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 (801)

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 14 th 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 14 th 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

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 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 R 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 R 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 –E-verify –Social Security Number Verification Service –Public employers must verify the status of a new employee

Employee Identification Cards Utah Code Ann. § 63G Documents or cards that “identify the bearer as an administrator, faculty member, student, or employee.”

Employee ID Cards Utah Code Ann. § 63G 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. § : “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 (801)