Hispanic Interest Coalition of Alabama v. Governor of Alabama , 691 F.3d 1236 ( 2012 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14535; 11-14675
________________________
D.C. Docket No. 5:11-cv-02484-SLB
HISPANIC INTEREST COALITION OF ALABAMA,
AIDS ACTION COALITION,
HUNTSVILLE INTERNATIONAL HELP CENTER,
INTERPRETERS AND TRANSLATORS ASSOCIATION OF ALABAMA,
ALABAMA APPLESEED CENTER FOR LAW & JUSTICE, INC.,
SERVICE EMPLOYEES INTERNATIONAL UNION,
SOUTHERN REGIONAL JOINT BOARD OF WORKERS UNITED,
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION,
LOCAL 1657 UNITED FOOD AND COMMERCIAL WORKERS
INTERNATIONAL UNION,
DREAMACTIVIST.ORG,
GREATER BIRMINGHAM MINISTRIES,
BOAT PEOPLE SOS,
MATT WEBSTER,
MARIA D. CEJA ZAMORA,
PAMELA LONG,
JUAN PABLO BLACK ROMERO,
CHRISTOPHER BARTON THAU,
ELLIN JIMMERSON,
ROBERT BARBER,
DANIEL UPTON,
JEFFREY ALLEN BECK,
MICHELLE CUMMINGS,
ESAYAS HAILE,
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FISEHA TESFAMARIAM,
JANE DOE,
#1, allowed by order [103],
JANE DOE,
#2, allowed by order [103],
JANE DOE,
#3, allowed by order [103],
JANE DOE,
#4, allowed by order [103],
JANE DOE,
#5, allowed by order [103],
JANE DOE,
#6, allowed by order [103],
JOHN DOE,
#1, a minor, by his legal guardian Matt Webster,
allowed by order [103],
JOHN DOE,
#2, allowed by order [103],
JOHN DOE,
#3, allowed by order [103],
JOHN DOE,
#4, allowed by order [103],
JOHN DOE,
#5, allowed by order [103],
JOHN DOE,
#6, allowed by order [103]
llllllllllllllllllllllllllllllllllllllllPlaintiffs - Appellants
llllllllllllllllllllllllllllllllllllllllCross Appellees,
versus
GOVERNOR OF ALABAMA,
ATTORNEY GENERAL, STATE OF ALABAMA,
ALABAMA STATE SUPERINTENDENT OF EDUCATION,
ALABAMA CHANCELLOR OF POSTSECONDARY EDUCATION,
DISTRICT ATTORNEY FOR MADISON COUNTY,
llllllllllllllllllllllllllllllllllllllllDefendants - Appellees
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llllllllllllllllllllllllllllllllllllllllCross Appellants,
SUPERINTENDENT OF HUNTSVILLE CITY SCHOOL SYSTEM, et al.,
llllllllllllllllllllllllllllllllllllllllDefendants - Appellees,
CENTRAL ALABAMA FAIR HOUSING CENTER,
FAIR HOUSING CENTER OF NORTHERN ALABAMA, et al.,
llllllllllllllllllllllllllllllllllllllllAmicus Curiae.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
________________________
(August 20, 2012)
Before WILSON and MARTIN, Circuit Judges, and VOORHEES,* District Judge.
WILSON, Circuit Judge:
This appeal presents the challenges of private plaintiffs to various
provisions of Alabama’s House Bill 56, the “Beason–Hammon Alabama Taxpayer
and Citizen Protection Act” (H.B. 56). Relevant to this appeal, the plaintiffs here
(the HICA Plaintiffs) brought suit against defendants (the State Officials)
contending that sections 8, 10, 11(a), 12(a), 13, 18, 27, 28, and 301 are preempted
*
Honorable Richard L. Voorhees, United States District Judge for the Western District of
North Carolina, sitting by designation.
1
Consistent with how this case has been presented, we reference the originally designated
sections of H.B. 56 rather than the Alabama Code section where the provisions are currently
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by federal law; that section 28 violates the Equal Protection Clause; and that the
last sentence of sections 10(e), 11(e), and 13(h) violates the Compulsory Process
Clause.2 In the companion case brought by the United States, we have concluded
that preliminary injunction of sections 10, 11(a), 13(a), and 27 is appropriate, and
that injunction of sections 12, 18, and 30 is not supportable at this stage of
litigation.3 See United States v. Alabama, Nos. 11-14532, 11-14674. The
operation of those sections and rationale for our disposition are set forth fully in
the companion case, and herein we address the HICA Plaintiffs’ challenges not
already covered in that opinion.4
Section 8 provides that an unlawfully present alien “shall not be permitted
housed.
2
Additional provisions that were unsuccessfully challenged in the district court are not
contested here. Furthermore, the district court’s ruling concerning section 13 is not contested in
this appeal.
3
In briefing filed after the decision in Arizona v. United States, 567 U.S. ___, 132 S. Ct.
2492 (2012), the HICA Plaintiffs maintain that sections 12 and 18 are preempted as requiring
extended detention to conduct immigration status checks. As we stated in the United States’s
companion case, however, Arizona instructs that a facial challenge is premature insofar as the
statutes could be construed not to require unlawful detention. We therefore reject the HICA
Plaintiffs’ arguments to the contrary and affirm the district court’s decision regarding sections 12
and 18. Additionally, to the extent that the HICA Plaintiffs now challenge a portion of section
19, we do not consider that argument, which was raised for the first time in the post-Arizona
supplemental briefing. Finally, for the reasons stated in the United States’s companion case, we
do not find at this time that section 30 is facially invalid.
4
Insofar as the HICA Plaintiffs argue that sections 10 and 27 are preempted, we dismiss
the appeal as moot in light of our ruling in the companion case.
4
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to enroll in or attend any public postsecondary education institution” in Alabama.
Ala. Code § 31-13-8. In order to execute this prohibition, officers of those
institutions may “seek federal verification of an alien’s immigration status with the
federal government” pursuant to 8 U.S.C. § 1373(c) but cannot independently
make a final determination about the immigration status of an alien. Id. Section 8
also renders unlawfully present aliens ineligible for “any postsecondary education
benefit, including, but not limited to, scholarships, grants, or financial aid” not
otherwise required by law. Id.Sections 10(e), 11(e), and 13(h) each prescribe the means by which a
conviction for the corresponding criminal provision may be attained. Each section
ends in a common sentence mandating that the Alabama courts “shall consider
only the federal government’s [§ 1373(c)] verification in determining whether an
alien is” lawfully present in the United States, Ala. Code §§ 31-13-10(e), -13(h),
or authorized to work, id. § 31-13-11(e).
Section 28 provides a process for schools to collect data about the
immigration status of students who enroll in public school. Schools are required
to determine whether an enrolling child “was born outside the jurisdiction of the
United States or is the child of an alien not lawfully present in the United States.”
Id. § 31-13-27(a)(1). That determination is made based on the birth certificate of
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the child. Id. § 31-13-27(a)(2). If none is available, or if the certificate reflects
that “the student was born outside . . . the United States or is the child of an alien
not lawfully present in the United States,” then the enrolling child’s parent or
guardian must notify the school of the “actual citizenship or immigration status of
the student under federal law.” Id. § 31-13-27(a)(3). This notification consists of
(a) official citizenship or immigration documentation and (b) an attestation under
penalty of perjury that the document identifies the child. Id. § 31-13-27(a)(4). If
the statutory notification is not provided, then the student is presumed to be “an
alien unlawfully present in the United States.” Id. § 31-13-27(a)(5).
Before H.B. 56 became effective, the HICA Plaintiffs, along with the United
States, filed suit to invalidate certain provisions of the law. The HICA Plaintiffs
moved to preliminarily enjoin the operation of numerous provisions of the law,
and the district court consolidated its case with the related suit brought by the
United States for purposes of deciding the injunction. Relevant here, the district
court enjoined sections 8, 11(a), and 13 as preempted by federal law and sections
10(e), 11(e), and 13(h) as violative of the Compulsory Process Clause. It also
found that none of the HICA Plaintiffs had standing to challenge section 28.
Both sides appealed. The United States and HICA Plaintiffs contested the
district court’s denial of a preliminary injunction, and Alabama cross-appealed the
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district court’s grant of preliminary injunctive relief. After filing its notice of
appeal, the United States and HICA Plaintiffs sought from this court an injunction
pending appeal to prevent enforcement of the sections for which the district court
denied an injunction. A panel of this court granted in part the motion for
injunction pending appeal, enjoining enforcement of sections 10 and 28. Later,
after briefing and oral argument, we modified the injunction pending ultimate
disposition of this appeal and enjoined enforcement of sections 27 and 30.
Having closely considered the positions and new briefing of the parties in
light of the recent decision in Arizona v. United States, 567 U.S. ___, 132 S. Ct.
2492 (2012), we affirm in part, reverse in part, and vacate in part the order of the
district court, and we dismiss parts of the HICA Plaintiffs’ appeal as moot.
Specifically, we affirm the district court with respect to the challenges to sections
12, 18, and 30. We further conclude that at least one organization has standing to
challenge section 28 and that the HICA Plaintiffs are likely to succeed on the
claim that section 28 violates the Equal Protection Clause. Therefore, we reverse
the district court’s decision regarding this section and remand for the entry of a
preliminary injunction. Because the Alabama legislature has eliminated the
challenged language from section 8, we vacate as moot the district court’s
injunction of that provision and remand for the dismissal of the challenge to that
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section.5 In light of our decision regarding the substantive provisions of sections
10, 11, and 13, we vacate as moot the district court’s injunction of the last
sentence of sections 10(e), 11(e), and 13(h). Finally, because we find sections 10
and 27 preempted in the companion case brought by the United States, we dismiss
as moot the HICA Plaintiffs’ appeal as to these sections.
I. Standard of Review
We review a district court’s grant of a preliminary injunction for abuse of
discretion. McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.
1998). Legal determinations underlying the grant of an injunction are reviewed de
novo, and factual determinations are reviewed for clear error. Cumulus Media,
Inc. v. Clear Channel Commc’ns, Inc., 304 F.3d 1167, 1171–72 (11th Cir. 2002).
II. Discussion
A preliminary injunction may be granted to a moving party who establishes
“(1) substantial likelihood of success on the merits; (2) irreparable injury will be
suffered unless the injunction issues; (3) the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause the opposing
party; and (4) if issued, the injunction would not be adverse to the public interest.”
5
In the United States’s companion case, we found a likelihood of success on the
preemption claims made against sections 10, 11(a), 13(a), 16, 17, and 27.
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Robertson, 147 F.3d at 1306. We address these factors in turn, focusing in
particular on the most contested determination—whether the HICA Plaintiffs are
likely to succeed on their claims.
A. Likelihood of Success on the Merits
1. Section 8
As originally enacted, section 8 prohibited a wide array of aliens from
attending public postsecondary educational institutions in Alabama. The first
sentence of that section prohibited enrollment of “[a]n alien who is not lawfully
present in the United States.” Ala. Code § 31-13-8. The second sentence,
however, expressly limited enrollment to aliens who “possess lawful permanent
residence or an appropriate nonimmigrant visa under 8 U.S.C. § 1101, et seq.” Id.The district court enjoined section 8 in its entirety on the ground that it constituted
an unconstitutional classification of aliens. Since that ruling, the Alabama
legislature has amended section 8 to remove the second sentence entirely, which
was understood to define lawful presence as requiring lawful permanent residence
or a nonimmigrant visa.
There is no doubt that “[t]he States enjoy no power with respect to the
classification of aliens.” Plyler v. Doe, 457 U.S. 202, 225, 102 S. Ct. 2382, 2399
(1982) (citing Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399 (1941)). In its
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complaint and briefs, HICA challenges the classification of—not the underlying
prohibition on—unlawfully present aliens who seek to attend an educational
postsecondary institution. Complaint at ¶¶ 217–220 (charging that section 8
“impermissibly discriminates between citizens and lawfully residing noncitizens,
and among groups of lawfully residing noncitizens”); Appellants’ Cross-
Appellees’ Reply/Response Br. at 48 (urging correctness of the district court’s
ruling on the merits that section 8 “creates an unlawful state classification of
aliens”). The complained-of sentence, which the district court concluded ran afoul
of federal law and Supreme Court precedent, see Plyler, 457 U.S. at 225, 102 S.
Ct. at 2399, has been removed by the state legislature. Because section 8 has been
“amended so as to remove its challenged feature[],” the HICA Plaintiffs’ claim for
injunctive relief has no basis in the present statute. Naturist Soc’y, Inc. v. Fillyaw,
958 F.2d 1515, 1520 (11th Cir. 1992). We therefore vacate the district court’s
injunction of section 8 as moot and remand for the dismissal of the challenge.
2. Sections 10(e), 11(e), and 13(h)
The HICA Plaintiffs claim that the final sentences of sections 10(e), 11(e),
and 13(h) violate the Compulsory Process Clause of the Sixth Amendment. We
need not reach the merits of this contention in light of our ruling in the United
States’s companion case that sections 10, 11(a), and 13(a) are preempted. The
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challenged provisions limiting the evidentiary presentation for violations of those
provisions will not be applied because the underlying criminal prohibitions are
unenforceable. We therefore vacate the district court’s injunction of these specific
sentences as moot.
3. Section 28
The HICA Plaintiffs challenge the district court’s threshold finding that
none of the individuals or organizations had standing to challenge section 28. We
agree with Plaintiffs that at least one organization has standing to challenge this
provision. We further conclude that the HICA Plaintiffs are likely to succeed on
their claim that section 28 violates the Equal Protection Clause.
a. Standing
“‘[A]n organization has standing to sue on its own behalf if the defendant’s
illegal acts impair its ability to engage in its projects by forcing the organization to
divert resources to counteract those illegal acts.’” Common Cause/Ga. v. Billups,
554 F.3d 1340, 1350 (11th Cir. 2009) (quoting Fla. State Conference of the
NAACP v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008)). In Common Cause,
we found that an organizational plaintiff suffered cognizable injury when it was
forced to “divert resources from its regular activities to educate and assist [affected
individuals] in complying with the [challenged] statute.” Id. Browning presented
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an injury similar to that in Common Cause, and we found organizational standing
proper in that case on the ground that the organizations “reasonably anticipate[d]
that they [would] have to divert personnel and time to educating volunteers and
[affected individuals] on compliance” with the statute’s requirements. 522 F.3d at1165–66.
Here, Plaintiff Alabama Appleseed Center for Law & Justice, Inc. has
claimed injuries analogous to those present in Common Cause and Browning.
John A. Pickens, the Executive Director of Alabama Appleseed, submitted
declarations to explain the manner in which H.B. 56, and particularly section 28,
has affected and will continue to affect his organization. Pickens declared that
many of the inquiries received by the organization were prompted by the passage
of H.B. 56 and related to the education provision at issue, including questions
about how to enroll children in school, whether children should be enrolled, how
schools will use the information collected, and whether parents will suffer
immigration consequences as a result of a child’s enrollment. In response to the
passage of H.B. 56, Alabama Appleseed has hosted presentations to convey
information about the consequences of the law, including its education provision.
Furthermore, the time and money expended on the planning and execution of these
events has forced the organization to divert resources from other immigration
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policy work. According to Pickens, these endeavors “will continue to be
detrimentally impacted” as they will have to be “substantially curtail[ed] or
stop[ped].” These alleged injuries are sufficient under our precedent to confer
standing on Alabama Appleseed.6 See Common Cause, 554 F.3d at 1350;
Browning, 522 F.3d at 1165–66.
b. Merits
Section 28 requires every public elementary and secondary school within
Alabama to determine upon enrollment whether the enrolling child “was born
outside the jurisdiction of the United States or is the child of an alien not lawfully
present in the United States.” Ala. Code § 31-13-27(a)(1). The school must make
this determination by examining the birth certificate the student has presented. Id.§ 31-13-27(a)(2). If the birth certificate reveals “that the student was born outside
the jurisdiction of the United States or is the child of an alien not lawfully present
in the United States,” or if the birth certificate is unavailable, then the child’s
guardian must within thirty days notify the school of the “actual citizenship or
immigration status of the student under federal law.” Id. § 31-13-27(a)(3); see
6
Because one plaintiff with standing is sufficient to permit our review of the
constitutionality of section 28, we proceed to address the merits without regard to the standing of
other individuals or organizations. See Florida v. U.S. Dep’t of Health & Human Servs., 648
F.3d 1235, 1243–44 (11th Cir. 2011), rev’d in part on other grounds, 567 U.S. ___, 132 S. Ct.
2566 (2012).
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also id. § 31-13-27(a)(4) (setting forth the notification procedure). If the
notification procedure laid out in the statute is not satisfied, then “the school
official shall presume for the purposes of reporting under this section that the
student is an alien unlawfully present in the United States.” Id. § 31-13-27(a)(5).
Public disclosure of information that identifies a student is prohibited “except for
purposes permitted pursuant to 8 U.S.C. §§ 1373 and 1644.” Id. § 31-13-27(e).
The Equal Protection Clause of the Fourteenth Amendment “direct[s] that
all persons similarly situated should be treated alike.” City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254 (1985).
Practically, though, “most legislation classifies for one purpose of another, with
resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S.
620, 631, 116 S. Ct. 1620, 1627 (1996). In light of this reality, certain statutory
classifications require more exacting scrutiny when the court reviews their
compatibility with the mandate of the Equal Protection Clause. See Cleburne
Living Ctr., 473 U.S. at 440–42, 105 S. Ct. at 3254–55 (summarizing
constitutionally protected classifications and providing the character of judicial
scrutiny to be applied on review).
Apart from certain classifications, the Supreme Court has recognized that
where a statute significantly interferes with the exercise of a protected right, it
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must also be reviewed under a similarly heightened level of scrutiny. See, e.g.,
Zablocki v. Redhail, 434 U.S. 374, 388, 98 S. Ct. 673, 682 (1978) (addressing
equal protection in the context of the right to marry); Mem’l Hosp. v. Maricopa
Cnty., 415 U.S. 250, 262 n.21, 94 S. Ct. 1076, 1084 (1974) (context of the right to
interstate travel); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626–28,
630, 89 S. Ct. 1886, 1889–90, 1891 (1969) (context of the right to vote); see also
Vacco v. Quill, 521 U.S. 793, 799, 117 S. Ct. 2293, 2298 (1997) (utilizing the
rational basis standard to review New York statutes governing the right to
physician-assisted suicide because they involved neither a protected right nor a
suspect classification).
Together, the specific interplay between the types of individuals affected by
the statute and the deprivation at issue may justify requiring a heightened level of
scrutiny to uphold the statute’s categorization. See Plyler, 457 U.S. at 223–24,
102 S. Ct. at 2398 (explaining that Texas’s law preventing unlawfully present
children from obtaining a free public education “can hardly be considered rational
unless it furthers some substantial goal of the State”); id. at 235, 102 S. Ct. at 2404(Blackmun, J., concurring); id. at 238, 102 S. Ct. at 2406 (Powell, J., concurring);
cf. Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 881, 110 S. Ct.
1595, 1601 (1990) (collecting cases to illustrate that statutes implicating a
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combination of protected rights are comparatively less likely to survive review);
Wisconsin v. Yoder, 406 U.S. 205, 223, 92 S. Ct. 1526, 1542 (1972) (“[W]hen the
interests of parenthood are combined with a free exercise claim of the nature
revealed by this record, more than merely a ‘reasonable relation to some purpose
within the competency of the State’ is required to sustain the validity of the State’s
requirement . . . .”).
The State Officials assert that heightened scrutiny is not warranted because
section 28 is only a means to collect data, which does not implicate any right
protected by the Equal Protection Clause.7 See, e.g., Morales v. Daley, 116 F.
Supp. 2d 801, 814–15 (S.D. Tex. 2000) (upholding the national census against a
Fifth Amendment equal protection challenge). This argument, though, does not
conclusively resolve the whole of the equal protection inquiry before us. Nor is it
enough to argue that, unlike the statute at issue in Plyler, section 28 does not by its
terms purport to deny an education to any child. Our duty, instead, is to analyze
whether section 28 operates in such a way that it “significantly interferes with the
7
We reject the argument that the Equal Protection Clause is not triggered by section 28’s
reporting requirement. “A violation of the equal protection clause may occur when a legislative
body enacts a law which ‘has a special impact on less than all the persons subject to its
jurisdiction.’” Price v. Tanner, 855 F.2d 820, 822 (11th Cir. 1988) (quoting New York City
Transit Auth. v. Beazer, 440 U.S. 568, 587–88, 99 S. Ct. 1355, 1367 (1979) (ellipsis omitted)).
A statute requiring children and their parents to reveal their immigration status upon enrollment
in school certainly has a “special impact” on a subset of Alabama’s population seeking to so
enroll.
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exercise of” the right to an elementary public education as guaranteed by Plyler.
Zablocki, 434 U.S. at 383, 98 S. Ct. at 679. We conclude that it does and, further,
find that no substantial state interest justifies the interference.
In Plyler the Supreme Court held that a Texas statute denying free public
education to undocumented children violated the Equal Protection Clause. 457
U.S. at 230, 102 S. Ct. at 2401–02. The Court addressed the constitutional
infirmities of the state’s refusal to reimburse local school boards for the
educational expenses of unlawfully present children as well as the requirement of
local school boards that those children pay a tuition fee in order to attend public
school. See id. at 215–16, 102 S. Ct. at 2394. In finding an equal protection
violation, the Court emphasized the blamelessness of the children who were
subject to the burden, see id. at 219–20, 102 S. Ct. at 2396, and underscored the
importance of providing education free of “unreasonable obstacles to advancement
on the basis of individual merit,” id. at 222, 102 S. Ct. at 2397. In light of the
“fundamental role” of education “in maintaining the fabric of our society,” id. at
221, 102 S. Ct. at 2397, the Court required a heightened justification—a
substantial interest of the state—in order to sustain the debilitating effects that a
lack of education can have on the specific community of individuals affected by
the law and the country as a whole, id. at 224, 102 S. Ct. at 2398.
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The Court analyzed four goals that could arguably legitimize the statute,
finding each insufficient to uphold the Texas law. First, the Court quickly
dismissed an interest in preservation of resources for the state’s lawful residents as
no more than “a concise expression of an intention to discriminate.” Id. at 227,
102 S. Ct. at 2400. The Court next explained that the goal of deterring illegal
immigration was not a sufficient goal to justify the law, recognizing that other
means would be much more effective at accomplishing that objective. Id. at
228–29, 102 S. Ct. at 2400–01 (“Charging tuition to undocumented children
constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,
at least when compared with the alternative of prohibiting the employment of
illegal aliens.” (quotation marks and alteration omitted)). Third, the Court
clarified that undocumented children did not so burden the provision of
educational resources as to require the statutory distinction from legally resident
alien children. See id. at 229, 102 S. Ct. at 2401. Finally, it dismissed any
distinction between documented and undocumented children in the context of
which students might put their education to productive use within the state’s
territorial boundaries, see id. at 229–30, 102 S. Ct. at 2401. The Court concluded
by questioning the use of a law that works to promote “the creation and
perpetuation of a subclass of illiterates,” which would “surely add[] to the
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problems and costs of unemployment, welfare, and crime.” Id. at 230, 102 S. Ct.
at 2402.
The State Officials differentiate Plyler on the ground that, by its terms,
section 28 affects every child who enrolls in school. It is true that the preliminary
requirement of showing a birth certificate applies equally to each child, but that
does not fully describe the operation of section 28. The “special impact”
challenged here is not an inability to show a birth certificate but the state-
mandated disclosure of the immigration status of the child (and possibly his or her
parents) upon enrollment. Other sections of H.B. 56 compel the conclusion that,
despite the characterization of the State Officials, section 28 targets the population
of undocumented school children in Alabama. For example, section 2 states that
one of the goals of the bill is “to accurately measure and assess the population of
students who are aliens not lawfully present in the United States.” Ala. Code
§ 31-13-2 (emphasis added). Clearly, the law contemplates no interest in the
birthplace of any child who is lawfully present, and the blanket requirement that
all students show a birth certificate is simply a necessary means by which section
28 forces unlawfully present aliens to divulge their unlawful status.
Under the terms of section 28, the parent or guardian of any student who (1)
is not lawfully present, (2) was born outside of the United States, or (3) cannot
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produce a birth certificate “shall notify the school . . . of the actual citizenship or
immigration status of the student under federal law.” Ala. Code § 31-13-27(a)(3)
(emphasis added). The form of this notification is also governed by statute and
requires official documentation (or a notarized recognition of the documentation)
in addition to a parental attestation under penalty of perjury verifying the identity
of the child in order to satisfy school officials of a student’s legal status. Id. § 31-
13-27(a)(4). Undocumented children, obviously, cannot produce the requisite
documentation to satisfy these criteria; likewise the failure to submit any required
notification documents means that the school “shall presume . . . that the student is
an alien unlawfully present in the United States.” Id. § 31-13-27(a)(5).
Consequently, section 28 operates to place undocumented children, and their
families, in an impossible dilemma: either admit your unlawful status outright or
concede it through silence. In either scenario, the relevant state database will
identify the student as an unlawfully present alien, even though that individual
may be a “child enjoying an inchoate federal permission to remain.” Plyler, 457
U.S. at 226, 102 S. Ct. at 2399.
Compared to the tuition requirement struck down in Plyler, section 28
imposes similar obstacles to the ability of an undocumented child to obtain an
education—it mandates disclosure of the child’s unlawful status as a prerequisite
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to enrollment in public school. This hurdle will understandably deter this
population from enrolling in and attending school because, as unlawfully present
aliens, “these children are subject to deportation,” and removal proceedings can be
instituted upon the federal government being informed of their undocumented
status. Id. Alabama learns of this status upon enrollment in school, and as fully
explained below, federal statutes prohibit Alabama from restricting the disclosure
of this information. See 8 U.S.C. §§ 1373, 1644. Moreover, revealing the illegal
status of children could lead to criminal prosecution, harassment, and
intimidation.8 See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1064–65 (9th Cir. 2004)
(concluding that revealing the immigration status of the plaintiffs could lead to
legal consequences and would likely deter them from exercising legal rights); Liu
v. Donna Karan Int’l, Inc., 207 F. Supp. 2d 191, 193 (S.D.N.Y. 2002). We are of
the mind that an increased likelihood of deportation or harassment upon
8
It is this reality that has led federal courts—including the district court here—to permit
the plaintiffs to proceed anonymously in immigration-related cases. See, e.g., Lozano v. City of
Hazelton, 620 F.3d 170, 194–95 (3d Cir. 2010), vacated, 131 S. Ct. 2958 (2011) (vacating for
further consideration in light of Chamber of Commerce of the United States v. Whiting, 563 U.S.
___, 131 S. Ct. 1968 (2011)); Does I thru XXIII v. Advanced Tile Corp., 214 F.3d 1058, 1069 &
n.11 (9th Cir. 2000); Ga. Latino Alliance for Human Rights v. Deal, No. 11-1804 (N.D. Ga. July
8, 2011) (order granting motion to proceed under pseudonyms); see also Doe v. Frank, 951 F.2d
320, 323–24 (11th Cir. 1992) (per curiam) (setting forth relevant factors to consideration of a
motion to proceed under a pseudonym). It is also relevant that the Supreme Court case to address
the rights of undocumented children in education, Plyler v. Doe, involved plaintiffs who were
allowed to proceed anonymously.
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enrollment in school significantly deters undocumented children from enrolling in
and attending school, in contravention of their rights under Plyler.9
The State Officials understandably counter that section 28 restricts the
dissemination of the private information of these children and their families, which
presumably would eliminate the risk of adverse immigration consequences. These
privacy restrictions, however, are wholly ineffectual in themselves. Section 28
limits the public disclosure of information “except for purposes permitted pursuant
to 8 U.S.C. §§ 1373 and 1644.” Ala. Code. § 31-13-27(e). Sections 1373 and
1644, in turn, require Alabama to provide immigration-related information to the
federal government and other states upon request and prohibit Alabama from
restricting this transfer of information.10 Any textual prohibition on revealing the
9
Nor are we alone in arriving at this conclusion. Indeed, the Civil Rights Division of the
Department of Justice has been conducting an investigation into the increased absentee rate of
undocumented children that occurred immediately after the passage of H.B. 56—a rate that
tripled. See Mary Orndorff, DOJ Looks at State School Records, Birmingham News, Nov. 5,
2011, at A1; Letter from Thomas E. Perez, Assistant Attorney General, to Dr. Thomas R. Bice,
State Superintendent of Education (May 1, 2012).
10
See 8 U.S.C. § 1373(a) (“Notwithstanding any other provision of Federal, State, or
local law, a Federal, State, or local government entity or official may not prohibit, or in any way
restrict, any government entity or official from sending to, or receiving from, the Immigration
and Naturalization Service information regarding the citizenship or immigration status, lawful or
unlawful, of any individual.”); id. § 1373(b)(3) (“Notwithstanding any other provision of Federal,
State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or
local government entity from . . . [e]xchanging such information with any other Federal, State, or
local government entity.”); id. § 1644 (“Notwithstanding any other provision of Federal, State, or
local law, no State or local government entity may be prohibited, or in any way restricted, from
sending to or receiving from the Immigration and Naturalization Service information regarding
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immigration status of the children and their families is of little comfort when
federal law requires that disclosure upon request. Consequently, the risks that
accompany revealing the illegal status of the school children is not mitigated by
the ineffectual privacy restrictions of section 28.
Having concluded that section 28 substantially burdens the rights secured
by Plyler, we may only uphold it if the provision “furthers some substantial state
interest.” 457 U.S. at 230, 102 S. Ct. at 2402. We note initially that, as the HICA
Plaintiffs point out, the State Officials have only attempted to defend section 28
under the rational basis standard. This alone is sufficient to allow us to conclude
that section 28 cannot be upheld because under heightened scrutiny, it is the state
that bears the burden of demonstrating that the measure is constitutional. See, e.g.,
Mem’l Hosp., 415 U.S. at 262–63, 94 S. Ct. at 1084.
Even assuming that the various justifications offered by the State Officials
are advanced in an attempt to survive heightened scrutiny, we find none to be
convincing. First, the State Officials justify section 28 with the school-related
legislative findings of H.B. 56. See Ala. Code § 31-13-2. The State Officials cite
to the desire to collect data about “the costs incurred by school districts” to
educate unlawfully present children in order “to accurately measure and assess”
the immigration status, lawful or unlawful, of an alien in the United States.”).
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the undocumented student population and “to forecast and plan for any impact”
that their presence may have on the state’s public-education program. Id. The
briefing of the State Officials in the companion case, No. 11-14532, concedes that
section 28 “is . . . unlikely to yield particularly precise data,” thereby recognizing
that the stated legislative purpose will probably not be effectuated by the data-
collection provision.11 Corrected Response Brief for Appellees at 53. Along those
lines, it is difficult to fathom how admittedly inaccurate data would be used to
forecast the needs and plan for impact of populations of undocumented school
children, especially given that the population of interest cannot be denied a free
public elementary or secondary education in the first place. See Plyler, 457 U.S.
at 228–29, 102 S. Ct. at 2401. Aside from that, the State Officials have not
suggested that the relevant data could not be obtained in any other way. The
conclusion that Section 28 “unnecessarily impinge[s]” upon the children’s rights
11
The State Officials also argue that, “[t]o the extent that the count [s]ection 28 generates
is not precise, that is only because the statute goes out of its way not to force parents or their
students to release immigration-status information if they choose not to do so.” Hispanic Interest
Coal. of Ala., Nos. 11-14535, 11-14675, Response Brief for Appellees at 58. We find this
humanitarian justification implausible, given the mandatory language of section 28 that each
school shall determine the immigration status of each student, that each parent shall inform the
school of the child’s status, and that each school shall label the student as unlawfully present in
the event no paperwork is provided. The position of the State Officials is further undermined by
section 6, which requires maximum enforcement of H.B. 56. Specifically, section 6 forbids state
actors from restricting the enforcement of H.B. 56 “to less than the full extent permitted” therein,
Ala. Code § 31-13-6(a), and provides for civil penalties in the event the law is not enforced to the
maximum extent, id. § 31-13-6(d). See also id. § 31-13-6(f) (imposing a duty on all public
employees to report violations of H.B. 56).
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under Plyler is thus inescapable. Zablocki, 434 U.S. at 388, 98 S. Ct. at 682.
The State Officials posit additional justifications at a general level,
supposing that the data could be used to defend “litigation in which the costs of
illegal immigration are at issue” or to “enlighten the public about the impacts of
illegal immigration.” Although those might be legitimate state interests, the means
chosen by Alabama “unnecessarily burden[s]” the children’s right to a basic
education. Mem’l Hosp., 415 U.S. at 263, 94 S. Ct. at 1084. Again, the State
Officials concede that the data collected through section 28 is inaccurate, and they
have not otherwise suggested that the relevant data cannot be obtained in other
ways. In short, we do not find these justifications, which fit into the general
category of “because we want to know,” substantial enough to justify the
significant interference with the children’s right to education under Plyler. We
therefore conclude that section 28 violates the Equal Protection Clause.
B. Equitable Factors
The equities favor enjoining the operation of section 28. As explained
above, that provision imposes a substantial burden on the right of undocumented
school children to receive an education. Alabama has no interest in enforcing a
state law that is unconstitutional, and the interference with the educational rights
of undocumented children is not a harm that can be compensated by monetary
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damages. See Scott v. Roberts, 612 F.3d 1279, 1295 (11th Cir. 2010) (“An injury
is irreparable ‘if it cannot be undone through monetary remedies.’” (quoting
Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987))). In Plyler, the
Supreme Court distinguished education as essential to maintaining “the fabric of
our society” and noted “the lasting impact of its deprivation on the life of the
child.” 457 U.S. at 221, 102 S. Ct. at 2396, 2397. Given the important role of
education in our society, and the injuries that would arise from deterring
unlawfully present children from seeking the benefit of education, we conclude
that the equities favor enjoining this provision.
III. Conclusion
Because we have found that the United States is likely to succeed on its
claims that sections 10 and 27 are preempted, we dismiss the HICA Plaintiffs’
appeal as to those sections as moot. We vacate as moot the district court’s
injunction of section 8 and remand for the dismissal of the challenge to that
section, as the statutory amendment has removed the challenged language. In light
of our decision on the substantive provisions of sections 10, 11, and 13, we vacate
as moot the district court’s order insofar as it preliminarily enjoins the last
sentence of sections 10(e), 11(e), and 13(h). We find that at least one of the HICA
Plaintiffs has standing to challenge section 28 and that section 28 violates the
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Equal Protection Clause. We therefore reverse the district court’s decision and
remand for the entry of a preliminary injunction. Finally, we conclude, for the
reasons stated in the United States’s companion case, Nos. 11-14532, 11-14674,
that the HICA Plaintiffs cannot succeed on the merits of their facial challenge to
sections 12, 18, and 30 at this time.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART,
DISMISSED IN PART, AND REMANDED.
27