Fourteenth Amendment Bars Inquiry Into Students' Citizenship Status.

No. 11-14535, 11-14675, 2012 U.S. App. Lexis 17544 (Aug. 20, 2012)

"Eleventh Circuit Strikes Down Law Requiring Alabama School Districts to Collect Data on Citizenship and Immigration Status of Students"

By Richard Fossey University of Louisiana at Lafayette, LA


Nathan Roberts

University of Louisiana at Lafayette, LA

On August 20, 2012, a three-judge panel of the Eleventh Circuit Court of Appeals struck down several provisions of the Alabama Taxpayer and Citizen Protection Act (H.B. 56), including Section 28, a provision requiring Alabama school districts to collect data on the citizenship and immigration status of students in the Alabama public schools. Hispanic Interest Coalition of Alabama (HICA) v. Alabama.On the same day it issued its opinion in the HICA case, the court also struck down other portions of the Alabama law in the companion case of United States v. Alabama, No. 11-14532, 11-14674 (Aug. 20, 2012). This commentary is limited to a discussion of the Eleventh Circuit’s HICA opinion, in which the court ruled that the law’s school-district reporting mandate violates the Equal Protection Clause of the Fourteenth Amendment.

Section 28 of the Alabama Taxpayer and Citizenship Protection Act

On June 9, 2011, Alabama Governor Robert Bentley signed House Bill 56, titled the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. The law’s stated purpose was “to discourage illegal immigration within the state and maximize enforcement of federal laws through cooperation with federal authorities.” United States v. Alabama, slip op. at 2. Section 28 of the law provided a process for Alabama school districts to collect data on the immigration status of their students. As summarized by the Eleventh Circuit in the HICA opinion, Section 28 requires school officials to examine every enrolling child’s birth certificate to determine whether the student was born outside the United States or is the child of an undocumented immigrant. If no birth certificate is available or if it indicates that the student was born outside the United States, then the student’s parent or guardian must notify the school of the “actual citizenship or immigration status of the student under federal law.”

This notification must include “(a) official citizenship or immigration documentation and (b) an attestation under penalty of perjury that the document identifies the child.” If the parent cannot provide the statutory notification, “then the student is presumed to be “an alien unlawfully present in the United States.” HICA v. Alabama, at *13. HICA and several other non-governmental plaintiffs sued, seeking to enjoin the application of Section 28 and several other provisions of S.B. 56, but a federal trial judge ruled that the plaintiffs did not have standing to challenge the law. Id., at *14. The plaintiffs then appealed to the Eleventh Circuit.

Eleventh Circuit Concludes That At Least One HICA Plaintiff Has Standing

In its August 20 ruling in the HICA case, the Eleventh Circuit reversed the trial court on the standing issue, finding that at least one of the plaintiffs had standing to bring the suit and that the plaintiffs were likely to succeed on their claim that Section 28 violates the Equal Protection Clause. The Eleventh Circuit remanded the case to the trial court for issuance of a preliminary injunction against enacting Section 28. The Merits: Eleventh Circuit Concludes Section 28 Violates the Equal Protection Clause Turning to the merits of the HICA plaintiffs’ claim, the Eleventh Circuit concluded that Section 28 interfered with the exercise of a protected constitutional right enjoyed by undocumented immigrant schoolchildren and was therefore subject to heightened scrutiny under the Equal Protection Clause.

For Section 28 to be sustained, the Eleventh Circuit determined, Alabama would be required to show that it had a substantial governmental interest in enforcing this provision. The State of Alabama argued unsuccessfully that Section 28 was only a mechanism to collect data and did not impair the rights of undocumented immigrant school children. But the Eleventh Circuit was not persuaded. “[S]ection 28 targets the population of undocumented school children in Alabama,” the court wrote, because it forces the parents of these children to either admit their unlawful presence or “concede it through silence.” Id., at *30. Under either scenario, the Eleventh Circuit, stated, “the relevant state database will identify the student as an unlawfully present alien, even though that inidual may be a “child enjoying an inchoate federal permission to remain. Id., *30-31, citing Plyer v. Doe, 457 U.S. 202, 226 (1982).

Having concluded that Section 28 infringed on the constitutional rights of undocumented immigrant children, the Eleventh Circuit went on to examine whether the State of Alabama had a “substantial” governmental interest that would justify the infringement. The court concluded that it did not. Alabama’s made several arguments to support its position that it had a strong governmental interest in collecting information about school populations, but the Eleventh Circuit was unimpressed. “[W]e do not find these justifications, which fit into the general category of ‘because we want to know,’ substantial enough to justify the significant interference with the children’s right to education under Plyer.” Id., at *37.


The Eleventh Circuit’s decision in HICA v. Alabama is not surprising. The court easily concluded that Alabama’s law to collect date on undocumented immigrant children to be very similar to the Texas law that the Supreme Court struck down in Plyer v. Doe, 457 U.S. 202 (1982). In Plyer, the Texas legislature had cut off state funding for the children of undocumented immigrants and authorized school districts to deny these children access to the Texas public schools. The Supreme Court invalidated the Texas law, finding that it infringed upon these excluded children’s constitutional rights under the Fourteenth Amendment and that the State of Texas had no substantial governmental interest that would justify this infringement. Likewise, the Eleventh Circuit found that the Alabama law, forcing parents to disclose their children’s immigration status and thereby risk deportation, burdened undocumented immigrant children’s Equal Protection rights; and the State of Alabama had no substantial governmental interest that would validate its action.

When Plyer v. Doe was decided 25 years ago, only a few states were dealing with substantial numbers of undocumented immigrant children in the public schools—primarily Texas and California. Since that time, the nation’s undocumented immigrant population has become more widely dispersed, and thus the Eleventh Circuit’s opinion in in HUAC v. Alabama is important for public educators all over the country. Based on the Eleventh Circuit’s decision, we now know that school officials may not collect data on the immigration status of children in the public schools, at least when such data can be used for the purpose of deportation.