PHOENIX -- State lawmakers voted Wednesday to force public schools to count how many students are in this country illegally, the first step toward challenging federal law which requires schools to educate all, legal and otherwise.
Officially, Sen. Russell Pearce, R-Mesa, said SB 1097, approved on a 5-2 margin by the Senate Committee on Education Accountability and Reform, is simply a fact-finding mission. He said there are lots of guesses but no actual data on how many of the approximately one million students in Arizona schools are neither U.S. citizens nor legal residents.
And his legislation would require the Department of Education to compute the cost to the state.
"Don't you think the taxpayer has a right to know who they're paying for?' Pearce asked.
He acknowledged, though, the ultimate goal is more than just numbers.
A 1982 U.S. Supreme Court ruling requires public schools to educate all children who live within the district, without charge, regardless of whether they are in this country legally or not. Pearce said one of the reasons the high court decided against the state of Texas it that way was because there was no evidence of the cost to the public.
This study, said Pearce, will provide the data -- and a basis for Arizona to ask the high court to reconsider its decision and let states exclude illegal immigrants.
That's presuming it gets that far.
Dan Pochoda, legal director of the Arizona chapter of the American Civil Liberties Union, said he believes Pearce's legislation itself is illegal.
Pochoda said the 1982 ruling does not, by itself, preclude schools asking students to produce documentation. But he said just asking has the same practical effect as an ban on illegal immigrants in schools.
"The impact of it will be to deter people from sending their kids to school who have every right to be there,' Pochoda said, even in cases where the child is a U.S. citizen but the parents are not.
"There's no doubt that it will cause fear in the minds of the families,' he said. "And some people will not attend school who are legally entitled to.'
That, he said, makes SB 1097 an illegal end-run around the Supreme Court ruling. Pochoda said if the bill becomes law his organization will sue.
Pearce, however, said is willing to take that risk for a chance to get Arizona -- and other states -- out from under that 1982 ruling.
In that case, the justices overturned a Texas law that denied state aid to educate any child not in this country legally. That law also gave local districts who would not be getting aid the right -- but not the obligation -- to refuse to enroll those students.
Justice William Brennan, writing the decision, said Texas officials argued they were justified in excluding illegal immigrants because of the "special burden' they placed on the state's ability to provide a high-quality education.
But he said the record -- at least in that case -- "in no way supports the claim that the exclusion of undocumented children is likely to improve the overall quality of education in the state.'
The Pew Hispanic Center estimated several years ago that anywhere from 60,000 to 65,000 of youngsters in Arizona schools are not legal residents, figures that translate to about $650 million a year in state aid and local taxes. Pearce said those numbers are low, suggesting the cost to taxpayers is at least $800 million a year -- and perhaps as high a $1.5 billion.
But just showing costs might not convince the high court to reverse course.
In the ruling, Brennan said a case might be made for denying benefits to people who purposely break the law. But he said the Texas law penalized children "who are present in this country through no fault of their own.'
Pearce, however, said that argument has "no basis in law.'
Mike Smith, lobbyist for the Arizona School Administrators Association, said the measure will create problems for schools. He said the legislation does not specify what documentation they need to decide whether to count a student as a legal resident or not.
Sen. Sylvia Allen, R-Snowflake, scoffed at that complaint. She said schools gather information from parents all the time, including the requirement for youngsters enrolling in school to provide a birth certificate to show their age.
Smith said even if the birth certificate qualifies, this measure creates a logistical nightmare. It would require schools to get that data from every student each year, though Pearce said once they have it from a specific child that should suffice for the rest of the time they remain in the same district.
Sen. John Huppenthal, R-Chandler, said the legislation may have to be modified to phase it in slowly, starting with youngsters just entering kindergarten or first grade.
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