of H.B. 56 provides a process for schools to collect data about the immigration status of students who enroll in public school. The panel stated:

Schools are required to determine whether an enrolling child “was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States.” That determination is made based on the birth certificate of the child. If none is available, or if the certificate reflects that “the student was born outside … the United States or is the child of an alien not lawfully present in the United States,” then the enrolling child’s parent or guardian must notify the school of the “actual citizenship or immigration status of the student under federal law.” This notification consists of (a) official citizenship or immigration documentation and (b) an attestation under penalty of perjury that the document identifies the child. If the statutory notification is not provided, then the student is presumed to be “an alien unlawfully present in the United States.”

Before H.B. 56 became effective, the HICA Plaintiffs, consisting of multiple organizations and individuals, along with the United States, filed suit in federal district court to invalidate certain provisions of the law. The HICA Plaintiffs and the United States both moved to preliminarily enjoin the operation of numerous provisions of the law, including Section 28. The HICA Plaintiffs and the United States challenged Section 28 on the ground that it was preempted by federal law. The HICA Plaintiffs also challenged Section 28 as violative of the Equal Protection Clause. The district court consolidated the HICA and USA cases for purposes of deciding the injunction.

The district court denied both parties’ motions for preliminary injunction regarding Section 28, finding that none of the HICA Plaintiffs had standing to challenge Section 28, and did not reach the Equal Protection issue. In the USA case, the district court found that the United States would not have a likelihood of success in its preemption challenge.

Both sides appealed. The United States and HICA Plaintiffs contested the district court’s denial of a preliminary injunction. Alabama cross-appealed the district court’s grant of preliminary injunctive relief of other sections of the immigration law not discussed in this summary. After filing its notice of appeal, the United States and HICA Plaintiffs sought from the Eleventh Circuit an injunction pending appeal to prevent enforcement of the sections for which the district court denied an injunction. An Eleventh Circuit panel granted in part the motion for injunction pending appeal, enjoining enforcement of sections 10 and 28.

Ruling/Rationale:  The three-judge panel reversed the district court’s decision, and remanded to the district court for entry of a preliminary injunction. The panel concluded that at least one organization has standing to challenge Section 28, and that the HICA Plaintiffs are likely to succeed on the claim that Section 28 violates the Equal Protection Clause. Because the panel found in favor of the HICA Plaintiffs on their Equal Protection challenge, the panel dismissed the United States’ appeal regarding Section 28 as moot and did not decide the United States’ preemption question.

Standing

The panel disagreed with the district court’s threshold finding that none of the HICA Plaintiffs had standing to challenge Section 28. Citing Eleventh Circuit precedent, the panel stated that “an organization has standing to sue on its own behalf if the defendant’s illegal acts impair its ability to engage in its projects by forcing the organization to divert resources to counteract those illegal acts,” and a cognizable injury is found and organizational standing would be proper when an organization is forced to “divert resources from its regular activities to educate and assist [affected individuals] in complying with the [challenged] statute.”

The panel identified that Plaintiff Alabama Appleseed Center for Law & Justice, Inc. (Appleseed) had claimed injuries analogous those relied on previously by establish standing. Through declarations, Appleseed explained how Section 28, in particular, has affected and will continue to affect his organization. The panel noted that Appleseed received many inquiries prompted by the passage of H.B. 56 and related to Section 28, “including questions about how to enroll children in school, whether children should be enrolled, how schools will use the information collected, and whether parents will suffer immigration consequences as a result of a child’s enrollment.” The panel also noted the presentations hosted by Appleseed to convey information about the consequences of the law, the time and money expended on the planning and execution of these events that has forced the organization to divert resources from other immigration policy work, and that these endeavors “will continue to be detrimentally impacted” as they will have to be “substantially curtail[ed] or stop[ped].” The panel found these alleged injuries to be sufficient under its precedent to confer standing on Appleseed.

Equal Protection Clause

The panel also disagreed with the district court’s finding that the HICA Plaintiffs were not likely to succeed on the merits of their Equal Protection challenge to Section 28 when the district court denied the HICA Plaintiffs’ motion for preliminary injunction.

In beginning its analysis of the HICA Plaintiffs’ challenge, the panel stated that “the specific interplay between the types of individuals affected by the statute and the deprivation at issue may justify requiring a heightened level of scrutiny to uphold the statute’s categorization.” Plyler v. Doe, 457 U.S. 202 (1982).

The panel rejected Alabama’s argument that heightened scrutiny is not warranted because “Section 28 is only a means to collect data, which does not implicate any right protected by the Equal Protection Clause.” The panel responded that Alabama’s argument does not conclusively resolve the equal protection inquiry before it, nor is it enough for Alabama to argue that Section 28 does not by its terms purport to deny an education to any child. Instead the panel identified that its duty “is to analyze whether Section 28 operates in such a way that it ‘significantly interferes with the exercise of’ the right to an elementary public education as guaranteed by Plyler.” In Plyler, the Supreme Court identified the “fundamental role” of education “in maintaining the fabric of our society,” and, thus, “required a heightened justification – a substantial interest of the state – in order to sustain the debilitating effects that a lack of education can have on the specific community of individuals affected by the law and the country as a whole.” The panel concluded that Section 28 does operate in such a way, and found no substantial state interest to justify the interference.

The panel initially agreed with Alabama that Section 28’s preliminary requirement to show a birth certificate applies to every child who enrolls in school. However, the special impact of Section 28 challenged here is the “state-mandated disclosure of the immigration status of the child (and possibly his or her parents) upon enrollment,” and that “[c]onsequently, Section 28 operates to place undocumented children, and their families, in an impossible dilemma: either admit your unlawful status outright or concede it through silence.”

The panel found the mandated disclosure of a child’s unlawful status as a prerequisite to enrollment in public school to be a “hurdle [that] will understandably deter this population from enrolling in and attending school” because, as unlawfully present aliens, “these children are subject to deportation,” and removal proceedings can be instituted upon the federal government being informed of their undocumented status.” The panel stated it is of the mind that an increased likelihood of deportation or harassment upon enrollment in school significantly deters undocumented children from enrolling in and attending school, in contravention of their rights under Plyler.

The panel also rejected Alabama’s argument that Section 28 restricts the dissemination of the private information of these children and their families, citing the exception in Section 28 that permits disclosure under two federal statutes which require Alabama to provide immigration-related information to the federal government and other states upon request and prohibit Alabama from restricting this transfer of information.

Having concluded that Section 28 substantially burdens the rights secured by Plyler, the panel stated that it may only uphold it if the provision “furthers some substantial state interest.” The panel noted initially that Alabama only attempted to defend Section 28 under the rational basis standard, which the panel stated was alone sufficient to allow it to conclude that Section 28 cannot be upheld since under heightened scrutiny, Alabama bears the burden of demonstrating that the measure is constitutional. However, the panel did not find convincing any of the various justifications offered by Alabama to survive heightened scrutiny, i.e., the desire to collect data about the costs incurred by schools to educate unlawfully present children, to forecast and plan for any impact by their presence, to use the collected data to defend litigation involving costs of illegal immigration, or to enlighten the public about the impacts of illegal immigration.

The panel also noted that in the USA case, Alabama conceded in its briefing that Section 28 “is … unlikely to yield particularly precise data,” thereby recognizing that the stated legislative purpose will probably not be effectuated by the data collection provision. The panel did not find Alabama’s justifications substantial enough to justify the significant interference with the children’s right to education under Plyler, and concluded that Section 28 violates the Equal Protection Clause.

Lastly, the panel found that the equities favor enjoining the operation of Section 28, in that that provision imposes a substantial burden on the right of undocumented school children to receive an education. The panel stated that Alabama has no interest in enforcing a state law that is unconstitutional, and the interference with the educational rights of undocumented children is not a harm that can be compensated by monetary damages. “Given the important role of education in our society, and the injuries that would arise from deterring unlawfully present children from seeking the benefit of education, we conclude that the equities favor enjoining this provision.”

Hispanic Interest Coalition of Alabama (HICA) v. Alabama, Nos. 11-14535, -14675 (11th Cir. Aug. 20, 2012)

United States v. Alabama, Nos. 11-14532, -14674 (11th Cir. Aug. 20, 2012)

[Editor's Note:  As noted in the case summary above, between the two opinions, the three-judge panel issued decisions on a number of other provisions in Alabama's immigration law, in addition to Section 28. As reported on al.com, the panel:

•  "[L]et continue … a requirement that police determine the immigration status of people they stop”;

•  “[A]llowed … a provision allowing police officers to detain people they have reason to believe are in the country illegally”;

•  “[R]estrict[ed] illegal immigrants from enrolling in public colleges in Alabama”;

•  “[Made] it against the law for illegal immigrants to enter into transactions with government entities”‘;

•  “[K]ept an injunction on a section of the law that says state courts cannot enforce contracts between a party and an illegal immigrant”;

•  “[U]pheld the lower court’s decisions to temporarily allow police officers to detain people when they have reason to believe they are illegally in the country, and to give police 48 hours to determine whether a person caught driving without a license is legally in the country”.

Source:  al.com, 8/20/12, By Kim Chandler; Kent Faulk, contributor

The same day the three-judge panel issued decisions in the two companion cases summarized above, the same panel also issued its decision on Georgia’s immigration law. In Georgia Latino Alliance for Human Rights v. Georgia, the panel addressed Sections 7 and 8 of the law to determine if they were preempted by federal law. It found that Section 7, which codifies three separate crimes involving interaction with an “illegal alien,” is preempted, based on Arizona v. United States, 132 S. Ct. 2492 (2012).

As to Section 8, which “authorizes police officers to investigate the immigration status of individuals who cannot produce adequate identification to prove citizenship, provided probable cause exists that the individual has committed a crime,” the panel found, based on the Arizona case, that the “[p]laintiffs cannot establish that they are likely to succeed on the merits of their preemption argument in this preenforcement challenge to Section 8.”

For background on both the Alabama and Georgia cases, see the Sua Sponte item in the July 12, 2012 edition of Legal Clips, which contains links back previous Legal Clips items on the cases, as well as the Arizona v. United States decision.

For a discussion of commonly asked legal questions related to undocumented students, see the joint publication of the NSBA and the National Education Association, “Legal Issues for School Districts Related to the Education of Undocumented Children”.]

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