Misguided Thinking, or Perhaps Just More Hate: Florida's Policies of Denying the Right to Education to its U.S. Citizens...

In perhaps yet another example of state politicians so frustrated with what they believe is the federal government's failure to address the perceived problems associated with our country's immigration policy, Florida leaders have passed education regulations that are unwise, costly, and will likely be held unconstitutional. In this, yet another one of my essays attempting to provide an accurate and counter-narrative to the current state of public discourse on immigration, I will examine the constitutionally infirm state education regulations that discriminate against United States citizen minors and their efforts to seek higher education. This essay I believe will provide a compelling case why this state's legislature should reconsider its decision of earlier this week, and should begin the process of passing a law that effectively overturns these unsound regulations. Sadly, just days ago, a Florida Senate committee voted done a bill that would have addressed this problem, subject to certain conditions. This essay will also provide the likely basis for the federal court examining this issue to strike down these problematic regulations.

In terms of the current law, Florida State Board of Education and Florida Board of Governors policies treat United States citizen students who reside in Florida as "non-residents" solely because their parents are undocumented immigrants. The effect of these polices is that United States citizen minors of undocumented parents cannot prove residency, and are therefore required to pay as much as five times more for their college education than other similarly situated citizen minors.

Many critics of these policies, which include Republicans and Democrats alike, assert that the motivations of these policies are to punish these citizens for the actions of their parents. Despite what I suspect would be now classic xenophobic rhetoric against all immigrants, the truth is that these policies will in all probability be found to be unconstitutional. In a lawsuit filed this past fall, the Southern Poverty Law Center, a leading and nationally-regarded civil rights law firm, filed a federal class action lawsuit challenging the policies. The basis for the suit is that the policies violate both the United States Constitution's Equal Protection Clause and the Supremacy Clause.

While the Supremacy Clause issue will be influenced by the United States' Supreme Court case this term concerning Arizona's now infamous SB-1070 law (space constraint require me to address this matter on another day), the Equal Protection argument will probably lead the federal court to strike down the Florida policies in question. As a brief primer, or overview, of the Equal Protection argument, let me first note that it a basic premise of constitutional law that if you are born in the United States, you are a citizen. See the Fourteenth Amendment, which provides, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The Supreme Court confirmed this point in United States v. Wong Kim Ark.

Some might say, "okay, the minors in question are citizens, so what? Why can't Florida force them to be treated differently than minor citizens of citizen parents?" The simple answer is that a state cannot punish innocent citizens for acts of their parents, including in the immigration context. While the United States Supreme Court has not yet addressed this exact issue, in case that was arguably less compelling -- Plyler v. Doe -- the Court held that a state could not deny free elementary and secondary public education to undocumented immigrant children. The Plyler Court endorsed separating the parents' conduct and status from that of their children. In other words, the Court specifically rejected a state's attempt to punish children for the acts of their parents. Indeed, the Court stressed the parents' acts were beyond the children's control, and "legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice."

Moreover, federal courts have repeatedly refused to punish children for the acts of their undocumented parents. For instance, in Lewis v. Thompson, undocumented mothers were denied from qualifying for medical assistance, thus precluding any coverage of her citizen child. The federal circuit court determined that citizen children that were denied a "welfare benefit, itself unrelated to immigration on a discriminatory basis violates the Equal Protection Clause." Likewise, in Doe v. Reivitz, a federal court held that citizen children could not be denied benefits under the Aid to Families with Dependent Children-Unemployed Parent program solely because the relevant parent under the statute was an undocumented alien.

The above legal authority, which includes the leading Supreme Court decision on the right to education in an immigration context, strongly suggests that the state of Florida should put an end to its wasteful, and in all probability unconstitutional polices. Florida needs to be fair and prudent, and allow all United States citizens the right to higher education in a non-discriminatory fashion. The states of Arizona and Alabama, with all their recent economic problems associated with their anti-immigrant laws, are ample examples of the folly of demonizing immigrants and their families. Indeed, this great state's history demonstrates that if we allow immigrants and their children to prosper, as the Cuban community has amply shown, all of us benefit economically. It is past time to end any discrimination against any United States citizen.