There is a growing controversy in Illinois where School District 113 has blocked the Township High School ‘s Girls Varsity Basketball Team from traveling to Arizona in December due to the passage of that state’s controversial immigration law. I was asked to consider the argument of the District that it was compelled to bar such travel as a constitutional matter. While I respect (and share) the concerns of the Board over this law, I do not believe the trip is barred as a matter of constitutional law. Given the hard work of these girls in achieving such a honor, I believe the board should reconsider its decision if they make the championship. While there remain legitimate objections to the law, I do not believe that this bar on travel is compelled as a legal matter.

Below is the letter that I sent this weekend on the merits of the constitutional foundation for the decision (I have removed the addressee to avoid any harassment):

May 22, 2010

Thank you for sending me the material on the decision of Township High School District 113 to bar a trip of the varsity basketball team to Scottsdale, Arizona. You have asked me to look at the issue raised by the school district, which has obviously attracted considerable controversy. Particularly as a native Chicagoan, I am happy to look at the matter. For the record, I have not accepted any compensation directly or indirectly for this analysis and I have no connection to the school district. I should also disclose that I am a critic of the Arizona law and specifically its “reasonable suspicion” provision.

I have read the letter sent by Superintendent George V. Fornero to staff, parents and students regarding the trip scheduled for December 2010. The District stresses that the decision was not a political statement, but rather compelled as a matter of constitutional law. The operative language reads as follows:

Under long standing constitutional law, all school districts are required to provide an education to all children within the District’s borders regardless of immigration status. District 113 boasts a diverse student population and, as a school district, we believe in equal opportunity for each of our students. The selection of a girls’ varsity basketball team for the 2010-2011 winter athletic season will take place in November, 2010. The team has yet to be selected. When our students travel, the school district is responsible, both legally and ethically, for their safety, security and liberty. We cannot commit at this time to playing at a venue where some of our students’ safety or liberty might be placed at risk because of state immigration law. Our athletes will play in a competitive basketball tournament during their winter break.

The letter does not state whether this analysis by the District was based on state or federal constitutional law. In her May 17th letter, Board of Education President Bonnie Shlensky also stressed that this was a decision based on concerns over equal rights:

The safeguarding of equal rights for all of our students has long been a core value of our District. It is too early to tell whether the law recently instituted by Arizona will result in racial profiling. Certainly, there are many different views of the likely impact of the legislation on law enforcement practices. This decision in no way represents a political position – rather, the decision was based solely on the concern that a new state law in Arizona, yet untested, may have the effect of subjecting some our students to unwarranted scrutiny.

While I do not question the motives of the District, I fail to see the constitutional basis for the decision. As discussed below, I see no constitutional barrier for the District in sending the team to Arizona and, to the contrary, the decision to bar such a trip would raise questions of political judgment – the very danger that the District wisely wanted to avoid.

THE ARIZONA LAW

While I have opposed the “reasonable suspicion” provision of the Arizona law, there is a good-faith debate among lawyers and academics over the issue. The law essentially enforces existing federal laws as an act of “concurrent jurisdiction.” There is a threshold claim of unconstitutionality on the basis of federal preemption. Under the Supremacy Clause (Article VI, clause 2) of the United States Constitution, federal law can trump state law since “[t]he Laws of the United States … shall be the supreme Law of the Land.” There is no express preemption in the immigration laws, so the challenge would likely be based on implied preemption. I have argued that such implied preemption would be difficult to establish since the Supreme Court has recognized concurrent jurisdiction in such cases as De Canas v. Bica, 424 U.S. 351 (1976). The District does not appear to be basing its position on a view that the law is preempted.

The second constitutional claim concerns the “reasonable suspicion” provision. Under the Arizona law, a police officer can inquire into the immigration status of an individual:

[F]or any lawful stop made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. The person’s immigration status shall be verified with the federal government pursuant to 8 United States Code Section 1373(c).

The Arizona governor has asked Arizona Peace Officers Standards and Training Board to come up with guidelines on reasonable suspicion. However, it is important to note that Arizona officers (and other state and federal officers) already have the right to inquire as to a person’s legal status in a host of circumstances. Indeed, the federal government routinely demands proof of legal status and, under 8 USC 1304(e) and 8 USC 1306(a), aliens are required to carry their documents showing legal status. For some of us who oppose the law, the concern is that Arizona is contemplating a move beyond the existing law that could amount to racial profiling – even though the law itself bars racial profiling. That concern appears reflected in Ms. Shlensky’s statement that “[i]t is too early to tell whether the law recently instituted by Arizona will result in racial profiling.”

As a practical matter, it is hard to see the actual threat of enforcement against members of the District’s varsity basketball team. Even if enforced during the trip in December, an officer would have to have reasonable suspicion that a student was an illegal immigrant. It would be patently absurd for an officer to look at a group of basketball students and conclude that one member of the group is here illegally. No court would uphold such a stop, in my view. Indeed, no officer would expect a minor to be able to produce the same documentation as would an adult. To hold a child for lack of documentation would be doubly absurd. Of course, if the student were separated from the group and were held on suspicion of a crime, it is possible that immigration status would be confirmed but that would be the case in other states. Notably, even if a student is the child of illegal aliens, they are still viewed as citizens if they were born in the United States. It is, in my view, extremely implausible that police would have the basis to question, let alone arrest, a student on the basis of her immigration status.

It is also worth noting that such racial profiling (understandably raised by Ms. Shlensky) can occur under existing federal and state laws – I do not believe that the school should bar travel based on the expectation or fear that officials will act improperly. In the past, cases alleging such systemic racial profiling have been filed in Florida, Texas, and other states. If Arizona officers are directed to arbitrarily stop individuals based on their appearance or ethnicity, a court would likely halt such abuse. Finally, as shown in the recent case involving the school child who revealed her illegal status to the First Lady, federal officials retain the ultimately authority to decline such deportation and have indicated that they will not automatically process individuals turned over under the Arizona law. See Mother Of Student Who Questioned Michelle Obama Will Not Face Action, Washington Post, May 20, 2010; see also Oscar Avlia, Immigration Crack Down For Illinois, Chicago Tribune, May 19, 2010 (suggesting that the federal government may not deport individuals under the Arizona law).

THE CONSTITUTIONAL BASIS FOR A TRAVEL BAN

The quoted language from Mr. Fornero suggests that the school believes that it is constitutionally required to bar any travel where a child’s illegal immigration status might be questioned. First, as noted above, such inquiry can actually take place in any state when an officer has a valid reason to stop or arrest an individual. Second, even if Arizona did impose a heightened likelihood of such inquiry, it would not make the trip unconstitutional under either state or federal law. Indeed, any lawsuit filed on such grounds would be, in my view, dismissed as frivolous.

In 1982, the Supreme Court ruled, in Plyler v. Doe, 457 U.S. 202 (1982), that illegal immigrants cannot be denied public education. That equal protection decision, however, does not state that a school must protect illegal immigrants from any collateral exposure due to their status. Notably, the right of illegal immigrants to public education was a close matter with the Court producing a 5-4 decision with three separate concurrences. Even within the fractured majority, there is no support for the notion that a school must actively prevent any trips that could disclose the illegal status of students – particularly in the absence of any intentional discriminatory intent.

The constitutional obligation to supply public education does include equal opportunity to share in educational programs. Students might have an argument of a denial of equal opportunity if the district barred illegal immigrants from participating in such trips. In this case, however, the District has afforded equal opportunity in making all varsity students eligible to go to Arizona. The students may elect for whatever reasons not to go on such trips, but the opportunity is available to all. There are a host of reasons why parents may not want their children to go to any given state or country. Indeed, trips to foreign countries can expose children to a totalitarian regimes or legal systems that punish forms of free speech or specific religious practices. Some trips may involve travel in violation of the religious practices or beliefs of a student, such as travel on the Sabbath. A school district is required to make opportunities available on an equal basis, which allows such individual choices to be made. That is the better definition of what the District refers to as “ensuring equality [as] a fundamental value.”

The Court has drawn an analogous distinction between equal outcomes and equal opportunities in past cases. The Equal Protection Clause does not protect outcomes but opportunities under cases like Village of Arlington Heights v. Metropolitan Housing Development Corp, 429 U.S. 252 (1977). Notably, in cases of demonstrated discriminatory effect, the Court has still rejected equal protection claims (even in death penalty matters) where there is no showing of discriminatory intent. McCleskey v. Kemp, 481 U.S. 279 (1987). There is no discriminatory intent in a school participating in a tournament set up by a national sporting association.

While I oppose the Arizona law and have raised questions regarding the constitutionality of the reasonable suspicion provision, I also believe that it is dangerous for public school officials to become embroiled in such controversies. It is not normally the province of a school district to anticipate a ruling that a given state law is unconstitutional. The court system will resolve these questions in the course of time and protect the “equal rights” referenced by Ms. Shlensky. In the interim, a ban on travel seems more like a boycott which is a political question left to municipal and state policy makers. The proper forum for such a decision is the state legislature or the local city counsel.

Once again, I am very sympathetic to the concerns of the District and commend District officials in seeking to protect students, including those with illegal immigration status. As Justice Brennan wrote in Plyler, the danger of creating “an underclass presents [one of the] most difficult problems for a Nation that prides itself on adherence to principles of equality under law.” I also appreciate the statement of the District acknowledging that this is “a complex issue [upon which] reasonable people can disagree.” Yet, by the same token, it is always problematic for schools to take sides in such controversies – directly or indirectly. The District is required to maintain strict neutrality on political questions and, in the absence of a cognizable constitutional basis, the decision to bar travel to Arizona undermines such neutrality. For that reason, I believe the District officials have reached a conclusion that, while motivated by the best intentions, is based on a false legal assumption.

While I believe that people of good faith can disagree on the Arizona law, I honestly do not see the credible claim that the school would be engaging in a form of discrimination or otherwise unconstitutional act in sending a varsity team to Arizona. I would be happy to review the legal analysis leading to that conclusion. Otherwise, I hope that this analysis will help advance the discussion over this issue and that the parties will be able to reach a resolution based on their shared concern for the students in District 113.

Sincerely,

Jonathan Turley
Shapiro Professor of Public Interest Law
George Washington University