NSBA challenges Alabama immigration law

Alabama’s draconian immigration law is using “fear and intimidation to drive undocumented immigrants and their children” from the state, the National School Boards Association, the National Education Association, and the Alabama Education Association argued in an amicus brief filed in the 11th U.S. Circuit Court of Appeals.

“This case is about the power of fear,” the three education groups say in the opening line of their brief in Hispanic Interest Coalition of Alabama v. Bentley.

The brief is one of three filed by NSBA just before Thanksgiving. The other amicus briefs were filed in two cases before the U.S. Supreme Court: Filarsky v. Delia, which concerns the qualified immunity status of a private attorney retained by the government to conduct an internal affairs investigation, and Payne v. Peninsula School District, which concerns whether parents of students with disabilities can file suit before going through a hearing process set up by the Individuals with Disabilities Education Act (IDEA).

The Alabama law, which, among other things, requires school districts to report on the immigration status of new students, has received national publicity over charges that it is being used to harass undocumented immigrants and drive them from the state.  In early October, after federal judge Sharon Lovelace Blackburn upheld most of the law’s provisions, more than 2,000 Hispanic children were absent from school, according to newspaper reports, although 500 of them eventually returned.

“When this bill passes and is signed into law, I think you will see illegals leaving north Alabama and going elsewhere,” said Alabama House Majority Leader Micky Harmon, the law’s chief sponsor, whose statement is quoted in the amicus brief. “This bill is designed to make these people export themselves.”

That statement, and those of other supporters, show that the legal issues in the Alabama case are nearly identical to those from a less-harsh Georgia immigration law that was recently struck down by District Court Judge Thomas W. Thrash Jr., the brief argued. Thrash found that the law’s “apparent legislative intent is to create such a climate of hostility, fear, mistrust, and insecurity that all illegals will leave Georgia.”

In the groundbreaking 1982 decision in Plyler v. Doe the Supreme Court ruled that the state of Texas violated Fourteenth Amendment protections when it sought to bar the children of illegal immigrants from attending public schools.

“The Supreme Court’s 1982 Plyler decision makes it clear that children have a constitutional right to a public education regardless of their immigration status,” said NSBA General Counsel Francisco M. Negrón Jr. “Measures that chill that right are patently unconstitutional, violating the Equal Protection Clause of the Fourteenth Amendment.”

In addition to its constitutional flaws, the law fails as public policy, added NSBA Executive Director Anne L. Bryant.

“The mission of public schools is to educate all students in their communities regardless of their immigration status,” Bryant said.  “Laws aimed at children exercising their right to a public education are bad public policy.”

In the Filarsky brief, which concerns whether a private attorney working for a government agency should be granted qualified immunity, NSBA was joined by the National Association of Counties, the National Conference of State Legislatures, and the International Municipal Lawyers Association.

“A decision that holds private attorneys representing school districts are not entitled to qualified immunity in that representation could be a disincentive for lawyers to continue to offer counsel to school districts across the plethora of legal specialization areas facing schools today,” Negrón said.  “The unintended consequence of such a ruling would be that school district could have difficulty retaining high quality, affordable legal counsel to represent them in their most challenging disputes.”


Lawrence Hardy|November 30th, 2011|Categories: School Law|Tags: , |


  1. […] was not unconstitutional. Such sentiments are a far cry from the prevailing view in the 2011 Alabama House Bill 56, part of which requires school districts to report the number of undocumented children in their […]

  2. […] a friend-of-the-court brief late last year, NSBA, the National Education Association, and the Alabama Education Association said […]

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