It’s tempting, sometimes, to think that we can throw the proverbial Hail Mary pass and move down the field (that’s the right sports metaphor, right?).
But in advocacy, as in life, it’s seldom that simple.
This is one of those cases.
Around the country, sparked first by the living nightmare that is now Alabama, anti-immigrant forces have been going after what they’ve long considered the Holy Grail:
Kicking immigrant kids out of Kindergarten.
It was at least 8 years ago that I first heard Kris Kobach’s assertion that the U.S. Supreme Court’s 1982 decision in Plyler v. Doe, which established the right of every child in the U.S. to attend public K-12 schools, was ‘fatally flawed’, I think along with some pronouncement that he could win a different decision if he had a chance to try the case.
Since then, he has been hoping for his chance.
With the Alabama legislature’s approval of a requirement that K-12 schools verify the immigration status of students, that door was opened, even though that provision was pretty quickly enjoined in federal court.
This legislative session has already seen similar debates in other states, and I guarantee that there’s more to come: in the ‘war of attrition’ that the anti-immigrant crowd has been waging for years, barring immigrant kids from going to school would be a really big deal.
Immigrants and their allies, then, are justifiably hell-bent on stopping these attacks. In our fervor, I think we’re vulnerable to make a serious error.
We have to win this battle on the merits. We can’t take a shortcut, point to the Supreme Court, and just argue legal precedent. Yes, scaring legislators with threats of lawsuits and confusing them with references to previous decisions can sometimes work. And, yes, I fully believe that the U.S. Supreme Court (and I mean this specific one) would still decide a similar case the same way. Absolutely. But precedent can change. Winds can shift. And, so, the foundation can fall out from under those arguments that once looked so solid.
Besides, who was ever motivated to stand up and join a cause to fight against something just because it contradicts Justice Brennan’s majority opinion?
Because the truth is, Supreme Court or no Supreme Court, turning our teachers into immigration agents is a horrible idea. Keeping children, most of whom will eventually qualify for U.S. citizenship, out of school and on the streets is really terrible policy. Sending ripple effects through mixed-status families and communities, depressing the educational attainment of an entire generation, just because we hope that it might make some parents leave the country, is a nightmare scenario. Kicking kids out of Kindergarten because we don’t approve of their mom and dad is not an action of a place worthy to be called the United States of America.
Those need to be our arguments, not recitations of precedent, even that which is based on a legal principle as important as the 14th Amendment to the U.S. Constitution.
We can win this.
I truly believe that a majority of Americans opposes this idea, and that we can convince state lawmakers that this is not the way to prove a point on immigration reform. I think that we can find new allies–in teachers and administrators and law enforcement officers and business leaders–and that we can emerge from this struggle poised for more success on other fronts.
But we’ve got to fight.
It was bad policy in 1982, and it’s bad policy today.
We don’t need a precedent to tell us that.