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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

_________________________________________________________________ CASE NO. 11-14532-CC

D.C. Docket No. 2:11-cv-2746-SLB _______________________________________________________________

UNITED STATES OF AMERICA, et al. Plaintiffs/Appellants,

vs. STATE OF ALABAMA, et al.

Defendants/Appellees. ________________________________________________________________

CASE NO. 11-14535-CC D.C. Docket No. 5:11-cv-2484-SLB

______________________________________________________________ HISPANIC INTEREST COALITION OF ALABAMA, et al.,

Plaintiffs/Apellants vs.

GOVERNOR OF ALABAMA, et al., Defendants/Apellees

______________________________________________________________ On Appeal From the United States District Court

For the Northern District of Alabama

_____________________________________________________________

BRIEF AMICI CURIAE OF LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), THE HISPANIC ASSOCIATION OF COLLEGES AND UNIVERSITIES (HACU), THE HISPANIC COLLEGE FUND (HCF), NAFSA: ASSOCIATION OF INTERNATIONAL EDUCATORS (NAFSA) AND MULTICULTURAL EDUCATION, TRAINING & ADVOCACY INC. (META,INC.) IN SUPPORT OF PLAINTIFFS APPELANTS ______________________________________________________________

Roger L. Rice Miguel A. Pérez-Vargas Multicultural Education, Training & Advocacy, Inc., META, Inc. 240 A Elm Street, Suite 22 Somerville, MA 02144 Counsel for Amici Curiae Telephone:(617)628-2226 Facsimile: (617)628-0322

United States of America v. State of Alabama, No.: 11-14532-CC; Hispanic Interest Coalition of Alabama v. Governor of Alabama, No.: 11-14535-CC

C- 1 of 17

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Counsel certifies that, pursuant to 11th Cir. R. 26.1-1, the following persons have

an interest in the outcome of this case:

Abate, Michael P., Counsel for Plaintiff/Appellant;

AIDS Action Coalition, Plaintiff/Appellant;

Alabama Appleseed, Plaintiff/Appellant;

Alabama Coalition against Domestic Violence (ACADV), Amicus Curiae;

Alabama Council and Human Relations, Amicus Curiae;

Alabama Education Association (AEA), Amicus Curiae;

Alabama Fair Housing Center et al., Amicus Curiae;

Alabama New South Coalition, Amicus Curiae;

Alabama NOW, Amicus Curiae;

Alabama State Conference of the National Association for the Advancement of Colored People (NAACP), Amicus Curiae; Albin, Ramona C., Counsel for Plaintiff/Appellant;

Alianza Latina en contra de la Agresion Sexual (ALAS), Amicus Curiae;

American Friends Service Committee, Amicus Curiae;


C- 2 of 17

American Immigration Lawyers Association (AILA), Amicus Curiae;

American Unity Legal Defense Fund, Defendant/Appellee;

Argentine Republic, Amicus Curiae;

Arizona Coalition Against Domestic Violence, Amicus Curiae;

Arte Sana, Amicus Curiae;

Artrip, Eric J., Counsel for Plaintiffs/Appellants;

Bentley Robert, Governor of Alabama, Defendant Appellee;

Blacksher, James U., Counsel for Defendant/Appellee;

Boat People SOS, Plaintiff/Appellant;

Break the Chain Campaign, Amicus Curiae;

Brinkmann, Beth S., Counsel for Plaintiff/Appellant;

Broder, Tanya, Counsel for Plaintiffs/Appellants;

Brooke, Samuel, Counsel for Plaintiffs/Appellants;

Brooks, J.R., Counsel for Defendants/Appellees;

Brooks, Taylor P., Counsel for Defendants/Appellees;


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Broussard, Robert L., District Attomey for Madison County, Defendant/Appellee;

Bruner, Ben, Counsel for Plaintiffs/Appellants;

Bui, Thy B., Counsel for Amicus Curiae ACADV, et al.;

California Women's Law Center, Amicus Curiae;

Casa de Esperanza (Minnesota), Amicus Curiae;

Casa de Maryland, Inc., Amicus Curiae;

Ceja Zamora, Maria D., Plaintiff/Appellant;

Central Alabama Fair Housing Center, Amicus Curiae;

Central American Resource Center, Amicus Curiae;

Cheer, Shiu-Ming, Counsel for Plaintiffs/Appellants;

Chicago Alliance Against Sexual Exploitation (CAASE), Amicus Curiae;

Chilakamarri, Varu, Counsel for Plaintiff/Appellant;

Clark, Christopher R., Counsel for Amicus Curiae The United States of Mexico, et al.;

Coalition of Labor Union Women, Amicus Curiae;

Coalition to Abolish Slavery & Trafficking (CAST), Amicus Curiae;

Colorado Coalition Against Domestic Violence, Amicus Curiae;


C- 4 of 17

Connecticut Sexual Assault Crisis Services, Inc., Amicus Curiae;

Counsel of Mexican Federations in North America /Consejo de Federaciones Mexicanas en Norteamericana, Amicus Curiae;

Craven, Larry E., Interim State Superintendent of Education, Defendant-Appellee;

Crook, Jamie L. Crook, Counsel for the Amicus Curiae Central Alabama Fair Housing Center, et al.;

Cummings, Michelle, Plaintiff/Appellant;

Dane, Stephen M., Counsel for the Amicus Curiae Central Alabama Fair Housing Center, et al.;

Davis, James W., Counsel for Defendants/Apellees

Desormeau, Katherine, Counsel for Plaintiffs/Appellants;

Dewey & LeBoeuf LLP, Counsel for Amicus Curiae The United States of Mexico, et al.;

Dominican American National Roundtable, Amicus Curiae;

DreamActivist.org, Plaintiff/Appellant;

Equality Alabama, Amicus Curiae;

Escalona, Prim F., Counsel for Defendants/Appellees;

Fair Housing Center of North Alabama, Amicus Curiae;

Fairbanks, Misty, Counsel for Defendants/Appellees;

Family Values @ Work Consortium, Amicus Curiae;


C- 5 of 17

Federation of Southern Cooperatives/ Land Assistance Fund, Amicus Curiae;

Federative Republic of Brazil, Amicus Curiae;

Fleming, Margaret L., Counsel for Defendants/Appellees;

Freeman, Steven M., Counsel for Amicus Curiae The Anti-Defamation League;

Fuller, Randy, Superintendent of the Shelby County Public School System,

Defendant/Appellee;

Gardner, J. Cecil, Counsel for the Amicus Curiae ABA, et al.;

Gehring Flores, Gaela K., Counsel for Amicus Curiae NAACP, et al.;

Gelernt, Lee, Counsel for Plaintiffs/Appellants;

Georgia Coalition Against Domestic Violence, Amicus Curiae;

Gespass, David, Counsel for Amicus Curiae NAACP, et al.;

Gillespie, Katherine A. Gillespie, Counsel for the Amicus Curiae Central Alabama Fair Housing Center, et al.;

Gomez, Martha L., Counsel for Plaintiffs/Appellants;

Gorniak, Carla, Counsel for Amicus Curiae The United States of Mexico, et al.;

Greater Birmingham Ministries, Plaintiff/Appellant;

Haile, Esayas, Plaintiff/Appellant;


C- 6 of 17

Hall, Christopher P., Counsel for the Amicus Curiae NACDL;

Hawaii State Coalition Against Domestic Violence, Amicus Curiae;

Hill, Frieda, Chancellor of Postsecondary Education, Defendant/Appellee;

Hispanic Association of Colleges & Universities, Amicus Curiae;

Hispanic College Fund, Amicus Curiae;

Hispanic Federation, Amicus Curiae;

Hispanic Interest Coalition of Alabama, Plaintiff/Appellant;

Huntsville International Heip Center, Plaintiff/Appellant;

Immigration Equality, Amicus Curiae;

Interpreters and Translators Association of Alabama, Plaintiff/Appellant;

Iowa Coalition Against Sexual Assault (Iowa CASA), Amicus Curiae;

Jadwat, Omar C., Counsel for Plaintiffs/Appellants;

Jane Doe # 1, Plaintiff/Appellant;





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Jeff Beck, Plaintiff/Appellant;

Jimmerson, Ehm, Plaintiff/Appellant;

Joaquin, Linton, Counsel for Plaintiffs/Appellants;

John Doe # 1, Plaintiff/Appelant;

John Doe # 2, Plaintiff/Appellant;



John Doe # 5, Plaintiff/Appelant;


Karp, Jessica, Counsel for Plaintiffs/Appellants;

Keaney, Melissa S., Counsel for Plaintiffs/Appellants;

Kelly, Nancy, Amicus Curiae;

Kentucky Coalition for Immigrant and Refugee Rights, Amicus Curiae;


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Krishna, Praveen S., Counsel for Plaintiff/Appellant;

Langham, Jefferey E., Superintendent of the Elmore County Public School System,

Defendant/Appellee;

Lapointe, Michelle R., Counsel for Plaintiffs/Appellants;

Lawyers' Committee for Civil Rights Under the Law, Amicus Curiae;

League of United Latin American Citizens (LULAC), Amicus Curiae;

Legal Momentum, Amicus Curiae;

Ling, Sin Yen, Counsel for Plaintiffs/Appellants;

Long, Pam, Plaintiff/Appellant;

Maer, Foster S. Counsel for Plaintiffs/Appellants;

McKinney, Rebekah Keith, Counsel for Plaintiffs/Appellants;

McMahan, Michael P., Counsel for the Amicus Curiae NACDL;

Molina Garcia, Bonard I., Counsel for Amicus Curiae NAACP, et al.;

Mukherjee, Elora, Counsel for Plaintiffs/Appellants;

Multicultural Education, Training & Advocacy, Inc., Amicus Curiae;

Naomi Tsu, Counsel for Plaintiffs/Appellants;


C- 9 of 17

NAFSA: Association of International Educators, Amicus Curiae;

National Asian Pacific American Women's Forum, Amicus Curiae;

National Association for Chicana and Chicano Studies, Amicus Curiae;

National Association of Criminal Defense Lawyers (NACDL), Amicus Curiae;

National Association of Social Workers and the Alabama Chapter of NASW,

Amicus Curiae;

National Coalition Against Domestic Violence, Amicus Curiae;

National Council of Jewish Women, Amicus Curiae;

National Council of La Raza, Amicus Curiae;

National Education Association (NEA), Amicus Curiae

National Employment Law Project, Amicus Curiae;

National Fair Housing Alliance, Inc., Defendant/Appellee;

National Guestworker Alliance, Amicus Curiae;

National Latina Institute for Reproductive Health; National Women's Law Center, Amicus Curiae;

National Lawyers Guild, Amicus Curiae;

Neal, Allison, Counsel for Plaintiffs/Appellants;


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Neiman, Jr., John C., Solicitor General, Counsel for Defendants/Appellees;

Nevada Network Against Domestic Violence, Amicus Curiae;

New Mexico Coalition of Sexual Assault Programs, Inc., Amicus Curiae;

Newman, Chris, Counsel for Plaintiffs/Appellants;

Oakes, Brian, Counsel for the Amicus Curiae ABA, et al.;

O'Brien, Alice, Counsel for the Amicus Curiae AIEA, et al.;

Orrick, William H. III, Counsel for Plaintiff/Appellant;

Oshiro, Erin E., Counsel for Plaintiffs/Appellants;

Park, Jr., John J., Counsel for Plaintiff/Appellant

Parker, Jr., William G., Counsel for Defendants/Appellees;

Payne, Joshua Kerry, Counsel for Defendants/Appellees;

Pedersen, Amy, Counsel for Plaintiffs/Appellants;

Perales, Nina, Counsel for Plaintiffs/Appellants;

Perez-Vargas, Miguel A., Counsel for the Amicus Curiae Hispanic Association of

Colleges and Universities, et al.;

Plurinational State of Bolivia, Amicus Curiae;


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Raksha, Amicus Curiae;

Reeves, C. Lee II, Counsel for Plaintiff/Appellant;

Republic of Chile, Amicus Curiae;

Republic of Colombia, Amicus Curiae;

Republic of Costa Rica, Amicus Curiae;

Republic of Ecuador, Amicus Curiae;

Republic of El Salvador, Amicus Curiae;

Republic of Guatemala, Amicus Curiae;

Republic of Honduras, Amicus Curiae;

Republic of Nicaragua, Amicus Curiae;

Republic of Paraguay, Amicus Curiae;

Republic of Peru, Amicus Curiae;

Republic of Uruguay, Amicus Curiae;

Rice, Roger, Counsel for the Amicus Curiae Hispanic Association of Colleges and Universities, et al.;

Rubio, Freddy, Counsel for Plaintiffs/Appellants;


C- 12 of 17

Samual, Don, Counsel for the Amicus Curiae NACDL;

Schoen, David I., Counsel for the Amicus Curiae The Anti-Defamation League;

Schwartz, Dale M., Counsel for the Amicus Curiae The Anti-Defamation League;

Schwartz, Robert A., Counsel for Amicus Curiae NAACP, et al.;

Schwarz, Ghita, Counsel for Plaintiffs/Appellants;

Segura, Andre, Counsel for Plaintiffs/Appellants;

Sen, Diana S., Counsel for Plaintiffs/Appellants;

Service Employees International Union, Plaintiff/Appellant;

Sheinburg, Steven C., Counsel for the Amicus Curiae The Anti-Defamation League;

Shin, Susan L., Counsel for Amicus Curiae NAACP, et al.;

Shultz, Benjamin M., Counsel for Plaintiff/Appellant;

Sikh American Legal Defense & Education Fund, Amicus Curiae;

Simpson, Michael D., Counsel for the Amicus Curiae ABA, et al.;

Sinclair, Winfield J., Counsel for Defendants/Appellees;

Smith, Deborah S., Counsel for the Amicus Curiae AILA;

Society of American Law Teachers, Amicus Curiae;


C- 13 of 17

Solano, Henry L. Counsel for Amicus Curiae The United States of Mexico, et al.;

South Alabama Center for Fair Housing, Amicus Curiae;

South Asian Americans Leading Together, Amicus Curiae;

Southern Christian Leadership Conference, Amicus Curiae;

Southern Coalition for Social Justice, Amicus Curiae;

Southern Regional Joint Board of Workers United, Plaintiff/Appellant;

Spears, G. Brian, Counsel for Plaintiffs/Appellants;

Spina, Thomas J., Counsel for the Amicus Curiae NACDL;

State of Alabama, Defendant/Appellee;

Stern, Mark B., Counsel for Plaintiff/Appellant;

Steven P. Rice, Counsel for Amicus Curiae ACADV, et al.;

Still, Edward Counsel for Amicus Curiae The United States of Mexico, et al.;

Strange, Luther, Attorney General of the State of Alabama, Defendant/Appellee and Defendants' Counsel;

Sugarman, Kenneth J., Counsel for Plaintiffs/Appellants;

Sweeney, Donald B, Jr., Counsel for Defendants/Appellees;


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Tan, Michael K. T., Counsel for Plaintiffs/Appellants;

Tenny, Daniel, Counsel for Plaintiff/Appellant;

Tesfamariam, Fiseha, Plaintiff/Appellant;

Thau, Christopher Barton, Plaintiff/Appellant;

The Anti-Defamation League, Amicus Curiae;

The Dominican Republic, Amicus Curiae;

The Montgomery Improvement Association, Amicus Curiae;

The National Asian Pacific American Bar Association, Amicus Curiae;

The National Association of Latino Elected and Appointed Officials, Amicus

Curiae;

The National Dominican American Council, Amicus Curiae;

The National Fair Housing Alliance, Amicus Curiae;

The National Immigration Law Project of the National Lawyers Guild, Amicus

Curiae;

The New Orleans Workers' Center for Racial Justice, Amicus Curiae;

The United Mexican States, Amicus Curiae;

The United States Hispanic Leadership Institute, Amicus Curiae;


C- 15 of 17

Thompson, Barbara W., Superintendent of the Montgomery County Public School

System Defendant/Appellee;

Tumlin, Karen C., Counsel for Plaintiffs/Appellants;

Turner, Andrew H., Counsel for Plaintiffs/Appellants;

United Food and Commercial Workers (International), Plaintiff/Appellant;

United Food and Commercial Workers (Local), Plaintiff/Appellant;

United States of America, Plaintiff/Appellant;

University of Cincinnati College of Law Domestic Violence and Civil Protection

Order Clinic, Amicus Curiae;

Upton, Daniel, Plaintiff/Appellant;

Vance, Joyce White, Counsel for Plaintiff/Appellant;

Vermont Network Against Domestic and Sexual Violence, Amicus Curiae;

Victims Rights Law Center, Amicus Curiae;

Viramontes, Victor, Counsel for Plaintiffs/Appellants;

Voces de La Frontera, Amicus Curiae;


C- 16 of 17

Wan-en, Charles D., Superintendent of the DeKalb County Public School System, Defendant/Appellee;

Wang, Cecilia D., Counsel for Plaintiffs/Appellants;

Warkynski, E. Casey, Superintendent of the Huntsville City School System, Defendant/Appellee;

Washington Empowered Against Violence (WEAVE), Amicus Curiae;

Watson, Jr., Herman, Counsel for Plaintiffs/Appellants;

Webster, Matt, Plaintiff/Appellant;

Werner, Daniel, Counsel for Plaintiffs/Appellants;

West Virginia Coalition Against Domestic Violence, Amicus Curiae;

West, Tony, Counsel for Plaintiff/Appellant;

Wilkenfeld, Joshua, Counsel for Plaintiff/Appellant;

Wisconsin Coalition Against Domestic Violence, Amicus Curiae;

Wisconsin Coalition Against Sexual Assault, Amicus Curiae;

Zall, Barnaby W., Counsel for Plaintiff/Appellant;

9 to 5, National Association ofWorking Women, Amicus Curiae.


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Pursuant to Fed. R. App. P. 26. 1, counsel also makes the following disclosures:

1) For non-governmental corporate parties, please list all parent corporations:

None.

2) For non-governmental corporate parties, please list all publicly held companies

that hold 10% or more of the party's stock:

None.

i

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT…………………………………………………..C-1

TABLE OF CONTENTS………………………………………………………….i

INDEX OF CITED AUTHORITIES……………………………………………...ii

INTEREST OF THE AMICI CURIAE …………………………………………....1

ARGUMENT ……………………………………………………………………..7

I. Federal Law Has Spoken Clearly with Regards to Elementary and Secondary Education and Pre-Empts Section 28 ………………………......7

II. Section 28 Violates the Rights of Undocumented Schoolchildren and their U.S. Citizen Siblings under the Equal Protection Clause of the Fourteenth Amendment …………………………………..……………………………15

CONCLUSION ………………………………………………………………......28

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

Exhibit A: U.S. Department of Education, “Dear Colleague” Letter, May 1, 1997

Exhibit B: Declaration of Miguel Perez Vargas

Exhibit C: Declaration of Michael Fix

Exhibit D: Declaration of Dr. Rosa Castro Feinberg

ii

INDEX OF CITED AUTHORITIES

Cases Chamber of Commerce of U.S. v. Whiting, 131 S.Ct. 1968, 1987 (2011) …....................................................................11 Plyler v. Doe, 457 U.S. 202 (1982)....................................................... passim League of United Latin American Citizens v. Wilson, 908 F.Supp. 755, 774 (C.D. Cal.,1995).........................................................10 League of United Latin American Citizens v. Wilson ,

997 F. Supp. 1244, 1255-56 (C.D. Cal.,1997)…...........................................11

Statutes and Legislative Materials 8 U.S.C. §1621(c)(1)(B)…............................................................................10 8 U.S.C. §1643(a)(2) ….........................................................................passim Fed. R. App. P. 29(c)(5)……………………………………………………...7 P.L. 104-193, Aug. 22, 1996, 110 Stat. 2260 ….............................................9 The Gallegly Amendment, H.R. 4134, Sections 601 (a) and 602 (c) …................................................................11,12 Other Authorities Alabama State Department of Education, EL Policy & Procedures Manual http://alex.state.al.us/ell/?q=node/27 and http://alex.state.al.us/ell/node/58 …..............................................................17

iii

Alabama Department of Finance, Education Trust Fund Net Receipts Fiscal Years 2006-2007 Through 2011-2012, p. xii, available at: http://budget.alabama.gov/pdf/fundrec/ ETF_Receipts.pdf…......................................................................................21 Associated Press, Hispanic Students Vanish from Alabama, http:// www. suntimes. com/ news/nation/7974307-418/hispanic-students- vanish-from-alabama-schools.html………………………………………..18 Campbell Robertson, After Ruling, Hispanics Flee an Alabama Town, http://www.nytimes. com/2011/10/04/ us/after-ruling-hispanics-flee- an-alabama-town.html ?pagewanted=all…………………………………..18 David Martin, Hispanic Students Vanish from Alabama Schoos, http:// www.usatoday. com/news/nation/story /2011-09-30 / Alabama -immigration/50619602/1…………………………………………………18 David A. Martin, Twilight Statuses: A Closer Examination of the Unauthorized Population. MPI Policy Brief, June 2005, No. 2 http:// www.migrationpolicy.org/pubs/MPI_PB_6.05.pdf.......................................22 Declaration of Miguel A. Pérez Vargas …...................................................19 Declaration of Michael Fix ….....................................................................21 Declaration of Dr. Rosa Castro Feinberg ……………………………........23 Douglas S. Massey, Five Myths about Immigration: Common Misconceptions Underlying U.S. Border-Enforcement Policy, Immigr. Daily, Dec. 7, 2005 Available at http://www.ilw.com/ articles/2005,1207-massey, cited in Jorge Chapa, A Demographic and Sociological Perspective on Plyler’s Children, 1980-2005, Northwestern Journal of Law and Social Policy (2008)………………………………………23-24

iv

Jaclyn, Zubrzycki, Ala. Immigration Law Puts Squeeze on Schools, http:// www. edweek.org/ ew/articles/2011/10/07/07 immigrants_ep.h31.html…………………………………………………18 James Gimpel and James Edwards, The Congressional Politics of Immigration Reform Boston (1998) ……………………………………………………………..12 Jeffrey Passel, Unauthorized Migrants: Numbers and Characteristics, 18 Pew Hispanic Research Center (June 14, 2005) http://pewhispanic.org/files/reports/46.pdf ..................................................22 Judith Gans, Immigrants in Arizona: Fiscal and Economic Impacts, Udall Center for Studies in Public Policy, University of Arizona (2008) Available at http://udallcenter.arizona.edu/immigration/ publications/impactofimmigrants08.pdf. ………………………………….26 Marc R. Rosenblum, “Moving beyond the policy of no policy: Emigration from Mexico and Central America." 46 Latin American Politics and Society 91, 109 (2004) ………………………………………………..12 Patrik, Jonsson, Is Alabama Immigration Law creating a Humanitarian Crisis, http: //www. csmonitor.com /USA/2011/1006/Is-Alabama- immigration-law-creating-a-humanitarian-crisis………………………….18 Randolph Capps, Everett Henderson, John D. Kasarda, James H. Johnson, Stephen J. Appold, Derrek L. Croney, Donald J. Hernandez and Michael E. Fix, A Profile of Immigrants in Arkansas, The Winthrop Rockefeller Foundation (2007) at 5.

v

Available at http://www.urban.org/publications/411441.html …………26 Randy Capps, Everett Henderson, Jeffrey S. Passel and Michael Fix, Civic Contributions: Taxes Paid by Immigrants in the Washington, D.C. Metropolitan Area. Migration Policy Institute (May, 2006 ) Available at: http://www.urban.org/UploadedPDF/411338_ civic_contributions.pdf. ……………………………………………………26 U.S. Department of Education, Consolidated State Performance Report: Parts I and II, School Year 2009-10, Alabama. Available at http:// www2.ed.gov/admins/lead /account/consolidated/sy09-10part1/al.pdf. ……………………………24-25 U.S. Department of Education, “Dear Colleague” Letter, May 1, 1997 Exhibit A……………………………..…………………………………….13 U.S. Department of Justice and U.S. Department of Education, “Dear Colleague” Letter, May 6, 2011 Available at http://www.justice.gov/crt/ about/edu/documents/plylerletter.pdf ……………………………...13, 14, 17 U.S. Department of Education, Funds for State Formula-Allocated and Selected Student Aid Programs, Alabama . Available at http:// www2.ed.gov/about/overview/ budget/statetables/11stbystate.pdf……………………………………...14, 25 U.S. Department of Education, U.S. Secretary of Education Arne Duncan, Press Conference Call On Bullying and

vi

Harassment Guidance, Tuesday, October 26, 2010 at p. 3 Available at: http://www.sprigeo.com /pdfs/DuncanPressConferenceTranscript.pdf………………………………20 U.S. Department of Education, Summer 2010 ED Facts STATE PROFILE –ALABAMA Available at http://www2.ed.gov/about/inits/ed/ edfacts/state-profiles/alabama.pdf………………………………………….21

1

STATEMENT OF INTEREST OF THE AMICI CURIAE LULAC, the League of United Latin American Citizens, is the largest

and oldest Hispanic civil rights organization in the United States. With over

125,000 members LULAC’s membership extends into every state in the

Union and Puerto Rico with over 900 councils nationwide. LULAC’s

mission is to advance the economic condition, educational attainment,

political influence, health and civil rights of Hispanic Americans. For more

than 82 years, LULAC’s members have sought to ensure the civil rights of

Hispanics throughout the United States, and foster respect for the rule of

law. LULAC believes in the democratic principle of individual freedom and

is obligated to promote, protect and assure the constitutional and statutory

rights of all Hispanics, regardless of immigration status.

Advancing the educational attainment of the Hispanic population has

always been at the core of LULAC’s mission. Over 1.1 million Hispanic

students have benefited from a range of LULAC educational programs

including: youth leadership programs, comprehensive educational programs

that provide assistance to approximately 5% of all Hispanic students

enrolling in college, the LULAC National Scholarship Fund, a young

readers program, middle school students science corps and our parent

involvement initiative.

2

In addition, the LULAC International Embassy has worked in conjunction

with Latin American nations to provide a variety of ongoing educational and

cultural opportunities for native Spanish-speakers living in the United States.

LULAC knows from long experience that the road to equal educational

opportunities for Hispanic children in the face of discrimination often will

mean seeking vindication of constitutional and human rights in the courts. In

1945, a California LULAC Council successfully sued to integrate the

Orange County School System, which had been segregated on the grounds

that Mexican children were “more poorly clothed and mentally inferior to

white children.”

LULAC is deeply concerned and deeply impacted as an organization

by the current anti-Hispanic and anti-immigration backlash of which H.B. 56

is the most recent and pernicious example. This law threatens to deny and

frustrate the education of thousands of Hispanic children in Alabama’s

schools. LULAC believes that the law must be enjoined to prevent that from

happening and wishes to present facts and analysis to this court which it

believes will assist the court in its deliberations.

The Hispanic Association of Colleges and Universities (“HACU”) with

offices in San Antonio, TX, Sacramento, CA and Washington DC was

established in 1986 with a founding membership of 18 institutions and today

3

numbers almost 450 colleges and universities committed to Hispanic higher

education success in the U.S., Puerto Rico, Latin America, Spain and

Portugal. HACU is the only national association that represents Hispanic-

Serving Institutions (HSIs). HACU is committed to assuring higher

education access and success for Hispanic students and its regional office in

Sacramento addresses issues of policy and practice in the western region of

the U.S.

HACU is concerned that HB 56, Arizona's SB 1070, and similar

legislation poses significant barriers to Hispanic and immigrant students to

access and succeed in higher education. These barriers directly impact

HACU’s work in advancing the education of Hispanic students.

HACU has a compelling interest in seeing that HB 56 be

preliminarily enjoined and declared unconstitutional in its entirety.

Founded in 1993, the Hispanic College Fund ("HCF") is a national

non-profit organization based in Washington, D.C., with a mission to

develop the next generation of Hispanic professionals. For 18 years, the

Hispanic College Fund has provided educational, scholarship, and mentoring

programs to students throughout the United States, including Puerto Rico,

establishing a career pipeline of talented and career-driven Hispanics. HCF

accomplish his mission by providing Hispanic high school and college

4

students with the vision, resources, and mentorship needed to become

community leaders and achieve successful careers in a variety of disciplines

including business, science, technology, engineering and math. HCF is

deeply concerned that the operation of H.B. 56, and in particular Section 28,

will deter Hispanic youth from enrolling in or completing their high school

educations, thereby further reducing college-going and college graduation

rates to the detriment of our nation and frustrating the purpose for which

HCF was founded. Thus, HCF has a compelling interest in making sure that

this unconstitutional state law is not allowed to take effect.

NAFSA: Association of International Educators is the world's

largest nonprofit association dedicated to international education and

exchange. NAFSA's nearly 10,000 members are located at more than 3,500

institutions worldwide, in over 150 countries. Members of NAFSA share a

belief that international education advances learning and scholarship, builds

respect among different peoples, and encourages constructive leadership in a

global community.

NAFSA has long been an active participant in efforts to reform U.S.

immigration laws, especially those that impede the movement of people for

educational purposes. NAFSA is deeply concerned that states are creating an

unworkable patchwork of immigration laws that will have a deleterious

5

effect on international education. Of immediate concern is Alabama, where

people are living in fear, afraid to send their children to school or to report

when they are crime victims or witnesses. This climate of fear stands in stark

opposition to the ideals of the United States and the mission of NAFSA.

NAFSA thus joins with those seeking to halt the implementation of HB 56

and declare it unconstitutional.

META is a national public interest nonprofit legal organization which

was formed in 1983 for the purpose of protecting the civil rights of

immigrant and other limited English proficient students and their families.

In its nearly 30 years of advocacy, META’s attorneys have practiced before

state courts and United States District Courts and the Courts of Appeals

sitting in Massachusetts, New York, Florida, Texas, New Mexico, Colorado,

California, Kansas and elsewhere.

At the present time, META represents in excess of one million limited

English proficient students in federal court class action litigation in various

states and school districts. Among those students are some who may be

presumed to be undocumented, some who are not United States citizens but

who are legally resident in the United States and many who are U.S.

citizens. In its work, META has always sought to protect the rights of all of

6

these students to receive a free public education, to learn English, to learn

content subjects and to become productive members of society.

META is deeply concerned that until the courts find H.B. 56

unconstitutional, this “toughest in the nation” law will spawn similar laws in

other states and thereby directly harm thousands of additional children

including those META already represents as class members. In particular,

META is concerned that H.B.56 may have a harmful impact on Latino,

limited English proficient and undocumented students in the neighboring

state of Florida where META represents a statewide class of students, some

of whom may wish to travel to Alabama and whose families might wish to

relocate to Alabama.

In addition, META was recently contacted by representatives of

immigrant families in the Albertville-Boaz area who sought to speak with

one of our advocates about the impact of H.B. 56 on their families. On July

9, a META attorney met with approximately 60 Latino immigrant families at

a church in Albertville at which time the families explained their concerns

that H.B. 56 might result in their children having to withdraw from school or

face harassment at school. The families requested that META help convey

these concerns to the court.

7

The parties have consented to the filing of this brief. No counsel for a

party authored this brief in whole or in part and no other than amici and their

counsel made a monetary contribution to its preparation or submission. See

Fed.R.App.P 29(c)(5).

ARGUMENT

I. Federal Law Has Spoken Clearly with Regards to Elementary and Secondary Education and Pre-Empts Section 28

Under Section 28, every public elementary and secondary school in

Alabama must determine the immigration status of every child who “was

born outside of the jurisdiction of the United States or is the child of an alien

not lawfully present in the United States and qualifies for assignment to an

English as A Second Language class or other remedial program.” Failure of

parents to provide proof of legal status to school officials leads to a

presumption of unlawful presence. The names of students and parents thus

identified may be sent to Federal immigration authorities and, upon a waiver

granted by the state Attorney General, may be publically disclosed. Section

28(e). When Section 28 is read in conjunction with Section 13 (a)(3) of

H.B. 56, Section 28 appears to make it a criminal act for a school bus driver

or other school staff member involved in transporting students to transport

identified undocumented students to school or their parents to school events.

8

The premise for these provisions, which obviously will deter

immigrant students from attending public school, is apparently the

unsupported legislative finding that: “illegal immigration is causing

economic hardship and lawlessness in this state and that illegal immigration

is encouraged when public agencies within this state provide public benefits

without verifying immigration status. Because the costs incurred by school

districts for the public elementary and secondary education of children who

are aliens not lawfully present in the United States can adversely affect the

availability of public education resources to students who are United States

citizens or are aliens lawfully present in the United States” (Section 2).

These provisions squarely conflict with federal immigration policies

as articulated for at least the last 15 years in statute, regulation and policy

guidance.

In 1982, the U.S. Supreme Court considered a Texas law that withheld

state funds from local school districts for the education of undocumented

school children and that authorized local school districts to deny enrollment

in their schools to such children. The case raised issues of both pre-emption

and Equal Protection of the laws. The Court found that the Texas statutes

violated the Equal Protection rights of the schoolchildren but no decision

was reached on the question of federal pre-emption. See Plyler v. Doe, 457

9

U.S. 202, 210 n. 8 (1982). In weighing the constitutionality of the Texas

statute, the Court looked to see whether there was any expression of relevant

federal immigration policy touching on K-12 public education. The Court

could find: “no identifiable congressional policy…no national policy…” that

was “discernible in the present legislative record.” Id. at 225-226.

Concurring, Mr. Justice Powell also noted that there was: “no comparable

federal guidance in the area of education. No federal law invites state

regulation; no federal regulations identify those aliens who have a right to

attend public schools.” Id. at 242.

Fourteen years later Congress established just such a policy by

enacting comprehensive legislation that covered the eligibility of aliens for a

wide range of federal and state benefits. The legislation, codified as the

Personal Responsibility and Work Opportunity Reconciliation Act of 1996

(PRWORA), P.L. 104-193, Aug. 22, 1996, 110 Stat. 2260, included inter

alia, a definition of “State or local public benefit” and statutory provisions

that authorized States and political subdivisions to verify the eligibility of

aliens for such benefits according to the provisions of the new law. The

definition of “State or local public benefit” does not include basic K-12

10

public education. See 8 U.S.C. §1621(c)(1)(B). 1 A separate provision of

the law, 8 U.S.C. §1643(a)(2), did address basic K-12 public education. The

section states that: “Nothing in this chapter may be construed as addressing

alien eligibility for a basic public education as determined by the Supreme

Court of the United States under Plyler v. Doe, 457 U.S. 202(1982)”. Put

simply, Congress acted to limit and/or require verification for a wide range

of State and local public benefits but expressly left untouched basic public

education.

The same conclusion was reached by the court in League of United

Latin American Citizens v. Wilson, 908 F.Supp. 755, 774 (C.D.

Cal.,1995)(“LULAC I”). That case concerned California’s Proposition 187

which, in part, required verification of the immigration status of the parents

of school children. In a first round, LULAC I, the court had found that the

verification provision was “part of an impermissible scheme to regulate

immigration and…therefore preempted under the first DeCanas test.” In

further litigation following the 1996 enactment of PRWORA the court found

1 Defining benefits, in part, to include “any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or other similar benefit…” Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (referred to also as “PRWORA” or “PRA”).

11

that the federal statute: “expressly defers to Plyler v. Doe” citing Section

1643 which “does specifically deal with the subject of basic public

education.” League of United Latin American Citizens v. Wilson, 997 F.

Supp. 1244, 1255-56 (C.D. Cal.,1997)(“LULAC II”). 2

Moreover, had Congress meant to allow limitations or immigration

verification for K-12 basic education it would have done so because just

such a limitation was before the Congress. H.R. 4134, an act “Authorizing

States To Disqualify Certain Aliens Not Lawfully Present in the United

States From Public Education Benefits”, also known as the Gallegly

Amendment (after its principal sponsor, Rep. Elton Gallegly of California)

was introduced in 1996. Section 601(a) of the Gallegly Amendment

included findings similar, indeed nearly identical, to the language of H.B.

56, Section 2 about alien children whose education “depletes States’ limited

2 In its recent decision in Chamber of Commerce of U.S. v. Whiting, 131 S.Ct. 1968,1987 (2011), the Supreme Court found that Arizona was not preempted from acting in the area of employment pursuant to its licensing laws because those laws: “fit(s) within the confines of IRCA’s savings clause” . In the instant situation, Section 28 treads into an area, basic public education for immigrant children that Congress has exempted from requirements that govern public benefit determinations and immigration status verifications.

12

educational resources” and specified procedures for screening such

children.3

The Gallegly Amendment passed the U.S. House of Representatives

but failed in the U.S. Senate and did not become law. Its failure, taken

together with the passage of 8 U.S.C. § 1643(a)(2), defines the “identifiable

congressional policy” and legislative record that was lacking in 1982. There

is now Congressional policy. Immigrant students, including undocumented

immigrant students, are entitled to basic K-12 public education. A state

provision requiring that students be screened and identified on the basis of

immigration status has been pre-empted by congressional action. 4

In a parallel, and additional, Federal policy statement on K-12

education and student immigration status verification a “Dear Colleague”

3 Sections 601 (a) and 602 (c) of H.R. 4134. 4 Commentators have written about the history of the Gallegly Amendment and some have noted a nexus between the ultimate defeat of the Amendment and President Clinton’s concerns of its impact on foreign policy governing relations with Mexico. See, Marc R. Rosenblum, “Moving beyond the policy of no policy: emigration from Mexico and Central America." 46 Latin American Politics and Society 91, 109 (2004). See also, James Gimpel and James Edwards, The Congressional Politics of Immigration Reform. Boston (1998).

13

letter was sent to State Departments of Education on May 1, 1997 from the

U.S. Department of Education. The letter focused on section 625 of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, PL

104-208m (1996) concerning verification of foreign students F-1 status. The

letter indicates that the U.S. Department of Education, Department of State

and the Immigration and Naturalization Service consulted in determining the

attached advice. The letter states: “Moreover, it should be emphasized,

Section 625 does not affect immigrant students who are residing in a school

district in the United States (citing Plyler v. Doe)… Section 625 does not

constitute a basis for requiring students to verify alien or citizenship status.”

(Emphasis in original). (Exhibit A, “Dear Colleague” letter, May 1, 1997).

More recently the U.S. Department of Justice and U.S. Department of

Education issued a Dear Colleague letter (May 6, 2011). The letter

expresses concern over “student enrollment practices that may chill or

discourage the participation, or lead to the exclusion of students based on

their or their parents’ or guardians’ actual or perceived citizenship or

immigration status. These practices contravene Federal law.” Specifically

enumerated as an example of what school districts may not do in reviewing

student residency is the immigration status questioning of the type required

by Section 28. The two federal agencies state: “ While a district may

14

restrict attendance to district residents, inquiring into students’ citizenship or

immigration status or that of their parents or guardians would not be relevant

to establishing residency within the district.” Id. 5 6

The federal government has spoken clearly and repeatedly. The

Supreme Court of the United States in the Plyler decision, the Congress in

Title 8 of the U.S. Code, the federal agencies charged with enforcing the

immigration laws and the civil rights enforcement agencies of the Justice

and Education Departments have made it clear that undocumented school

children have the right to attend elementary and secondary school and to do

so unimpeded by immigration status verifications. Section 28 has been

preempted and is therefore an unconstitutional state law that treads

impermissibly into the authority of the United States.

5 http://www.justice.gov/crt/about/edu/documents/plylerletter.pdf 6 The May 6, 2011 letter was premised in part on the prohibition of national origin discrimination by recipients of Federal financial assistance. In 2010, Alabama received approximately $ 685,341,362 in Federal public elementary and secondary education assistance for its students, including its immigrant students. U.S. Department of Education, Funds for State Formula-Allocated and Selected Student Aid Programs, U.S. Department of Education Funding, Alabama available at www2.ed.gov/about /overview/budget/statetables/11stbystate.pdf.

15

II. Section 28 Violates the Rights of Undocumented Schoolchildren and their U.S. Citizen Siblings Under the Equal Protection Clause of the Fourteenth Amendment

Section 28 is preempted by fifteen years of federal immigration

policies which require granting the injunctive relief sought by the plaintiffs.

Such relief is also required under the Plyler decision itself to prevent

curtailment of the Fourteenth Amendment Equal Protection rights of

schoolchildren in Alabama for this school year.

As described above, Section 28(a)(1) requires every public elementary

and secondary school to inquire into the immigration status of enrolling

children and identify children who were born outside the United States or

are the children of an alien not lawfully present. School officials must also

determine whether enrolling students: “qualify for assignment to an English

as Second Language class or other remedial program.” If parents do not

present immigration status documentation that the schools consider to be

satisfactory, school officials: “shall presume for the purposes of

reporting…that the student is an alien unlawfully present in the United

States.” Section 28(a)(5). The names of students and parents thus identified

may be sent to federal immigration agencies and, upon obtaining a waiver

from the state Attorney General, publically disclosed. Section 28(e). A

companion section of H.B. 56 makes it a crime for a person to transport an

16

alien: “…in reckless disregard of the fact, that the alien has come to, entered,

or remained in the United States in violation of federal law.” Section

13(a)(3). The provision does not exempt school employees who normally

transport school children to and from school and/or their parents to school

functions.

The sole explanation for these provisions are found in two sentences

in Section 2 of H.B. 56. The first sentence seeks directly to control

immigration through requiring verifying of immigration status: “ The State

of Alabama finds that illegal immigration is causing economic hardship and

lawlessness in this state and that illegal immigration is encouraged when

public agencies within this state provide public benefits without verifying

immigration status.” The second sentence seeks to link the immigration

status of some immigrant school children with the theoretical cost impact on

public education of their instruction: “ Because the costs incurred by school

districts for the public elementary and secondary education of children who

are aliens not lawfully present in the United States can adversely affect the

availability of public education resources to students who are United States

citizens or are aliens lawfully present in the United States”

The provisions of Section 28 are intended to and will deter immigrant

parents from registering their children for school. It is not possible to view

17

§28 apart from the Act of which it is a part. The preamble of H.B. 56

provides the foundation of the entire Act, including §28. Given that public

elementary and secondary education undoubtedly provides a public benefit

available to undocumented immigrants, it is disingenuous, at best, to suggest

that §28 should be viewed any way other than targeted on aliens. Indeed,

the determination of immigration status at the schoolhouse door is precisely

the type of practice that the U.S. Departments of Justice and Education have

recently warned against as violative of Plyler, practices that: “may chill or

discourage the participation, or lead to the exclusion, of students based on

their or their parents’ or guardians’ actual or perceived citizenship or

immigration status, “available at http://www.justice.gov/crt/about/edu/

documents/ plylerletter.pdf. Indeed, the website of the Alabama Department

of Education posted the State EL Policy & Procedures Manual, which “is an

outgrowth of the Alabama Department of Education’s voluntary agreement

with the U.S. Department of Education, Office for Civil Rights (Compliance

Review #04-98-5023), for providing services to students who are English

language learners (ELLs)” and then recognized that, Plyler v. Doe bars

“public schools (from) require(ing) students or parents to disclose or

document their immigration status” or “mak(ing) inquiries of students or

parents that may expose their undocumented status.” Id. available at

18

http://alex.state.al.us/ell/?q=node/27 and http://alex.state.al.us/ell/node/58.

(last visited July 21, 2011).

It is obvious that a currently undocumented parent or the parent of a

child currently undocumented would realize that setting foot into a

schoolhouse and approaching the registration desk could well be the first

step, not towards an education and better future for their child, but for

deportation. Section 2, as stated, seeks the end of undocumented

participation in it school system. We have since learned that H.B. 56 in

general and §28 in particular has fed the fear of which we speak and has

gone a long ways to the accomplishment of this end. 7 The State knew that

this would occur as anyone passably familiar with undocumented

immigration, or who could put themselves in the shoes of such an immigrant

could have predicted . It is no accident that the core cases establishing the

7 See Campbell, Robertson, After Ruling, Hispanics Flee an Alabama Town, http://www.nytimes.com/2011/10/04/us/after-ruling-hispanics-flee-an-alabama-town.html?pagewanted=all; David, Martin, Hispanic Students Vanish from Alabama Schoos, http:// www.usatoday. com/news/nation/story /2011-09-30 / alabama-immigration/50619602/1; Jaclyn, Zubrzycki, Ala. Immigration Law Puts Squeeze on Schools, http:// www. edweek.org/ ew/articles/2011/10/07/07 immigrants_ep.h31.html; Associated Press, Hispanic Students Vanish from Alabama, http:// www. suntimes. com/news/nation/7974307-418/hispanic-students-vanish-from-alabama-schools.html; Patrik, Jonsson, Is Alabama immigration Law creating a Humanitarian Crisis, http://www.csmonitor.com/USA/2011/1006/Is-Alabama-immigration-law-creating-a-humanitarian-crisis

19

rights of these children proceded under pseudonyms despite the presumption

against proceeding thusly. Plyler v. Doe and In re Alien Children, 457 U.S.

202, 1102 S.Ct. 2302 (1982) could not have proceded if undocumented

children had to disclose their identities. Nor, does the normal Federal

judicial deference to state legislative findings require the Court to blinker

itself from the unmistakable purposes of H.B. 56’s authors, quite simply to

drive those believed to be unlawful immigrants out of Alabama. (See

Compl. ¶¶ 179-192, Doc. 2484: 37)

The parents of undocumented school children and the undocumented

parents of U.S. citizen school children affected by Section 28 have movingly

described in their declarations the fears they now have about enrolling in

school this fall. 8 As one parent put it: “My 9 year old daughter is

traumatized by what she hears at school...She started coming home from

school and telling me that other children said that her parents will be arrested

by immigration officials or stopped at police checkpoints…I am deeply

8 Complaint, Ex. 25, Jane Doe #1Decl. ¶¶1,8 (Doc. 2484: 37-25); Ex. 26, Jane Doe #2 , Decl. ¶9(Doc. 2484: 37-26); Ex. 27, Jane Doe#3 Decl.¶¶2,8 (Doc. 2484: 37-27); Ex. 28, Jane Doe#4, Decl. ¶¶2,5(Doc. 2484: 37-28); Ex. 29, Jane Doe#5, Decl. ¶6 (Doc. 2484: 37-29); Ex. 32, John Doe#2, Decl. ¶¶2, 5-7(Doc. 2484: 37-32). Exhibit B, Declaration of Miguel Perez Vargas. ¶¶3-4.

20

worried about the toll this is taking on my daughter” 9 Another student, an

11th grader with a 3.6 GPA who is active in ROTC, now fears that his school:

“would know I was undocumented and they would have me marked…they

might try to retaliate against me. I would be in a constant state of worry and

fear.” 10 U.S. Education Secretary Arne Duncan has observed: “Students

simply cannot learn if they feel threatened or harassed or in fear.” 11 The

Secretary’s comment aptly describes the fear of the children described in the

instant case.

Because Sections 28 and Section 13 so obviously deter undocumented

school children and the U.S. citizen children of undocumented parents from

risking school enrollment, these provisions violate the rights of those

children to receive elementary and secondary education as set forth in

Plyler. Of course there will be factual differences that can be drawn

between Texas at the time of the Plyler decision in 1982 and Alabama today. 9 Complaint, Ex. 25, Jane Doe #1, Decl. ¶8. (Doc. 2484: 37-25) 10 Complaint, Ex. 31, John Doe #1 Decl.¶¶3-4,13. (Doc. 2484: 37-31) 11 U.S. Department of Education, U.S. Secretary of Education Arne Duncan, Press Conference Call On Bullying and Harassment Guidance, Tuesday, October 26, 2010 at p. 3 available at: http://www.sprigeo.com /pdfs/Duncan PressConferenceTranscript.pdf.

21

That said, salient essential facts are important to understanding how weak

are the fig leaf “findings” of Section 2.

To the extent that H.B. 56 is motivated by concerns over ESL

instruction to undocumented children, those concerns are unfounded. As an

initial matter, the population of Limited English Proficient (LEP) children in

Alabama is comparatively small. Reports of the United States Department

of Education show that as of 2010, there were approximately 19,500 Limited

English Proficient children in Alabama elementary and secondary schools,

or 2.6% of the total student enrollment of 745,668. 12 Moreover, analysis

of U.S. Census data indicates that a majority of the LEP students in K-12

public schools in Alabama as of 2009 were United States citizens and 83%

of children of immigrants in Alabama who are under the age of 18 are

United States citizens. Declaration of expert Michael Fix (Attached as

Exhibit C). Other researchers have found that nationwide for families in

which the head of household is undocumented, two-thirds of the children are

12 U.S. Department of Education. Summer 2010 ED Facts STATE PROFILE –ALABAMA available at http: //www2.ed.gov/about/inits /ed/edfacts/state-profiles/alabama.pdf.

22

US citizens, one-third are undocumented. 13 The Census analysis is

buttressed by record evidence in this case from parents who have described

the composition of their families with some children who are U.S. citizens

and with brothers and sisters who are currently undocumented. 14 The target

of Section 28 is, therefore, at the most, limited to 1% of the total student

population. They are, in all likelihood, the siblings of U.S. citizen children.

But even that overstates the legislature’s quarry because many

undocumented students and their parents will eventually have their statuses

adjusted. 15

More importantly, these undocumented children are, as found by the

Court in Plyler, “basically indistinguishable” from legally resident alien

13 Jeffrey Passel, Unauthorized Migrants: Numbers and Characteristics, 18 Pew Hispanic Research Center (June 14, 2005) available at http://pewhispanic. org/files/reports/46.pdf. 14 See Complaint Ex. 25, Jane Doe #1 Decl. ¶1 (Doc. 2484: 37-25); Ex. 28, Jane Doe #4 Decl. ¶¶1-2 (Doc. 2484: 37-28); Ex. 32, Jane Doe #2 Decl. ¶2 (Doc. 2484: 37-32). 15 David A. Martin, Twilight Statuses: A Closer Examination of the Unauthorized Population. MPI Policy Brief, June 2005, No. 2. available at http://www.migrationpolicy.org/pubs/MPI_PB_6.05.pdf.

23

children in terms of educational cost and need. Id. at 229. There is no

legislative finding to the contrary and, as made clear from the expert

declaration of Dr. Castro Feinberg (attached as Exhibit D), the Plyler finding

remains accurate. Based on some 40 years of experience with the education

of ELL students in Florida, Dr. Castro Feinberg states that: “At the heart of

any ELL program are trained teachers and staff, appropriate curricular

materials, and well designed assessment and support services.” However,

these needs, and the resources which they require, describe “what is needed

for all ELLs including…those who are United States citizens.” She

concludes: “Educational need and addressing educational need among ELLs

is simply not correlated to immigration status.” (Exhibit D, Decl. of Dr. Rosa

Castro Feinberg at ¶¶9-14).

Moreover, any implication in H.B. 56 that parents brought their

undocumented children to Alabama to avail themselves of ESL instruction

and public education is a myth. Leading scholars of immigration patterns

have found that access to government benefits is not a motive for

undocumented migration and that only 10 percent of Mexican immigrants

say they have ever sent a child to U.S. public schools. 16

16 Douglas S. Massey, Five Myths about Immigration: Common Misconceptions Underlying U.S. Border-Enforcement Policy, Immigr. Daily,

24

Furthermore, Alabama has consistently benefited from federal funding

for ESL programming. In 2010 Alabama received approximately $ 3.8m

from the United States Department of Education through the Title III, No

Child Left Behind grant program, a program designed specifically for

Limited English Proficient students. 17 According to the state’s

Consolidated State Performance Report, SY 2009-2010, the state passed on

federal Title III funds to 52 school districts which enabled the training of

LEP classroom teachers, regular content classroom teachers and other staff.

Nearly all of the teachers receiving federally funded training were regular

classroom teachers. Of LEP children tested, 80.5% were reported as making

progress in learning English and 48% had attained proficiency in English.

Alabama estimated that it would need only 267 more certified/licensed

teachers for its ELL students in the next 5 years. 18 Title III funds were

Dec. 7, 2005, available at http://www.ilw.com/articles/2005,1207-massey, cited in Jorge Chapa, A Demographic and Sociological Perspective on Plyler’s Children, 1980-2005, Northwestern Journal of Law and Social Policy (2008). 17 U.S. Department of Education. Funds for State Formula-Allocated and Selected Student Aid Programs, Alabama. available at http://www2.ed. gov/about / overview/budget /statetables/11stbystate.pdf. 18 U.S. Department of Education, Consolidated State Performance

25

only a part of the nearly $ 700m in federal funding for elementary and

secondary education programs in Alabama, programs in which LEP students

participate. 19

Furthermore, immigrant families themselves support public education

in Alabama. The largest sources of the state’s Education Trust Fund are the

income tax, sales tax and utility tax which account for in excess of 90% of

its revenues. 20 Of course, immigrants, including undocumented immigrants

pay these same taxes as do other Alabamans. The Supreme Court found in

Plyler that undocumented aliens: “underutilize public services, while

contributing their labor to the local economy and tax money to the state

fisc.” Id. at 228. At the state level, a recent detailed analysis of the impact of

immigrants in Arkansas likewise found that the costs of services for

immigrants, taking into account the costs of education, health services and

Report: Parts I and II, School Year 2009-10, Alabama. available at http://www2.ed.gov/admins/lead/account/consolidated/sy09-10part1/al.pdf. 19 See U.S. Department of Education federal funds for Alabama, data at footnote 6. 20 Alabama Department of Finance, Education Trust Fund Net Receipts Fiscal Years 2006-2007 Through 2011-2012, p. xii, available at: http://bud get. alabama.gov/pdf/fundrec/ETF_Receipts.pdf

26

corrections: “were more than balanced by direct and indirect tax

contributions” resulting in a net surplus. 21 A similar analysis in Arizona,

taking into account the fiscal costs attributable to immigrants, both

naturalized citizens and non-citizens, and their contribution as tax payers and

consumers, came to the same conclusion, finding a net fiscal contribution

generated by immigrants in that state. 22 The fact that Alabama chooses to

remove undocumented children from its schools by the indirect means of

asking about status (and collecting and reporting it to the state) rather than

directly barring the door is of no consequence. One cannot deny a

21 Randolph Capps, Everett Henderson, John D. Kasarda, James H. Johnson, Stephen J. Appold, Derrek L. Croney, Donald J. Hernandez and Michael E. Fix, A Profile of Immigrants in Arkansas, The Winthrop Rockefeller Foundation (2007) at 5. Available at http:// www.urban.org/ publications /411441.html. 22 Judith Gans, Immigrants in Arizona: Fiscal and Economic Impacts, Udall Center for Studies in Public Policy, University of Arizona (2008). Available at http :// udallcenter. arizona. edu/immigration /publications/ impactofimmigrants08.pdf. Yet another recent study of immigrants in the Washington, D.C. Metropolitan area found that all immigrants pay substantial shares of their incomes in taxes and in most cases those shares are close to those paid by natives. Randy Capps, Everett Henderson, Jeffrey S. Passel and Michael Fix, Civic Contributions: Taxes Paid by Immigrants in the Washington, D.C. Metropolitan Area. Migration Policy Institute (May, 2006) available at: http://www.urban.org/ UploadedPDF /411338_ civic_contributions.pdf.

27

constitutional right by indirection any more than by direct action. Whether

one characterizes the thinly disguised barrier of data collection as a “burden”

on the right of undocumented children, or as an effort to:”chill” their right to

education, should be of no moment. The placement of the barrier, certainly

known in advance as a barrier, and certainly having that effect on the right

declared in Plyler must be stricken.

In 1982 the United States Supreme Court could not find a sufficient

rational basis for a state to effectively exclude undocumented immigrant

school children from K-12 education particularly given the catastrophic

consequences of such exclusions to the immigrant children and our society

as a whole. The Court held that the Fourteenth Amendment’s requirement

of Equal Protection of the Laws would be violated. The Plyler decision

governs current consideration of Section 28. The intrusive sorting of

students according to their assumed immigration status will effectively

intimidate and exclude not only undocumented children, protected by the

Plyler decision, but their own U.S. citizen and legally resident siblings who

are the children of currently undocumented parents. No sufficient reason

exists for that to happen this school year in Alabama.

28

CONCLUSION For the foregoing reasons, Amici Curiae respectfully requests that

this Court preliminarily enjoin HB 56, and declare it unconstitutional.

Respectfully submitted this the 16th day of November, 2011 by counsel for

Amici Curiae.

/s/ Roger L. Rice __________________________ ROGER L. RICE /s/ Miguel A. Pérez Vargas ____________________ MIGUEL A. PEREZ VARGAS MULTICULTURAL EDUCATION, TRAINING & ADVOCACY (META) Inc. 240 A Elm Street, Suite 22 Somerville, MA 02144 Telephone: (617) 628-2226 Facsimile: (617) 628-0322 [email protected] [email protected] Counsel for Amici Curiae

CERTIFICATE OF COMPLIANCE

WITH RULE 32(a)

I hereby certify that the attached Amicus Curiae brief complies with the type-volume limitations of Fed.R.App.P. 32 (a)(7)(B), because it contains 5,662 words, excluding the parts of the brief exempted by Fed.R.App.P. 32 (a)(7)(B)(iii).

This Brief also complies with the typeface requirements of Fed.R.App.P. 32(a)(5) and the type style requirements of Fed.R.App.P. 32(a)(6), because it has been prepared in a proportionally spaced typeface using Word version 2007 in Times New Roman 14-point font.

/s/ Roger L. Rice

__________________ Roger L. Rice

CERTIFICATE OF SERVICE

I, Roger L. Rice, hereby certify that on this 16th day of November 2011, I filed the foregoing Brief Amici Curiae Of League Of United Latin American Citizens (LULAC), The Hispanic Association Of Colleges And Universities (HACU), The Hispanic College Fund (HCF), NAFSA: Association Of International Educators (Nafsa) And Multicultural Education, Training & Advocacy Inc. (META,Inc.) In Support Of Plaintiffs Appellants, with this Court by causing the original and six paper copies to be delivered by FedEx next business day delivery. I further certify that I caused this Brief to be served for each party on the following counsel by electronic mail, and by hard copy via U.S. First Class Mail:

Luther Strange Attorney General Office of the Alabama Attorney General 501 Washington Avenue Montgomery, Alabama 36130-0152 [email protected]; [email protected] Michael P.Abate Daniel Tenny United States of America Civil Rights Division, Room 7215 Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 [email protected] [email protected] Mary Bower Samuel Brooke Southern Poverty Law Center 400 Washington Ave. Montgomery Alabama 36104 [email protected]; /s/ Roger L. Rice _________________________________

Roger L. Rice

J.R. Brooks Taylor P. Brooks Lanier Ford Shaver & Payne, PC 2101 Clinton Ave. W STE 102 P.O. Box 2087 Huntsville, AL 35804-2087 [email protected]; [email protected]

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