Alabama’s Immigration Law: The New Jim Crow

Editors Note: Since the writing of this article, several provisions of H.B. 56, including the education provisions discussed below, have been enjoined by the courts.

Alabama’s new law [2]—with provisions against hiring, harboring or transporting undocumented immigrants—is bad enough for adults. But it is potentially disastrous for kids. 

By requiring schools to determine the immigration status of every student at enrollment, the law makes it hard to tell the difference between educators and immigration officials.  It already has immigrant parents asking, “Should we keep our children out of school in September?” 

On the surface, Alabama’s H.B. 56 appears to be fashioned after Arizona’s infamous S.B. 1070 law [3]. But the real model wasn’t so far away. Take a good look. This law was inspired by something a lot closer to home: Jim Crow.

H.B. 56, which goes into effect on Sept. 1, justifies the requirement as a way to keep track of just how much money the state is spending to educate the children of undocumented immigrants. Never mind that immigrants—both legal and illegal—support schools by paying Alabama’s regressive sales tax (10 percent here in Montgomery, including on food) and local property taxes.

Some will argue that children brought here illegally should not get a public education. But the Supreme Court ruled otherwise almost 30 years ago, in Plyler v. Doe [4]. In 1982, the court ruled that Texas schools could not deny enrollment to the children of undocumented immigrants. The decision found that children—even those here illegally—had 14^th Amendment protections, should not be punished for the actions of their parents, and were safe from discrimination in the absence of substantial state interests to the contrary.  

Wanting to “take account” of the costs of ESL fails the substantial interest test. The majority in Plyler also said that refusing to educate these students “raises the specter of a permanent caste of undocumented resident aliens,” a permanent  “underclass” of illiterates who would burden society far more than the cost of educating them.

Maybe history has inured Alabama to such an underclass. The law requires school officials to keep track of students “born outside the jurisdiction of the United States.” But it goes even further. Schools must also determine which U.S. citizens among their students have parents who are “aliens not authorized to be in the United States.”  

Alabama didn’t go the Texas route and outright deny the right to an education. But H.B. 56 is a thinly veiled way to discourage immigrant parents from enrolling their children in school. It reminds one of the poll taxes and literacy tests that made voting, although theoretically legal, an impossible act for so many African Americans a half-century ago. 

It’s unclear exactly how schools will identify the unauthorized parents, and that’s part of its poisonous charm. Birth certificates don’t include the legal status of parents. Will all parents now be required to prove their legal status, or only those who look like immigrants? Must educators infer which soccer mom is a likely prospect? Will children be asked where their parents were born? In the absence of evidence to the contrary, schools are instructed to presume that the student should be tracked under the new law.

All of these scenarios are ugly; they will make immigrant parents unwilling to enroll their kids. But as a nation, we can’t afford to leave them behind. According to the U.S. Census Bureau, 20 percent of the students in grades K-12 in 2009 were the children of immigrants. Policies that don’t meet their educational needs or encourage their parents to keep them from school will leave us all behind as a nation. The cost will be far more than what Alabama pays ESL teachers.  

The new law is likely to drive some undocumented immigrants away from Alabama, as its authors intended. But it will also set in stone the underclass that the Supreme Court predicted. Like Jim Crow, the law strips away rights, from having legally enforceable contracts to accepting a ride to the bus stop. Like the segregated schools of Jim Crow, this law puts obstacles in the path of immigrant parents who want their kids to become educated.

Educators have not shown great enthusiasm for the law, and they shouldn’t. To his credit, Joe Morton, Alabama’s state superintendent of education, has decided that the law doesn’t take effect until after schools enroll students for the 2011-2012 school year. So it won’t be enforced until August 2012. Morton’s most likely counting on the law being declared unconstitutional by then.

No teacher or principal relishes the prospect of turning students or parents over to Immigration Customs Enforcement (ICE). None would want to help divide families. Yet Alabama teachers will soon be doing just that. Although the law includes nominal privacy protection, it specifically exempts requirements related to ICE. “Every state actor” must report known illegal immigrants.  

Obviously, any children pulled from school will suffer. The rest of us suffer, too. As a state and as a nation, we need as many well-educated people as possible in the years ahead. And for educators, already struggling as society’s latest whipping boy, the law is a blow to professional integrity. Teachers’ very ability to succeed depends on being trusted allies of students and families. That’s going to be tough to do after Alabama makes them deputies of ICE.

Costello is the director of Teaching Tolerance.