Yesterday in Alabama, a federal judge refused to enjoin certain provisions of Alabama’s new restrictionist immigration law, while enjoining other sections of the law.
Among the sections that the judge refused to enjoin was a requirement that school officials verify the immigration status of students and parents. Although there are many troubling provisions that will have a serious negative impact for Alabama, and for immigrant residents there, this provision is the most troubling of all. Even more troubling is that it may be allowed to stand by the appeals courts.
The Supreme Court has continuously upheld that states may not prevent undocumented children from attending schools. However, they have at the same time repeatedly stated that education is not a fundamental right. This means that it receives fewer protections than rights that are explicitly provided for in the Constitution such as Freedom of Speech, religion, etc. Commentators have rightly stated that this ruling will have a “chilling effect” on undocumented immigrants sending their children to Alabama schools. It remains an open question, however whether the appeals courts will apply the “chilling effect” standard, until now reserved for fundamental rights, to the case of education.
While disheartening, it’s important to note that this ruling simply pertains to a preliminary injunction against enforcement and does not decide that these provisions are constitutional, but merely that they can remain in force while the case is pending.