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