illegal immigration and the public schools the basic legal framework and potential issues arising...

Illegal Immigration and the Public SchoolsThe Basic Legal Framework and Potential Issues Arising from Increased Enforcement

Patrick L. Tanner, Esq.Burbidge & White

15 West South Temple, Suite 950

Salt Lake City, Utah 84101

(801) 359-7000

•Minor Students•Adult Students•Employees•Pending Legislation

Minor Students

• Illegal children• Legal children of illegal parents

Illegal Children

Plyer v. Doe, 457 U.S. 202 (1982)

Plyler v. Doe14th Amendment

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Plyler v. Doe

• Illegal aliens are NOT a suspect class;

• Education is NOT a fundamental right;

• Illegal children are not culpable;• Education IS tremendously

important.

Is Education a Fundamental Right in Utah?

Utah Constitution, Article X, Section 1“The Legislature shall provide for the establishment and maintenance of the state’s education systems including: (a) a public education system, which shall be open to all children of the

state; and (b) a higher education system. Both systems shall be free

from sectarian control.”

Impact of Plyer v. Doe

• States (and school districts) cannot exclude children based on illegal status

• School districts cannot require information disclosing immigration status (Social Security number)

• Reflected in various governmental programs and requirements

• Residency does not equal legal immigration status

Impact of Plyer v. Doe

League of Latin American Students v. Wilson,

908 F. Supp. 755 (C.D. Cal. 1995)

League of Latin American Students v. Wilson

• Voter-initiated statute• Prohibited schools from enrolling

illegal immigrant children• Required determination of

immigration status• Required reporting to immigration

enforcement

League of Latin American Students v. Wilson

• Statute was invalidated under the authority of Plyler v. Doe and the Federal Supremacy Clause.

Legal Children of Illegal Parents

14th Amendment“All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are citizens of the

United States and the State wherein they reside. ….”

Practical Considerationsfor Children of Illegal

Parents• Eligibility requirements• Custody of children when parents

are removed

Adult Students

Adult Education

Adult Education

• Can adult illegal immigrants receive adult education services?

• Is adult education a “public benefit?”

8 U.S.C. § 1621

Prohibits providing state or local “public benefits” to illegal aliens

8 U.S.C. § 1621

• “Public benefits” includes:– “any retirement, welfare, health,

disability, public or assisted housing, post secondary education, food assistance, unemployment benefit, or any other similar benefit …”

Utah Code Ann. § 63G-11-104

• Incorporates the federal definitions of federal and state and local benefits

• Requires verification of lawful presence upon application for such benefits

Elementary and secondary education do not appear to be “public benefits”

within this definition.

Rule R277-733-1 Definitions

(For Adult Education Programs)“‘Eligible adult education student’

means an individual who provides documentation that his primary and permanent residency is in Utah” and

falls within one of four categories.

Rule R277-733-6Adult Education Program

Student EligibilitySection A(3) allows for establishing

residency with bills and similar documents in addition to use of a

driver’s license or similar documents.

Employees

• Employment status verification• Employee identification cards

Employment Status Verification

• Utah Code Ann. § 63G-11-103– E-verify– Social Security Number Verification

Service– Public employers must verify the status

of a new employee

Employee Identification Cards

Utah Code Ann. § 63G-11-102Documents or cards that “identify the

bearer as an administrator, faculty member, student, or employee.”

Employee ID CardsUtah Code Ann. § 63G-11-

102• ID may only be issued to persons

with legal status• Exception: ID which conspicuously

states that it is only valid for the school campus or facility

Pending Legislation

• Illegal Immigration Enforcement Act– Representative Stephen Sandstrom

Illegal Immigration Enforcement Act

• Law enforcement verification of immigration status

• May not restrict ability to assist immigration enforcement

• Verification for public benefits application

• Enforcement actions

Illegal Immigration Enforcement Act

Implementation to be consistent with federal law and civil rights.

§ 76-9-1011: “All state and local agencies shall implement this section in a manner that is consistent with federal laws that

regulate immigration, protect civil rights of all persons, and establish privileges and

immunities of United States citizens.”

Illegal Immigration Enforcement Act

Law enforcement verification of immigration status

• Definition of law enforcement officer includes school district police officers

• Immigration status to be determined in connection with enforcing laws or ordinances

Illegal Immigration Enforcement Act

Citizen Actions• Failure to verify eligibility for

benefits• Limiting or restricting enforcement

of federal immigration laws• Civil penalty provisions

Illegal Immigration and the Public Schools

The Basic Legal Framework and Potential Issues Arising from Increased EnforcementPatrick L. Tanner, Esq.

Burbidge & White

15 West South Temple, Suite 950

Salt Lake City, Utah 84101

(801) 359-7000