A r c h i v e d  I n f o r m a t i o n

April 15, 1996

Honorable Robert Dole
Majority Leader
United States Senate
Washington, DC 20510

Dear Senator Dole:

As the Senate prepares to debate S. 1664, the "Immigration Control and Financial Responsibility Act of 1996," we would like to express our strong opposition to any amendment that would affirmatively authorize States either to exclude from the public schools undocumented children, or to admit such students on a tuition basis--which in many cases would be the functional equivalent of exclusion. If S. 1664 were to reach the President's desk containing such a provision, we would recommend that he veto the bill.

The plain purpose of such an amendment is to attempt to circumvent the decision of the Supreme Court in Plyler v. Doe, 457 U.S. 202 (1982), which holds that States may not, consistent with the Equal Protection Clause of the Fourteenth Amendment, withhold from undocumented children the same free public education they provide to other children residing in the State. The public schools of this country are a vitally important part of the foundation of our diverse and inclusive democracy and strong national economy. We have the following objections to requiring or authorizing States to exclude children from our public schools:

        (1) Denying an education to any child is costly, to the child and to our country. Uneducated children are vastly more likely to wind up on the streets, engaging in unlawful behavior and otherwise placing burdens on their communities. President Clinton has stated that children denied education will "be on the street and then the increased risks of crime and other antisocial behavior will go up." This view is widely shared throughout the law enforcement community:

Robert T. Scully, Executive Director of the National Association of Police Organizations, Inc., recently wrote "[l]aw enforcement's position on the Gallegly amendment is based on our profession, protecting the peace of America--a job that would become much more difficult and dangerous if thousands of children are put on the nation's streets to grow into criminals or fall as victims. Overburdened local law enforcement agencies are ill-equipped to handle the certain resulting flood of juvenile crime and violence."

Gilbert C. Gallegos, National President of the Fraternal Order of Police, recently wrote that "[p]utting hundreds of thousands of additional children on some of the toughest streets in our country trans-lates into a windfall of potential new victims for the predators who work those streets. The cost of educa-tion pales by comparison to the cost of public safety in the neighborhoods where these kids are forced to live."

Matt L. Rodriguez, Superintendent of Police for the City of Chicago, recently wrote "[f]orcing young people out of school and onto the streets would have disastrous long-term effects on public safety as well. Every study that has ever been done on the subject has found a close correlation between the absence of education and increased criminality. Our communities are made safer when our young people--in particular, young people from families that are already at risk--are given the opportunity to stay in school and to learn."

Arthur J. Reddy, International Secretary-Treasurer and Legislative Liaison for the International Union of Police Associations AFL-CIO, recently wrote "[h]ow can anyone advocate throwing thousands of children onto the streets without supervision where they will become both victims and criminals. Local law enforcement officers, our members, will be overwhelmed at a time we can ill afford the extra pressure."

        (2) It is fundamentally unfair, and unworthy of us as a great Nation, to penalize children for the conduct of their parents, conduct those children are powerless to control. As the Supreme Court said in Plyler, "legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice," and "it is...difficult to conceive of a rational justification for penalizing these children for their presence within the United States." Plyler, at 220. It should be remembered, as well, that the punishment of undocumented children that the amendment would authorize would, in many families, be visited arbitrarily among siblings, because under the Fourteenth Amendment all children who are born in the United States are United States citizens.

        (3) Not only is it wrong to penalize children for their parents' unlawful entry by denying them a basic education, it is ineffective. Education services are not the incentive to illegal immigration that job opportunities are, and, in any event, many of the children who would be affected by the amendment are here now, and are likely to remain here. Moreover, even assuming that exclusion from the public schools would have a deterrent effect on illegal immigration, that effect would be undermined by the "crazy quilt" pattern of implementation that would result from State choice in the matter. Indeed, if a deterrent effect is assumed, such an amendment would presumably channel illegal immigration to those States that decline the invitation to turn their backs on our national traditions.

        (4) Schools--which is where, inevitably, such an amendment would be implemented--are ill-suited by their nature to make determinations about the immigration status of their students. Imagine the burden and cost of training teachers and school administrators about the procedures of the Immigration and Naturalization Service (INS) and related documentary requirements; imagine further the burden and cost to parents (presumably, all parents in order to avoid charges of discriminatory implementation by school systems) of implementing such requirements. Certainly, implementation efforts by schools are likely to ensnare them in costly litigation. The INS Commissioner has also written to Congress describing the burden associated with this type of amendment, including its likely effect of diverting INS resources away from more pressing priorities.

        (5) Forcing schools to act as extension agents of our immigration authorities would likely intimidate and estrange not only the students who are subject to exclusion and their families, but also students and families--of a variety of ethnicities--who are not subject to exclusion, but who are either uncertain of their rights or fear, rightly or wrongly, stigmatization. We need to do all we can to increase family involvement in education and reduce the drop-out rate, not undercut those efforts through divisive policies such as this.

The fundamental issue raised by such an amendment is not whether the United States needs to do a better job of protecting the integrity of its borders. Every responsible person agrees on this imperative, and this Administration is taking strong steps to fulfill this need. The fundamental issue is whether we should harm the undocumented children who live here--and ourselves and our values--for the transgressions of their parents. In this connection, we would remind you that less than two years ago, the Congress declared it to be the policy of the United States "that a high-quality education for all individuals and a fair and equitable opportunity to obtain that education are a societal good, are a moral imperative, and improve the life of every individual, because the quality of our individual lives ultimately depends on the quality of the lives of others." Section 1001(a)(1) of the Elementary and Secondary Education Act of 1965. This policy reflects both the practical wisdom of our national experience and "the better angels of our nature" that President Lincoln invoked.

Some will argue, no doubt, that if excluding undocumented children from the public schools is such a bad idea, there is little harm in authorizing the States to do so, because few States would do it. We strongly disagree with this reasoning. By this logic, the more unwise the proposal, the more willing we should be to authorize the States to implement it. The issues here are plainly not about federalism or the wisdom of the States; the issues here are about our historical belief in the power of our public schools to promote opportunity, understanding, cooperation, and economic progress for us all.

Others will argue that the obligation of the States under the Equal Protection Clause to avoid discrimination against these children should be seen as an unfunded mandate. The short answer to this rhetorical device is that under the terms of the recently enacted Unfunded Mandates Reform Act of 1995, P.L. 104-4, the Constitutional obligations of the States plainly are not unfunded mandates. Nor do we believe that the States' basic obligations under the Constitution--such as the right of all accused persons to a jury trial--should ever be considered as such.

Any amendment that would have the effect of denying or restricting public education benefits to undocumented children would have grave implications for public safety. It would not only harm innocent children, it would continue to harm them for the remainder of their lives. It would not deter illegal immigration. It would have our public schools screening children for their immigration status, an expensive and burdensome task for which they are not suited or prepared. For all these reasons, we urge you to oppose any such amendment.

The Office of Management and Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program and that enactment of S. 1664 with a provision that would deny or limit public elementary or secondary education benefits to undocumented children would not be in accord with the program of the President.

Sincerely,

Janet Reno Attorney General

Richard W. Riley Secretary of Education

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