Mainstreaming Illegal Immigration, Gutting the Rule of Law, and Racializing Everything

by Peter Kirsanow & Carissa Mulder

As was extensively discussed at this week’s Federalist Society Executive Branch Review conference, the Obama administration increasingly abuses executive power to achieve its policy preferences. Illegal immigration is one of its favorite areas in which to flout the rule of law, and issuing policy guidances from executive agencies is a favorite way of aggrandizing authority. And disparate-impact doctrine, which holds that a racially neutral policy or practice is presumptively discriminatory if it has a disparate impact on racial or ethnic groups, is the administration’s preferred method for engaging in unbridled social engineering. This week the administration, in issuing a “Dear Colleague” guidance regarding acceptable forms of student identification for illegal immigrants, managed to combine its loathing for immigration law with its love of policy guidances and disparate-impact theory — a coup indeed.

By way of background, “Dear Colleague” letters and similar policy guidances are a way that agencies can force people to conform to the agency’s policy preferences without engaging in the formal rule-making process. In the formal rule-making process, an agency must, inter alia, go through a notice-and-comment period in which the public has an opportunity to comment on proposed rules and the agency must take those comments into account when issuing the final rule. The process provides some measure of transparency and accountability. In contrast, “guidances” are supposed to be non-binding explanations of how the agency interprets and enforces the law. As is the case with this “Dear Colleague” letter, however, agencies increasingly use guidances to announce new, more expansive requirements for regulated parties. Technically, the guidance is non-binding and non-compulsory, but if you run afoul of the guidance, the agency in question — in this instance DOJ and DOE, in other instances the EEOC — will come after you and subject you to a financially ruinous investigation and litigation. Unsurprisingly, even dim administrators get the message: Adhere to this guidance or else.

After the Supreme Court’s 1982 decision in Plyler v. Doe, states must provide a free public education to children in the country illegally. No state is denying illegal-immigrant children the right to enroll in public schools. In the wake of the Eleventh Circuit’s decision striking down an Alabama provision requiring schools to check the immigration status of school children (although the provision did not make the children’s education contingent on their immigration status), no state checks the immigration status of school children. So what is the purpose of this “Dear Colleague” letter?

This is where disparate impact and the administration’s hostility to immigration law come in. The “Dear Colleague” letter says that schools should not require certain commonly accepted forms of identification (such as a driver’s license) in order to establish that a child resides in the district, because illegal immigrants are less likely to have those forms of identification.

Requiring certain forms of identification is a racially neutral policy. Requiring that the school obtain the child’s Social Security number is a racially neutral policy. But, say the Department of Education and Department of Justice, illegal immigrants are less likely to have these forms of identification, and so requiring them violates Titles IV and VI of the Civil Rights Act. (It’s also questionable  whether disparate impact can lawfully be used in a Title IV or Title VI context).

Even if someone somewhere was being asked about their immigration status, they cannot be denied a free public education. Nowhere in these documents do DOE and DOJ allege that school districts are denying  anyone a free public education on the basis of their immigration status. Rather, they claim only that being asked this question and requiring this documentation has a “chilling effect,” saying (in the FAQs):

States and districts should also assess their current policies to determine whether they are doing anything that may have the effect, albeit unintended, of discouraging the enrollment of undocumented children, such as asking for immigration papers or social security numbers, or requiring a driver’s license or state-issued identification from a parent. Such policies and practices, once identified, should be changed to eliminate any possible chilling effect on enrollment.

This is simply part of the administration’s ongoing effort to gut immigration law and normalize illegal immigration. The administration’s actions, taken as a whole, essentially erase any distinction between illegal immigrants and lawful immigrants and citizens. In this instance, no one is being denied an education. Almost all of these requirements are implemented simply because it’s the easiest way to determine whether someone actually lives in the district and aren’t borrowing a water bill from a relative or convincing one’s boss to write a letter on company letterhead.