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.

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

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

  1. New Mexico has the highest hispanic population of any state. Perry of Texas would not attempt this as he would be thrown out of office. I hope the latino population of Arizona votes this governor out of office.

  2. Governor Richardson of New Mexico is a democrat of Hispanic descent. Of course he opposed the Arizona law. New Mexico is a more progressive state.

  3. Blouise,

    The U.S./Mexico border issues are multifactorial and most often there appear to be no ‘right’ ways to fix them. I have struggled with the issue for about 30 years in Arizona.

    NM Governor Richardson is opposed to the Arizona law.
    _________

    Quote:

    “New Mexico’s governor says it is a step backward”

    Other border states shun Arizona’s immigration law

    http://azstarnet.com/news/national/article_9e4bcf49-4aa1-5b6c-8316-731f5ef50287.html

  4. Former Federal LEO,

    Thank you for a statement that makes this situation more comprehensible by describing the relevant circumstances.

    I also remember the black/white segregation from the 50’s but only from the perspective of a visitor. I was 10 years old and it was one of our family’s 6 week vacations with the “south” as our destination. My parents warned my brothers and I that we would be entering a culture different than the one we lived in. I well remember “white only” or “colored only” restrooms, drinking fountains, park benches, and restaurants. I was always afraid that I would go to the wrong bathroom or sit on the wrong bench and that I would get in trouble or worse, get someone else in trouble. That fog of fear hung over everything and colored, no pun intended, the entire trip. It also made me angry. I carry the residue of that trip with me to this day and I admit that it colors my view of the situation in AZ.

    Thus I am one person on this blog who needed to read your post. Thank you and I will try to modify my view of the situation in AZ.

    Surely New Mexico is experiencing some of the same problems. What is their state legislature doing about it?

  5. Swarthmore,
    It is very possible that the school has Latino kids in it. Not just from Highwood, but from Highland Park as well.

  6. Thank you Buddha.

    I oppose any athletic boycott and I strongly opposed the 1980 Olympic boycott by Pres. Carter, a man that I liked at the time.

    Let the athletes decide what they want to do. They are only at this age and at this skill level once in their lifetimes.

    Ironically, reflect about 20 years ago while considering our current presence/quagmire in Afghanistan…

    Quoted from Wiki,

    “The 1979 Soviet invasion of Afghanistan spurred United States President Jimmy Carter to issue an ultimatum that the United States would boycott the Moscow Olympics if Soviet troops did not withdraw from the country by 12:01 A.M. Eastern Standard Time on February 20, 1980”

  7. FFLEO,

    I don’t think anyone in their right mind would consider you a racist based on your posts. They might mistake you for a scholar of American music, a man of sharp wit and good character, but not a racist. Especially for a well considered and presented opinion.

  8. As a fulltime, permanent 33.5-year Arizona resident, I support the new Arizona Immigration law resulting from the original SB 1070 (revised late April, now HB 2162). As a former Federal LEO, I know that if I were still engaged in LE, I could—without discrimination or bias—fairly enforce the provisions of the law.

    *Illegal* immigration is a longstanding human and environmental problem for many citizens inhabiting the U.S. Border States. I have observed the environmental damage firsthand and there are many detailed articles within Arizona newspapers with photographs of illegal roads in wilderness areas, and mounds of trash and human excrement left by *illegal* immigrants and drug smugglers. Border homes are frequently burglarized and private/public property destroyed. Even during the early 1980s in Texas borderlands, I had personal friends/colleagues who told me that when they went on detail or vacation they had to remove every valuable item from their homes because it was common for them to return to broken doors and/or windows with property loss/destruction.

    If the Federal government had enforced *existing* immigration laws, there would have been no need for SB 1070/HB 2162, which largely mirrors Federal immigration law. As with many issues resulting of the non-enforcement of any of the many laws already on the books throughout the U.S., most often the citizens who are directly faced with the brunt of criminal activity against their persons or property are finally forced to take local action. That is what occurred within Arizona. Arizonan’s did not take to the border with firearms to seek revenge; they worked through the long, painstakingly slow legislative processes while the criminal activity increased.

    The person most exemplifying the struggle involving damaged property, drug/human smuggling across his vast ranch, while still assisting illegal immigrants in need, was rancher Robert Krentz. His murder—*allegedly* by an illegal immigrant, based on Mr. Krentz’ last words via his radio transmission to others—finally sparked limited action by some Arizona legislators. Thereafter, SB 1070/HB 2162 forced the hand of Federal legislators and the president to take notice of the problem, which is what I consider as the law’s most important effect, to date.

    Of course, you cannot know simply by my written words within an online blawg as to whether or not I am a racist because I support this new law. To give you some basis to ‘judge’, I can only relay my following experiences. In the 1950s, I abhorred the black and white segregated restrooms, drinking fountains, and blacks-only balcony seats in movie theaters. I was born in a Texas town bordering Mexico, I lived in several other border towns (my Father was in the military), and my youngest playmates were largely Hispanic; some of my fondest early memories were of eating those huge hand-tossed tortillas made by my friends’ mothers. I trained Hispanic and African-American Army medics—some of whom passed tests because of my extra tutorship. During my LE career within Arizona, I had LE contacts with many Hispanics and I worked closely with other Hispanic LEOs and non-LE personnel during my Federal service, spanning almost 26 years. To complete my partial list, my first college girlfriend in Arizona, while attending college after my discharge from the Army, was a young Hispanic woman.

    Please bear in mind, many Arizona Hispanics, Anglos who married and give birth to children with Hispanic spouses, and Anglos who have remarried Hispanic spouses and then fully adopt their Hispanic ‘step-children’, support the new law. To those of us who support the Arizona law, we premise our concerns on the *illegal* term in illegal immigration and not on any prejudice against the phenotype or national origin of the person.

    *Illegal* immigration is a complex and divisive issue and I wanted to ensure that others here knew that I support the new Arizona law and the efforts that are ongoing to help ensure the law’s proper enforcement by all LEOs. One on the many reasons I voted for the Democratic ticket in 2008, especially for Mr. Obama, was because of pledges for immigration reform—that still has not occurred and SB 1070/HB 2162 might be the catalyst to prompt a broken Congress and Administration to act (as I mentioned in a previous thread).

    Professor Turley, I appreciate your legal opinion in this specific instance and your fairness, which is a hallmark of your blawg.

  9. Buddha:

    I agree that its the kids’ call. I would present both sides fairly and let them decide. It would be a learning experience for all involved – not the least of which would be the parents of the kids. Principles or prizes – which will it be?

  10. The Professor has quoted from an old version of the law; the “lawful contact” language has been changed. Cue the frog please.

  11. It is not only the players and staff who will be traveling to Scottsdale but also, one could safely surmise, bus loads of student fans and supports and their parents. The District’s concern is understandable and, in my opinion, admirable.

    Whatever the final decision … Illinois School District 113’s concerns are now very public and Arizona should have the grace to blush … except, of course, AZ teabaggers, for anyone who uses dangling tea bags as hat fringe can’t possibly be embarrassed by anything.

  12. Legally and philosophically what mespo and the Prof said.

    However, I’d like to say one word and that word is “kids”.

    True, this is a teaching opportunity about civics that’s hard to ignore but are there not other ways to send Arizona a message aside from politicizing intramural athletic competitions for high schoolers? The kids worked hard to get where they are and your sacrifices made by the team are double – their effort and their right to compete as earned.

    I’m not saying I’m not for the principled stand. I’m saying there are other factors to consider when doing a cost/benefit analysis. Is the benefit of this particular boycott worth the costs to the kids? And I think that question can only be answered by the individual parents and children directly impacted. Personally, I think the lesson about protesting unjust laws merits encouraging the principled stand for what it’s worth, but ultimately it’s not my question to answer.

  13. I see no reason the District should be or feel compelled to send the kids to AZ. If they choose to boycott the event in political protest against an unjust law, I see no difference between that and the US boycott of the Olympics over politics.

    In fact, I’d say it’a about time folks stood their ground for American values and against the creeping tyrany of the right wing. Many here on these pages decried the lack of effective dissent and real protests during Bush’s terms while ill-conceived wars were waged and our Constitutional rights eroded.

  14. rafflaw Highland Park High School has not been known for having latino students. Do they live in Highwood? Palin was in Illinois criticizing the school district.

  15. I am with you on this one AY. The School District is right to cancel the trip to Arizona for the safety of the children. Can you imagine what would happen to the District if one of the kids was arrested and detained during the trip? The parents would rightfully be incensed. While an arrest of one of the students might not be likely, how can any School take that chance? However, I agree with Prof. Turley that the trip is not barred due to a constitutional issue.

  16. Cogent legal analysis, as always, and a model of prudence, but there are moral principles just as compelling as legal principles that could justify the team not going. Perhaps solidarity with a unjustly vilified segment of the population, or contempt for a law so obviously racially biased in its application would suffice.

    Martin Luther King was met with the same logical arguments for avoiding the Montgomery Bus Boycott. It was argued that it was not the place of religious leaders to embroil themselves in a controversy about race. Desegregation would happen in due time they were admonished.

    Thankfully MLK ignored the wise counsel of men who perfectly understood the law and prudence, and embarked on an implausible task to confront racism. The Montgomery Bus Boycott was the first victory for the civil rights movement. Sometimes great ideas require freedom from the constriction of prudence to blossom.

  17. I guess Comity is out the window as a concept for AZ to understand.

  18. Well let’s say this. If a school takes a child on a trip they are to insure the safety of them until they return and are released to the parents. If they go to Arizona and they are arrested under the states present law, it will present a problem for the school district, in its duty to protect under title IX SCHOOL FUNDING.

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