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Paul Easton

Abstracted from: Paul Easton, School Attrition Through Enforcement: Title VI Disparate Impact and Verification of Student Immigration Status, 54 Boston College Law Review 313 (January, 2013) (250 Footnotes) (Student Note)


      On June 9, 2011, Alabama governor Robert Bentley signed H.B. 56, the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (“the Act”), into law. Section 28 of the Act mandated that personnel at all public elementary and secondary schools in Alabama verify the immigration status of public school children at the time of enrollment. Only thirty-four days before passage of the Act, the U.S. Department of Justice's (DOJ) Civil Rights Division and the U.S. Department of Education's (“DOE”) Office for Civil Rights issued joint guidance to public school districts across the country regarding nondiscriminatory student enrollment procedures. The letter declared that “[school] districts may not request information [regarding immigration status] with the purpose or result of denying access to public schools on the basis of race, color, or national The joint guidance relied in part on the U.S. Supreme Court's 1982 decision in Plyler v. Doe, which held that the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution does not permit a state to provide a free public education to its citizens while denying an equal education to children who are not lawfully present.

      This guidance was the federal government's initial response to school enrollment practices being considered or implemented around the country that, according to the Departments, tended to chill participation by students and their families in public education based on their actual or perceived immigration status. In addition to Plyler, the Departments also relied on Tide VI of the Civil Rights Act of 1964, which has not yet been applied to a state law relating to immigration status in the context of primary and secondary public education.

      This Note argues that, notwithstanding section 28's invalidation on equal protection grounds by a panel of the U.S. Court of Appeals for the Eleventh Circuit, Tide VI's disparate impact regulations provide a preferable means for the federal government to challenge similar state laws in the future. Constitutional challenges to a facially neutral state data-collection measure modeled on section 28 present significant limitations--both analytical and strategic--that may allow for a carefully crafted provision to withstand judicial review at trial or on appeal. In contrast, the effects-based inquiry permitted by a Tide VI disparate impact claim avoids many of these difficulties, providing a clearer path to a successful challenge. Aggressive enforcement of the Tide VI disparate impact regulations, as hinted at by the DOE and DOJ in their joint guidance, will deter state lawmakers from repeating such ill-conceived forays into immigration regulation in the realm of primary and secondary public education.

      Part I of this Note examines the development of section 28 of the Act, its effect on Alabama's educators, students, and families, and its treatment by the federal courts. It further discusses similar provisions pending in state legislatures around the country as well as section 28's historical predecessors. Part II describes Tide VT's conceptual origins in the Reconstruction era and its roots in equal protection jurisprudence. This Part then provides an overview of the divergent paths that Tide VI disparate treatment and disparate impact claims have taken over the past forty years. Finally, Part III uses section 28 as a case study to analyze the merits of a Tide VI disparate impact challenge to state laws mandating school verification of students' immigration status, concluding that it would provide a successful method for the federal government to prevent such a law from taking effect in our nation's public schools.

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      Despite consistent guidance from federal agencies regarding the illegality of public school officials' inquiries into students' immigration status, bills requiring such verification have been introduced in state legislatures with increasing frequency in recent years. Even in its brief enforcement period, section 28 of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act clearly illustrates the negative impact such a law has on Hispanic students and their families. Constitutional challenges to this type of carefully crafted, facially neutral regulation face significant analytical and strategic obstacles. Although a federal appeals court invalidated section 28 on equal protection grounds, the obstacles facing constitutional claims remain, providing no guarantee that a more tailored provision would meet a similar fate in the future.

      Tiitle VI's disparate impact regulations, on the other hand, embody the policy foundations and aspirations of equal protection jurisprudence while permitting an effects-based inquiry in the absence of proof of state legislators' invidious intent. Although private enforcement of the disparate impact regulations has been severely limited, the federal government has a clear interest in aggressive application of the regulations in this unique context--to ensure that federal tax dollars do not perpetuate discriminatory practices visited upon a class of vulnerable children who deserve equal access to a quality education in all of our nation's public schools.