Within his first week as president, Donald Trump signed an executive order denying federal funding to sanctuary cities. To answer educators’ questions about sanctuary cities, Teaching Tolerance turned to an expert, Naomi Tsu. She’s an attorney who oversees the Southern Poverty Law Center’s Immigrant Justice Project.
What is a sanctuary city?
A sanctuary city is a place that has decided to keep local resources to solve local problems. Some people think “sanctuary” means the city is harboring fugitives. That’s a misunderstanding of the term. A better term than sanctuary might be local control or safe city. I’ll use the terms sanctuary city and safe city interchangeably. A sanctuary city has limited the extent to which it will volunteer resources in support of federal immigration enforcement agents’ responsibility to enforce federal immigration law. These limits can take many forms: saying no to federal requests (known as “detainers”) to conduct joint patrols; refusing to jail an individual who has posted bond and a judge has said can be released; or refusing to gather more information—such as immigration status—than is needed to determine if an individual is eligible to receive services.
Any public place can take this path. Cities are the best-known examples, but counties, states, universities and school districts have also asserted that it’s not their responsibility to enforce immigration law.
Do sanctuary cities violate federal law?
No, sanctuary cities do not violate federal law. Federal law requires public entities to share and maintain information that has been gathered on an individual’s citizenship or immigration status. Federal law does not require compliance with federal requests to prolong detention. It does not impose an affirmative duty to gather information about place of birth or immigration status. It does not require localities to give local resources to assist federal immigration agents in carrying out their federal immigration enforcement responsibilities. So long as a local sanctuary policy does not limit communication or maintenance of information on a person’s immigration or citizenship status, it will not run afoul of federal law, and I know of no policies that restrict the sharing of such information.
Why would a city—or another entity—decide to designate itself as a sanctuary?
There are many reasons a city might choose to become a sanctuary. One reason is to keep residents safe. Law enforcement officers have said it’s important for members of immigrant communities to feel safe reporting crime—without being afraid of deportation of their family, friends or neighbors—so that criminals can be caught. If people who ask the police for help get swept up into deportation proceedings, others become afraid to call the police when they need help, and criminality flourishes.
A second reason some cities become sanctuaries is to protect local budgets. Federal immigration agents ask sheriffs to jail immigrants (“prolonged detention”), but the federal government generally does not reimburse sheriffs for the cost of housing individuals in prolonged detention. In addition, a city or county that is not a sanctuary risks having to defend against—and perhaps losing—a civil rights lawsuit. Several courts have held that prolonged detention is without legal basis and violates the federal Constitution’s ban on unreasonable seizures. These courts have further held that a city is not off the hook for having prolonged detention at the request of the federal government.
A third reason is to provide access to services on a fair and equal basis to all who are eligible for them. Many schools, for example, seek to educate all children regardless of where they were born. (In fact, education without regard to place of birth is required under the law.) A school is not required to gather information about where a child was born, and having that information could draw a subpoena to release it to federal immigration agents. To avoid being embroiled in that mess, and to fulfill the responsibility to educate children, many schools have decided to disentangle by not gathering information about place of birth or citizenship.
What did the president just do in his executive order on sanctuary cities, and what’s his argument?
The president’s recent series of immigration executive orders reframe immigration, seeking to move it from being a system that connects families and allows international travel into a new frame as a national security risk. The executive order provisions on sanctuary cities direct federal agencies to withhold federal grant money from “sanctuary jurisdictions” that do not share information that the city or school has collected on immigration status and citizenship.
In addition, the executive order says that the attorney general has broad discretion to label a place as a “sanctuary” if it “hinders the enforcement of federal law,” and to take “appropriate enforcement action” against such jurisdictions. This vague language does not spell out what constitutes “hinder[ing]” federal law and is likely to trigger lawsuits to determine its scope and its constitutionality.
How will the president’s executive orders affect sanctuary cities?
As a practical matter, the president’s executive orders should not affect sanctuary cities’ federal funding because no city refuses to share or maintain collected information about immigration status or citizenship. Nevertheless, the confusion created by the executive orders will take a toll on cities and other actors. President Trump asserted in one executive order that sanctuary jurisdictions are violating federal law. While that assertion is incorrect under a fair reading of federal law, it is disconcerting to think of the awesome powers of the federal government arrayed against cities and schools that have disentangled from federal immigration enforcement to maintain local control or better serve their students and residents.
How are sanctuary cities responding to the executive orders?
Sanctuary cities are responding in a variety of ways to the executive orders. Many—probably most—are quietly going about serving their residents just as they were doing before the president signed these executive orders. Some others have prioritized the avoidance of federal ire and have announced that they will offer any local resources requested by the federal government in carrying out its immigration enforcement responsibilities. Some others have publically announced that they will continue to focus on local needs.
Some people have compared sanctuary cities to northern states that passed personal freedom laws to oppose the Fugitive Slave Act before the Civil War. Does that hold water?
This country has a rich history of resisting unjust laws, and it’s helpful to look to history for strength and perspective. Sanctuary policies as enacted thus far are quite a bit less radical than the personal freedom laws passed to oppose the Fugitive Slave Act. If framed in comparison to the Fugitive Slave Act, current sanctuary policies are the equivalent of local officials in the 1850s declining to join a slave hunter posse in searching for or detaining escaped slaves. Some churches and other houses of worship are discussing providing refuge for immigrants from immigration enforcement agents, and these efforts are more akin to the personal freedom laws passed in the 19th century. But current sanctuary policies merely decline to provide assistance, access or local resources requested by federal agents seeking to deport individuals.
What about sanctuary schools? What’s that about?
Sanctuary schools are campuses and districts that are disentangling themselves from immigration law. Some schools are establishing privacy policies that govern information collection and dissemination, such as banning inquiry into immigration status or country of birth or requiring a court order before sharing confidential records. Other schools are limiting federal immigration authorities’ access to sensitive locations, such as school campuses, by requiring immigration agents to obtain a warrant signed by a judge in order to enter a campus.
For educators who live in sanctuary cities, how can they best support undocumented students and families? Is there specific information they should have?
Educators who live in sanctuary cities can help undocumented children and families by providing practical support, offering moral support and by serving as a bridge between communities. Educators can help answer families’ questions about what is happening or can [help] undocumented families make a safety plan in case a family member is detained or deported. You can invite long-term residents to meet immigrant students or neighbors, or ask friends to help demystify immigrants and welcome the newcomers. You can advocate for your school leaders to develop privacy policies that reduce the chance that your school will help to deport a student or parent. For ideas and resources, see the resources available here, here and here.