Are you illegal? Remarkably, the United States Supreme Court ruled in 1982 that we can’t ask that question about K-12 grade public school children. Hmm?
What has happened with illegal immigration in the U.S. since 1982? It’s a funny ruling, really, and not simply because it was Constitutionally unsound, if not incompetent; it’s funny because the federal government, as designed, had no role of any kind in primary education. Yet, the Supreme Court found that illegal aliens had a federal Constitutional right to a free public school education in any state in the union. Prior to that ruling, even U.S. citizens had no such federal right. The ruling is even funnier because if an illegal alien graduates and wants to teach at the same public school, the law mandates that we verify his or her legal status.
Go figure that out.
The Court held that school systems cannot step into the shoes of the federal government and “enforce” immigration law by asking for proof that you actually live in the country where you are trying to go to school. If you are a resident of Culpepper or Buchanan counties in Virginia, Fairfax public schools can ask for your proof of Fairfax residency. If you fail to prove legal residency, they can bar you from attending school in Fairfax County. Why? It’s simple, you should be attending public school in your home county.
If you are a citizen of Honduras, however, you may attend school in Fairfax County, even if you reside there illegally. That’s the state of federal Constitutional law on illegal immigrants and school age children. You may ask about residency, but not legal residency.
Recently, all heck broke loose in liberal Fairfax County, Virginia when a teacher asked a student her legal status. In Centerville High School, days after the election, an English teacher instructing sophomores invited her students to write about the election and to let their feelings out. Indeed, many teachers did this across the country as they reacted to anxiety and anger in their rooms. She even said they could use curse words. Reportedly, one student wrote that Trump “judges people by their race and gender ... Trump can kiss my a--. I am thankful for the life I have and my family (which Trump is trying to deport because we are Hispanic, but whatever)."
The teacher handed the assignment back later and wrote: “If I may ask, are you legal or illegal? It depends on that factor for deportation. I hope you get to stay!" The student went home and shared the comment with her parents, her friends, and as a picture on social media. Who do you think is in trouble in Fairfax County?
I seriously doubt the teacher is some hidden Trump supporter or I.C.E. agent. Moreover, as someone who has taught, and used the Socratic method as a law professor to engage thinking, I saw this question for what it was. It appears the teacher was rightly trying to get the student to recognize that she is not subject to deportation if she is here legally. If this teacher made an error, it was in inviting children to feel, rather than think. Cathartic as it might have been for students to express their emotions, a classroom at that age is where learning takes place through critical analysis. Critical analysis requires the application of thought, and learning to think and reason is how we teach children to work through problems that upset them like adults. Reason, critical thought, and maturity are why adults don’t stamp their feet, hold their breath, or cry in the middle of a crowded store.
When this teacher tried to get this student to think after inviting her instead to feel, not surprisingly, the student was ill-prepared. Learning hurt her feelings, and so she went home and kept feeling, instead of thinking. It is not the teacher’s fault that the student publicized an exchange meant to inform. This student’s actions now have her allegedly being questioned, picked on, and ostracized. Welcome to high school.
The school system did something dumb too. It issued a statement about its policy on asking the forbidden question, repeating immigration tripe as if this poor teacher had water-boarded the student in order to turn her over to the proper authorities. Where is the common sense? I again use the question to invite thinking and learning. Decent Americans and thoughtful Virginians ought to be sneering at this idiocy.
We have reached this befuddling American moment when crime pays because we created the incentives for illegal aliens to enter and stay in this country, and in so doing we created an army of sympathizers who confuse the great value of legal immigration with a right of open border migration. When I search for how or why Mr. Trump won, the world reminds me that we are a country that forbids asking about legal status, victimizes an instigator, punishes an American teacher, and encourages our population to feel, rather than think. Thinking Americans don’t get it. They don’t know why foreign born students, brought here illegally, are rewarded with a free American education when it seems obvious that result is both bad law and public policy, if one wants to discourage illegal immigration.
This election likely tilts the Supreme Court back toward federalism and limited government. It may also mean better border security and enforcement. It probably does not mean the federal government will be chasing down high school kids and grilling them on their legal status over an English assignment. However, it may be that in the coming years, poorly decided, horribly reasoned, and profoundly incorrect Constitutional decisions like Plyler v. Doe will be over-turned. When it is, one major incentive to break our laws and come here illegally will fall. In the interim, if you are an American educator, remember the important lesson here, there is at least one dumb question, and you should never ask it.
Richard Kelsey is an attorney practicing with The Impresa Legal Group. A former Assistant Law School Dean and a former Virginia state court law clerk and commercial litigator, Kelsey was also the CEO of a technology company. He has previously taught legal writing and pre-trial practice. He is a regular commentator on legal and political issues in print, and on radio and TV. His opinions are his own, and do not represent any institution or entity.