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Kevin R. Johnson

Abstracted from: Kevin R. Johnson, Immigration and Civil Rights: Is the “New” Birmingham the Same as the “Old” Birmingham?, 21 William & Mary Bill of Rights Journal 367 (December, 2012) (235 Footnotes)


      Over the past few years, state legislatures have passed immigration enforcement laws at breakneck speed. As one commentator characterized it:

       Immigration law is undergoing an unprecedented upheaval. The states . . . have taken immigration matters into their own hands. In response to the widespread perception that the federal government cannot or will not control the border, state legislatures are now furiously enacting immigration-related laws . . . . These attempts to wrestle control of enforcement decisions from the federal government have cast into doubt the doctrinal core of immigration law: federal exclusivity.

      The architect of many of the state immigration enforcement laws, Kris Kobach, has stated that their aim is to encourage undocumented immigrants to “self-deport” by making their everyday lives as difficult as possible.

      Perhaps the most famous version of these laws, Arizona's S.B. 1070, struck a nerve and provoked calls for an economic boycott of the state. The flood of state immigration enforcement laws comes at the same time that, in hopes of convincing Congress to pass immigration reform legislation, the Obama Administration aggressively pressed immigration enforcement, setting all-time records for the number of noncitizens removed from the United States. In 2012, the Supreme Court struck down core provisions of S.B. 1070. However, it upheld one provision involving state and local immigration enforcement that may encourage like-minded states to copy Arizona.

      In 2011, Alabama, a state considered by some to be the heart and soul of Dixie, entered the national immigration debate, a surprise to many Americans given that the state is not ordinarily thought of as home to many immigrants. The Alabama legislature did not enact just any ordinary law but passed what some, including its supporters, claimed was the toughest state immigration enforcement law of them all. The Beason-Hammon Taxpayer and Citizen Protection Act, or H.B. 56, built on Arizona's controversial S.B. 1070, but goes further by seeking to directly and indirectly limit access of undocumented students to public education.

      This Article analyzes Alabama's foray into immigration enforcement. It looks at H.B. 56 with the basic understanding that the enforcement of immigration laws implicates the civil rights of immigrants and U.S. citizens. To show how the law responds to a growing Latina/o population, Part I of this Article briefly summarizes Alabama's immigration history. Part II contextualizes the events leading to the passage of H.B. 56 into the contemporary national debate over immigration. Part III generally considers the possible civil rights consequences of the law on immigrants and Latino/as. Finally, Part IV specifically focuses on Alabama's efforts to limit access to education by undocumented immigrants. As in the days of Jim Crow, ensuring educational access remains central to the struggle of outsiders for fundamental civil rights and full membership in American society.

      In analyzing Alabama's H.B. 56, this Article identifies parallels between the state immigration enforcement laws and the racial caste system of the Jim Crow South. It contends that race, class, and caste, with significant social and economic (labor market) aspects, are integral to both episodes in U.S. history. In each instance, supporters of the racial caste system invoked a claim of states' rights, or the equivalent, in the defense of state-sanctioned discrimination. Both then and now, access to education is ground zero for the parallel civil rights movements of the two eras.

      As the title of this symposium (“Noncitizen Participation in the American Polity”) suggests, the public is deeply ambivalent about the proper place of immigrants, especially undocumented ones, in American social life. The struggle for hearts and minds in the national debate on the issue has come to a head in recent years, with much attention paid to the increasing deportations of long-term residents of the United States, combined with the fact that millions of undocumented immigrants remain in the country. While minimizing or ignoring the impacts of the U.S. government's immigration enforcement efforts, many state legislatures, like Alabama's, have responded to the undocumented immigrant population with tough state immigration enforcement laws.

      Supporters of state intervention often claim that they merely want to promote obedience to the rule of the law; such claims are usually combined with the exaggerated and unproven accusation that the federal government has “failed” to enforce the immigration laws. This Article looks into, and beyond, this simplistic characterization to analyze how the current debates over immigration and immigration enforcement implicate the fundamental civil rights of residents of the United States and, specifically, the quest by Latina/os and immigrants for full membership in American society.

* * *


      Educational access, as we saw in the famous civil rights movement of the 1950s and 1960s, is often central to the struggles of outsiders seeking full membership in U.S. society. Today, we see immigrants and Latinas/os pursuing equal access to education, including public college and university educations. Through H.B. 56, the State of Alabama, as it did in resisting the desegregation of public schools in the days of Jim Crow, once again seeks to restrict equal school access to vulnerable students of color. The state justifies its exclusionary stand by invoking the claim that it seeks nothing more than to enforce the federal immigration laws.

      As the resistance to the efforts to limit educational access suggests, the United States is at a civil rights crossroads. Although millions of immigrants and undocumented immigrants live in the United States, the nation has been at best ambivalent about how the law should treat immigrants, especially undocumented ones. We, as a nation, must address the fundamental civil rights grievances of immigrant residents of this country. Until we do, we can expect more turmoil in the states over immigration enforcement and, consequently, continued assaults on the civil rights of immigrants and U.S. citizens of particular national origins, as seen in Arizona, Alabama, Georgia, South Carolina, and other states that have passed state immigration enforcement laws. Ultimately, even if federal preemption doctrine is at the center of many of the legal challenges, the civil rights of immigrants and Latina/os are at the core of the debate over the state immigration enforcement laws and immigration enforcement generally.

      State political leaders have repeatedly emphasized that the states must act because the U.S. government has allegedly failed to enforce the immigration law. The rationale for enacting state immigration enforcement laws therefore evaporates if Congress acts to reform the U.S. immigration laws in a meaningful way that can be effectively enforced. Consequently, if Congress addresses the current “broken” immigration system, it also might do much to address the civil rights deprivations suffered by Latina/os and immigrants today. As with the Civil Rights Act of 1964 and a slew of other pieces of legislation, congressional action is necessary to eliminate the “new” Birmingham for immigrants and Latina/os, just like it did the “old” Birmingham for African Americans.

. Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, University of California at Davis School of Law; A.B., University of California, Berkeley; J.D., Harvard University.