Each year, over 65.000 students graduate from American high schools. However, these students, regardless of their grades, cannot join colleges or work in the military just because they are first grade immigrants. Culturally, these students are Americans because there is very little they share with the country of birth of their parents (Immigration Policy Center, 2011).
These students are bi-cultured and are quite often very fluent in English. Most of these children only get to know that they are undocumented immigrants at the time when they apply for the driver’s license.
This is the time when it dawns on them that they lack social security numbers and other requisite documents that are needed during application for either driving license or a college entry. Many of the undocumented children are discouraged from applying to college and only 5-10% of them apply to join colleges.
This research paper seeks to discuss policies regarding undocumented children in the United States focusing on education. The research paper will describe and analyze policies that touch on undocumented children including the policies’ social and political history. The research will bring into focus how the policies impact undocumented children and their individual families.
Description and analysis of the policy on undocumented children
In 1994, Proposition 187 was initiated in California to limit immigrants from accessing public services including education, health care services, and welfare benefits. This was specifically targeted on undocumented children. This proposition was passed by a large margin of the electorate (Petronicolos and New, 1999).
The courts however immediately blocked enforcement of the statutes. It was until 1997 that the Federal District Court found the provisions of Proposition 187 unconstitutional. Proposition 187 negatively affected Latino children who got embroiled in culture wars (Lopez, 2005).
These children had to remain hostages of immigration crisis. Proposition 209, which was a voter initiative sought to exclude undocumented children from taking part in certain activities like public education. At this point in time, complex issues that touched on the youths legal and human rights became subject of cost-benefit analysis.
During these debates, issues related to tax burden and crime was raised to the consternation of everyone. Conservatives were bent on excluding undocumented children from public schools, a move that liberals opposed. However, the explanations from both sides seemed to be based on mental state of emergency where reflection and sustained reasoning were never given chance to flourish.
Therefore, cultural prejudice and legitimacy of economic self-interest carried the day. It therefore became a presumption that undocumented children should have no right at all or plainly put, had no right, leave alone the right to attend public schools. The court ruling declared Proposition 187 unconstitutional. Gallegly Amendment (H.R. 1377) that would have made Proposition 187 a federal law was dropped under presidential veto.
The congress in 1996 passed Immigration in the National Interest Act. It was the House of Representatives that passed the Amendment sponsored by Elton Gallegly on March 20th 1996. The Amendment later became popular as Gallegly Amendment. However, all these developments have to date not guaranteed undocumented children their civil and constitutional rights.
Legislations that have been initiated in the recent past that emphasize self-sufficiency, limits immigrants access to welfare benefits. In fact, they are discouraged from seeking social benefits even if they stand to qualify. Supreme Court has not helped the course of immigrants and undocumented children because they remain ambivalent about status of education.
Other than California, Texas also had laws that touched on undocumented school-aged children access to free public education. Texas allowed United States citizens and legally admitted aliens to access free public education. This can be confirmed in Plyler v. Doe (1982) when Justice Brennan held that illegal aliens also enjoy the benefits of equal protection clause.
The judge of the Supreme Court also held that if Texas were to deny certain group of children access to free public education that other children residing within the borders of Texas were enjoying, then this had to be justified by the state by showing that it furthered some substantial state interest.
The pretext of saving that was alluded to by Texas state officials as the reason for denying undocumented children access to education was dismissed by Justice Brennan who held that they were so insubstantial in light of the costs involved to these children, the state and the nation.
The 14th Amendment held that denying some persons educational opportunities on racial basis is an invidious and irrational bias that amount to suspicious classification (Hogan and Hartson, 2009). In the ruling, the court adduced that denying one education subjects them to inestimable toll on social, economic, intellectual, and psychological well being.
The court further reiterated that by denying these children access to education, a lifetime hardship was being imposed on them. The court declared the discrimination irrational because it did not further substantial goal of the state (Petronicolos and New, 1999).
Marshall maintained that an individual interest in education is fundamental and denial of public education based on class goes against the grains of Equal Protection Clause as set out in the Fourteenth Amendment. Justice Brennan in Plyler opined that aliens of undocumented or illegal immigration status do not belong to ‘suspect class’ hence do not deserve extraordinary protection from majoritarian political process.
This was far from the truth because aliens with undocumented status have over time been repeatedly abused, physically and psychologically, by the members of the majoritarian political process. Brennan is sympathetic about the plight of undocumented children with regard to education but fails to understand why the state has to protect them.
Brennan in his dissenting ruling tries to address issues that touch on efficient means of achieving specific societal and political goals like fiscal health and public order. He, however, fails to address issues that touch on person’s interest in educational opportunity or the classification employed to limit these opportunities.
This becomes apparent when Brennan states that exercise of congressional power stands to affect the prerogatives of the state to afford differential treatment to particulate class of aliens.
He is categorical that with regard to special constitutional sensitivity that the Plyler case presented and in absence of contrary indication fairly discernible in the present legislative record, there is no national policy that supports the state in denying undocumented children their elementary education (Petronicolos and New, 1999).
In 2002, No Child Left Behind (NCLB) Act was implemented. With the Act, the schools had to be accountable for the academic performance of limited English speaking children and the immigrant children. The Act literally changed the profile of the nation’s elementary and secondary student population.
With the Act, the schools had to report assessment results for immigrant and undocumented children. Schools were moreover accountable for the betterment of the performance of these children. Schools that after some long period of time did not sufficiently improve the performance of these protected groups of students were subject to interventions.
If the conditions fail to improve, the government is under obligation to close such schools. The Act also obligated schools where immigrant students and undocumented children learned to measure and improve their English proficiency. In fact, there is a provision in law that supports states and school districts creation of new assessment of English proficiency (Capps et al., n.d).
How existing policies affect undocumented children access to education
Statistics indicate that unauthorized immigrants make up almost 25% of all immigrants in the United States. However, this reasonable percentage has never ceased to be at the heart of policy impasse. Their children have become subject of unrecognized development consequences because the parents are perceived to exist in the shadow of law.
Despite the fact that these youths consider themselves Americans in spirits and voice, they are nonetheless illegal in the eyes of the law. Undocumented children status is at times derogatively called ‘illegal’ without regard to the fact that they had no hand in determining where they were to be born.
This was purely, their parent’s decision. The term undocumented is at times blanketly applied even if some immigrants have some form of documentation but quite often find themselves in a long wait for pending formal legal outcome. The September 11th terrorist attack in the U.S. compounded the problems faced by the legal and illegal immigrants and their children (Suarez-Orozco et al., 2011).
The Visa application process has become so protracted. Children of legal immigrants who lose their jobs, consequently lose their visas and the right to stay in the United States. Regularization process that is followed for one to become a legal immigrant is long and torturous. This sometimes discourages some parents from taking their children for documentation.
The process entails too much bureaucracy and higher rates of denial. Children born after their parents have stayed in the U.S. for more than two years have to wait up to when they are adults to undergo regularization process. The parents of these children meanwhile remain under threat of deportation.
Undocumented status normally subject children to labyrinth of liminality that interferes with their stages of development in myriad ways. These children grow up without shared bundles of rights and obligations that structure a person’s social behavior.
Another problem that undocumented children have to contend with is getting enrolled in under-resourced schools that are highly segregated. There are limited engaging opportunities in these institutions. Because of the long regularization process, parents normally attempt to regularize themselves before bringing their children. These children have to stay away from their parents.
Latino children, regardless of the Plyler v. Doe ruling, face a lot of challenges with regard to their educational prospects (Suarez-Orozco et al., 2011). The education that the Latino children receive only helps in their personal growth and not for the betterment of overall conditions of the Latinos in the United States since they are banished from participating in democratic processes (Lopez, 2005).
The Californian Proposition 187 and Gallegly Amendment could have sealed the fate of Undocumented children access to free public schools had it not been for the intervention of President Bill Clinton who vetoed it. The majority ruling in Plyler v. Doe that invoked provisions of the Fourteenth Amendment also brought some glimmer of hope to the undocumented children with regard to their education.
However, the Plyler majority ruling has not been very significant as undocumented children across the United States, including the Latino’s in California still suffer the consequences of Proposition 187. The future of undocumented children however, seems bright in the perspective of the inception of Dream Act.
Capps, R., Fix, M., Murray J., Ost, J., and Passel, J.S. (n.d). The New Demography of America’s Schools: Immigration and the No Child Left Behind Act. Washington: The Urban Institute.
Hogan and Hartson, (2009). Legal Issues for School Districts Related to the Education of Undocumented Children. Washington: National School Boards Association.
Immigration Policy Center. (2011). The Dream Act: Creating Opportunities for immigrant students and Supporting the U.S. Economy. Washington: Immigration Policy Center.
Lopez, M.P. (2005). Reflections on Educating Latino and Latina Undocumented Children: Beyond Plyler v. Doe. Seton Hall Law Review, 35(1373).
Petronicolos, L., and New, W.S. (1999). Anti-Immigrant Legislation, Social Justice, and the Right to Equal Educational Opportunity. American Educational Research Journal, 36(3), 373-408.
Suarez-Orozco, C., Yoshikawa, H., Teranishi, R.T., and Suarez-Orozco, M.M. (2011). Growing up in the Shadows: The development implications of Unauthorized Status. Harvard Educational Review, 81(3).
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