Will other states follow Alabama’s lead on school immigration checks?

Educators and immigration advocates are blaming Alabama's controversial new immigration law for widespread absences among Hispanic kids in the state's public school system this week. The omnibus law, like most of the state-level anti-illegal immigration legislation passed over the past two years, operates via "attrition through enforcement"--a deliberate effort to encourage illegal immigrants to leave the state out of fear of tougher laws.

But unlike the anti-illegal immigration laws passed in Arizona, Georgia, South Carolina, Arizona and Indiana, Alabama's law also targets children and schools. And since a federal judge let that provision go into effect last week--suggesting it has a shot at passing constitutional muster--anti-illegal immigration advocates tell The Lookout that other state lawmakers may move to adopt similar measures.

Alabama schools are now required to compile lists of how many students are illegal immigrants or are the children of illegal immigrants. Schools administrators must ask parents to present birth certificates for their kids. If the parents don't produce a certificate, they can either swear under oath that their child is a legal immigrant or citizen or do nothing--in which case the school will assume that the child is undocumented.

After all the state's schools have turned in their lists, the education department must "analyze and identify the effects upon the standard or quality of education provided to students who are citizens of the United States residing in Alabama that may have occurred, or are expected to occur in the future, as a consequence of the enrollment of students who are aliens not lawfully present in the United States."

Kristen Williamson of the Federation for American Immigration Reform, a group that wants to reduce the number of illegal and legal immigrants in the country, notes that compiling this kind of information is the first step to mounting a challenge against the 1982 Supreme Court decision Plyler v Doe. In that ruling, the Court decided that public schools must educate all children, regardless of immigration status.

In that Plyler decision, the court said Texas had not proven its argument that undocumented children negatively affect the quality of other kids' education. The court also found that denying public education to illegal immigrant children would create an "subclass of illiterate persons" who would be a drain on society--and that it was unfair to punish children for the actions of their parents.

Anti-illegal immigration groups dismiss that position, and insist that the children of illegal immigrants hurt their peers because they are more likely to be in English-as-a-second-language courses, which cost schools money. Williamson says there is very little data right now to prove that contention, because schools do not ask or report the immigration status of their students. Laws such as Alabama's would change that.

"This will become model legislation," she said. "This is really on the forefront."

Daryl Metcalfe, a Republican Pennsylvania state representative who founded a national group called State Legislators for Legal Immigration in 2007, told the Lookout that he has no plans to introduce a similar bill this year, but that he thinks other states might do so.

Metcalfe led an effort last year to provoke the Supreme Court to reconsider the 14th Amendment, which says that anyone who is born on U.S. soil is a citizen. Lawmakers in four other states introduced similar bills challenging birthright citizenship, but none attracted much support.

Metcalfe also said that collecting immigration data on schools could be used to challenge Plyler v Doe.

"I think there's an interest across the country among state legislators [in the bill]," he said. "Alabama's legislation doesn't do anything except collect the data, but just collecting the data is having an impact." Metcalfe is referring to the widespread absences at the state's schools this week, which suggest that the laws may have encouraged illegal immigrants to leave the state or to keep their children home.

About 2,300 Hispanic students--7 percent of the entire Latino school population--were absent on Monday. According to Alabama Education Department Spokeswoman Malissa Valdes, absences Tuesday and Wednesday fell to around 1,500 each day, which is still nearly twice the normal rate.

Valdes credits the modest drop in absences to the education department's public outreach efforts--in Spanish and English--explaining to parents that they will not face any adverse consequences if they're unable to produce a birth certificate for their child. Some parents may have already the left the state, however, fearing the provision of the law permitting local police to question them about their immigration status during stops.

"We are concerned that many children who were born in this country and are U.S. citizens are now afraid to attend school because they have family members who lack documentation," said Linda Tilly, Executive Director of the non-profit VOICES for Alabama's Children, in a statement. "The failure to educate children who now are afraid to come to school is a loss for us all."

Metcalfe said he's unconcerned that the law is causing some children who are U.S. citizens to flee to another country with their families. He argues that such children should not have been granted citizenship even though they were born in America. (Most children of immigrants in Alabama are U.S. citizens, according to data from Kids Count.) "They should be taking their child with them and going back to where they came from," he said. "They didn't deserve to be granted citizenship in the first place."

But Metcalfe's unsuccessful bid to reinterpret the U.S. Constitution to exclude birthright citizenship may also bode ill for efforts to let states exclude immigrant children from getting an education. Both of these initiatives target children, and have been derided as extreme and mean-spirited. During last year's big push to enact more state-level immigration crackdowns, lawmakers introduced several bills to require public schools to compile information on the immigration status of their students, but none of those measures passed.

Arizona Sen. Russell Pearce, the architect of that state's SB 1070 law in 2010, introduced a similar bill in an omnibus slate of bills that would also have required the state to issue a separate birth certificate to children of illegal immigrants. Several business groups opposed the bills, and Republican members of the legislature joined with Democrats in killing it.

Elena Lacayo from the National Council of La Raza, a Latino civil rights group, said she doubts the schools provision will gain traction. "I anticipate that based on our experience on the Arizona legislation that we'll see a lot of rejection of this bill," she said. Last year, just five states passed laws requiring local police to ask immigration questions, even though 30 states took up the issue.

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