Illegal Immigration and the
Public Schools
The Basic Legal Framework and Potential
Issues Arising from Increased Enforcement
Patrick L. Tanner, Esq.
Burbidge & White
15 West South Temple, Suite 950
Salt Lake City, Utah 84101
(801) 359-7000
• Minor Students
• Adult Students
• Employees
• Pending Legislation
Minor Students
• Illegal children
• Legal children of illegal parents
Illegal Children
Plyer v. Doe, 457 U.S. 202 (1982)
Plyler v. Doe
14th Amendment
“No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal
protection of the laws.”
Plyler v. Doe
•
•
•
•
Illegal aliens are NOT a suspect class;
Education is NOT a fundamental right;
Illegal children are not culpable;
Education IS tremendously important.
Is Education a Fundamental Right
in Utah?
Utah Constitution, Article X, Section 1
“The Legislature shall provide for the
establishment and maintenance of the state’s
education systems including: (a) a public
education system, which shall be open to all
children of the state; and (b) a higher
education system. Both systems shall be free
from sectarian control.”
Impact of Plyer v. Doe
• States (and school districts) cannot exclude
children based on illegal status
• School districts cannot require information
disclosing immigration status (Social Security
number)
• Reflected in various governmental programs and
requirements
• Residency does not equal legal immigration
status
Impact of Plyer v. Doe
League of Latin American Students v. Wilson,
908 F. Supp. 755 (C.D. Cal. 1995)
League of Latin American Students v. Wilson
• Voter-initiated statute
• Prohibited schools from enrolling illegal
immigrant children
• Required determination of immigration status
• Required reporting to immigration enforcement
League of Latin American Students v. Wilson
• Statute was invalidated under the authority of
Plyler v. Doe and the Federal Supremacy Clause.
Legal Children of Illegal Parents
14th Amendment
“All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and the State wherein they reside. ….”
Practical Considerations
for Children of Illegal Parents
• Eligibility requirements
• Custody of children when parents are removed
Adult Students
Adult Education
Adult Education
• Can adult illegal immigrants receive adult
education services?
• Is adult education a “public benefit?”
8 U.S.C. § 1621
Prohibits providing state or local “public benefits”
to illegal aliens
8 U.S.C. § 1621
• “Public benefits” includes:
– “any retirement, welfare, health, disability, public or
assisted housing, post secondary education, food
assistance, unemployment benefit, or any other
similar benefit …”
Utah Code Ann. § 63G-11-104
• Incorporates the federal definitions of federal
and state and local benefits
• Requires verification of lawful presence upon
application for such benefits
Elementary and secondary education do not
appear to be “public benefits” within this
definition.
Rule R277-733-1 Definitions
(For Adult Education Programs)
“‘Eligible adult education student’ means an
individual who provides documentation that his
primary and permanent residency is in Utah”
and falls within one of four categories.
Rule R277-733-6
Adult Education Program Student
Eligibility
Section A(3) allows for establishing residency with
bills and similar documents in addition to use of
a driver’s license or similar documents.
Employees
• Employment status verification
• Employee identification cards
Employment Status Verification
• Utah Code Ann. § 63G-11-103
– E-verify
– Social Security Number Verification Service
– Public employers must verify the status of a new
employee
Employee Identification Cards
Utah Code Ann. § 63G-11-102
Documents or cards that “identify the bearer as an
administrator, faculty member, student, or
employee.”
Employee ID Cards
Utah Code Ann. § 63G-11-102
• ID may only be issued to persons with legal
status
• Exception: ID which conspicuously states that it
is only valid for the school campus or facility
Pending Legislation
• Illegal Immigration Enforcement Act
– Representative Stephen Sandstrom
Illegal Immigration Enforcement Act
• Law enforcement verification of immigration
status
• May not restrict ability to assist immigration
enforcement
• Verification for public benefits application
• Enforcement actions
Illegal Immigration Enforcement Act
Implementation to be consistent with federal
law and civil rights.
§ 76-9-1011: “All state and local agencies
shall implement this section in a manner
that is consistent with federal laws that
regulate immigration, protect civil rights of
all persons, and establish privileges and
immunities of United States citizens.”
Illegal Immigration Enforcement Act
Law enforcement verification of immigration
status
• Definition of law enforcement officer includes
school district police officers
• Immigration status to be determined in
connection with enforcing laws or ordinances
Illegal Immigration Enforcement Act
Citizen Actions
• Failure to verify eligibility for benefits
• Limiting or restricting enforcement of federal
immigration laws
• Civil penalty provisions
Illegal Immigration and the Public
Schools
The Basic Legal Framework and Potential
Issues Arising from Increased Enforcement
Patrick L. Tanner, Esq.
Burbidge & White
15 West South Temple, Suite 950
Salt Lake City, Utah 84101
(801) 359-7000