Illinois School Scraps Girl Varsity Basketball Team’s Visit To Arizona

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.


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 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.


Jonathan Turley
Shapiro Professor of Public Interest Law
George Washington University

29 thoughts on “Illinois School Scraps Girl Varsity Basketball Team’s Visit To Arizona”

  1. “Furthermore, the primitive civilization (the Indians) were themselves a immigrant group (having crossed over the Alaskan land bridge most likely because of a global warming period). These Indian immigrants had nothing remotely similar to an advanced civilization that colonialists would have recognized.”


    Native American culture was diversified throughout the Americas ranging from the magnificent civilizations of the Incas and Mayans to the nomadic traditions of the plains tribes like the Sioux, Cheyenne, Crow, Blackfeet, and Comanche. In fact, the Hopi of the American Southwest inhabit the oldest continually occupied city in North America. Most educated folk know that without the aid of friendly “primitive” Indian tribes, there would have been no permanent English colonies in America since the Europeans were particularly unsuited for colonizing the vast forests of North America and these vastly superior beings would have been starved out. Lots of other people who graduated grade school know that Native American civilization was decimated by diseases transmitted (sometimes intentionally) to them by the holy and civilized Christians who invaded their land. There was no syphilis or small pox until Columbus et al landed.

    Other people a tad smarter that you have noted Native American’s culture’s affect on the American psyche and love of liberty. No less a figure than that Jean Jacques Rousseau noted:

    Natural freedom is the only object of the policy of the [Native Americans]; with this freedom do nature and climate rule alone amongst them … [Native Americans] maintain their freedom and find abundant nourishment . . . [and are] people who live without laws, without police, without religion.

    The only ignorant savage I see here is – quite frankly — you!

  2. Judge opens bidding on controversial Brazil dam

    Environmentalists and indigenous groups say Belo Monte would devastate wildlife and the livelihoods of 40,000 people who live in the area to be flooded. They also argue that the energy generated by the dam will largely go to big mining operations, instead of benefiting most Brazilians.

    so how is this different in Brazil?

  3. Tootie:

    did Native Americans have property rights? If so why and if not why not?

  4. mespo:

    Yeah, those dang colonialists were just like our current invaders: breaking into Indians lands, flocking to massive Indian sea ports with skyscrapers, utilizing Indian built power grids, and sauntering into grand domed Capital cities with Indian museums, Indian libraries, Indian subway systems, Indian trains, and Indian airports.

    Oh those darn colonialists!

    They even tapped into the Indian social security system, the Indian public schools, Indian colleges and universities, Indian hospitals (for free, demanding medical care by specialists who trained for 15 years),and swamped all those famous Indian public services.

    Cripes, all those colonialists had to do was turn around and walk back home! It’s not like they couldn’t get back or anything.

    What pigs!

    Those greedy little colonialists knew full well, as well as our virtuous, benevolent, intruders from the south, what the length, the breadth, and the extent of this continent was (in your comparison, apparently). After all, the nature of this continent was fully known to those evil colonialists as it had been broadcast throughout the world on CNN, NBC, ABC and CBS. Those vile colonialists could have downloaded a map from the internet! And before that, the knowledge of this place was spread around the globe in books and magazines. The colonialists are without excuse!

    Having access to all manner of satellite feeds, communications, and Global Positioning information those evil wretched little colonialists knew as much about the size of this continent, the kind and number of the people who resided here, where their cities were, where their borders were, where their states were, where their cops and military were, as much as those precious, kind, unselfish, intelligent, and pure-as-the-driven-snow alien invaders of today.

    Curses on those colonialists! Curses on them! White devils!

    Why didn’t they call 911? Why didn’t they ask for help? Why didn’t they stop at the chamber of commerce? They could have at least picked up a free map and complimentary key chain!

    What did the colonialists NOT get about who lived here anyway? The massive harbors receiving the QE2 didn’t give them a clue someone lived here? Who did they think built the expressways? The dams? The gigantic cities?

    Who the hell did they think built Cape Canaveral?


    The nerve of those colonialists to come ashore and squat at the local Hotel 6, stop by the Goodwill store, shop for pudding at Walmart, and hang out at Home Depot until they got a job renovating Teepees.

    Shame, shame, shame on them!

    Okay Mespo, I’m just joking. The colonialists had no real idea who lived here because there was only a primitive civilization which had not even discovered the wheel let alone all the trappings and symbols of civilization. They didn’t even have the requisite port-towns along the coast signaling human organization. None of the clues indicated that this territory had been settled by anyone since Adam.

    And by the time any hint of order was discovered, the people at the back of the line had pushed the people at the front of the line through the door and stormed the place. (Think Christmas shopping the day after Thanksgiving).

    No one in the entire world had maps to indicate what this place (America) was and how big. You pretend they did and make a direct comparison of the colonialists to the alien invaders in our midst.

    That is a crazy comparison to the nth degree.

    Furthermore, the primitive civilization (the Indians) were themselves a immigrant group (having crossed over the Alaskan land bridge most likely because of a global warming period). These Indian immigrants had nothing remotely similar to an advanced civilization that colonialists would have recognized.

    There was nothing here even as advanced as the ancient civilization of Greece at the time of Aristotle and the colonialists were well aware of what kind of civilization that was. If an ancient civilization like Greece was even more advanced than the few Indians colonialists found roaming the woods what would give them any notion that this placed belong to anyone in particular?

    But I do appreciate that you at least, in backhanded fashion, admit the illegals are invaders (according to your crazy interpretation of history).

    Thanks a bunch!

    Article 4 Section 4 US Constitution

  5. And you know mespo, the Indians in Texas had the first right, then the Mexicans, i.e. Spanish had a better right. Then we, our ancestors came over and stole it from them. Now some people complain that they are still here and the family’s want to come as well.

    What the hell is wrong with that picture? Or is my thinking that we should all just try and get along wrong? If people have not figured it out yet. Then don’t own anything. By owning something you, say to the world. I am divine. We all are going to die at some point. So while you are here and have the possessions that you have, you only have a better right to use them, until they are taken away or you die.

    Governments and Sovereigns don’t last for ever, look at the Dutch, French, Spain, et al. That is the most recent history.

    If you wanna take it back a few more century’s. Where is Siam and what happened to Persia? What were they before and was there really a colony called Atlantis?

  6. Tootie:

    “Great analysis. This is what happens when people break into a country, flaunt its laws, and trample its values and traditions.

    Others end up paying the price.


    It is wrong to cheat whether on a test, traveling without bouncing the basketball, or breaking into other peoples’ home country stealing their heritage, government services and assaulting their opinion of fair play.”


    I assume you are referring to the American Indians here. That’s exactly what Siting Bull was saying:

    “They claim this mother of ours, the Earth, for their own use, and fence their neighbors away from her, and deface her with their buildings and their refuse.”

  7. This is not Immigration Reform and it is a political move; however, it is a welcomed response.


    WASHINGTON — Under pressure to take action, President Barack Obama is ordering 1,200 National Guard troops to boost security along the U.S.-Mexico border, officials said Tuesday, pre-empting Republican efforts to force a congressional vote to send the troops.

  8. Great analysis. This is what happens when people break into a country, flaunt its laws, and trample its values and traditions.

    Others end up paying the price.

    If the parents were worried about their illegal kids then they can stay home. Would the team then not qualify to compete? Could be.

    But then, the American kids would learn a lesson, albeit a painful one. It is wrong to cheat whether on a test, traveling without bouncing the basketball, or breaking into other peoples’ home country stealing their heritage, government services and assaulting their opinion of fair play.

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