BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 132
Assemblymember Mendoza
As Amended May 28, 2009
Hearing Date: July 7, 2009
Education Code
KB:jd
SUBJECT
School Safety: Immigration Investigations
DESCRIPTION
This bill, sponsored by the California Teachers Association,
would declare that it is the policy of the state that
immigrantion agents should not interfere with the education of
students in the State of California, prohibit the collection of
information or documents about immigrant status, except as
required by federal or state law, and encourage schools to take
specified actions in relation to pupils affected by immigration
enforcement activities.
This bill was approved by the Senate Education Committee on June
17, 2009.
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
There have been a growing number of reports of immigration raids
taking place across the state disrupting the surrounding
communities and schools. In 2007, U.S. Immigration and Customs
Enforcement (ICE) federal agents raided the town of Mendota in
Fresno County under "Operation Return to Sender" targeting
individuals with deportation orders, and arresting an estimated
200 people.
That same year, a six-year-old U.S. citizen, Kebin Reyes, and
(more)
AB 132 (Mendoza)
Page 2 of ?
his father were apprehended at their San Rafael home and kept in
detention for 10 hours. The American Civil Liberties Union
(ACLU) filed a lawsuit on the child's behalf. In a 2007 press
release, staff attorney Julia Harumi Mass with the ACLU of
Northern California, said, "ICE's treatment of children is not
in line with American values of decency and fairness. In
addition to Kebin's case, we have heard reports of children left
without care after their parents are detained, immigration
agents targeting areas around elementary schools, and children
too upset to participate in class after witnessing early morning
raids in their communities. The human cost of these tactics is
unacceptable." The ACLU reported similar raids in Marin, Contra
Costa County, San Francisco, Redwood City, Van Nuys, and Santa
Cruz. Immigration raids near schools in Berkeley and Oakland
have also sent waves of panic through the communities leaving
school and local elected officials with the task of alleviating
fear in school children that they or their family members would
be detained.
In a letter to Congresswoman Lynn Woolsey, the Board of
Education of the San Rafael City Schools, wrote: "The ICE raids
sent our schools into a state of emergency. Teachers, support
staff, principals, and district administrators were placed on
buses and at bus stops to make sure children connected safely
with adults in their homes ... Absentee numbers spiked as high
as seven times the usual amount in one school and four times the
normal rate at another school. Parents were afraid to walk with
their children to and from the bus stops. Older siblings
skipped sports, work and homework to tend to their brothers and
sisters. Many students were and remain distracted from school
work as they worry about their loved ones."
This bill seeks to help ameliorate the effects on public school
students from immigration raids by federal agents by
establishing a clear state policy that immigration agents should
not interfere with the education of students in the State of
California, prohibit the collection of information or documents
about immigrant status, except as required by federal law, and
encourage schools to take specified actions in relation to
pupils affected by immigration enforcement activities.
CHANGES TO EXISTING LAW
Existing constitutional law states that no state shall deprive
any person, life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal
AB 132 (Mendoza)
Page 3 of ?
protection of the law. (U.S. Const., 14 Amend.; Cal. Const.,
art. I, sec. 7.)
Existing state law states that the Legislature recognizes that
all pupils enrolled in the state public schools have the
inalienable right to attend classes on campuses that are safe,
secure, and peaceful. The Legislature also recognizes that
pupils cannot fully benefit from an educational program unless
they attend school on a regular basis. (Ed. Code Sec. 32261.)
This bill would declare that it is the policy of the State of
California that immigration agents should not interfere with the
education of pupils in school.
This bill would provide that nothing in the bill's provisions
may be construed to impede or restrict any lawful authority of
immigration agents.
This bill would prohibit schools from collecting information or
documents or inquiring about the immigration status of pupils or
their family members, except as required by federal or state
law.
This bill would encourage a school to comply with specified
actions in the event an employee is aware that a pupil's parent
or guardian is not available to care for the pupil.
This bill would encourage schools to provide appropriate
counseling for pupils who may be affected by the enforcement
activities of immigration agents.
COMMENT
1. Stated need for the bill
The sponsor writes:
Immigration raids occur unpredictably, and while schools
cannot know when they will occur, they should not ignore the
effects on students. Word of these raids spreads quickly
among children, and if instruction is to continue as normally
as possible, schools must address what has happened.
By their nature, raids by Immigration and Customs Enforcement
are disruptive. In San Rafael, as a father walked his
daughter to school, he was detained by an agent after his
AB 132 (Mendoza)
Page 4 of ?
daughter interpreted between them. Another child was told by
her mother to pack essentials in her backpack and leave it by
the door in case she discovered after school that her mother
was taken away.
In such instances, few students will be attentive in class.
AB 132 specifies that it does not attempt to undermine the
enforcement of federal law, but instead helps ensure that all
children can still have a protective learning environment at
school after a raid.
2. Plyler v. Doe: Ensuring equal protection in our schools
In Plyler v. Doe, (1982) 457 U.S. 202, the U.S. Supreme Court
considered the constitutionality of a Texas statute which
withheld state funds from local school districts for the
education of children who were not "legally admitted" into the
United States, and authorized school districts to deny
enrollment in their public schools to such children.
The Court held that the Equal Protection Clause of the
Fourteenth Amendment prohibits a state from denying "to
undocumented school-age children the free public education that
it provides to children who are citizens of the United States or
legally admitted aliens." (Id. at 205.) The Court rejected
each of the state's proffered justifications for denying
education to undocumented children, including the state's
asserted interest in the preservation of its limited resources
for the education of its lawful residents, as constitutionally
insufficient to deny children access to a basic education. (Id.
at 226-230.) Accordingly, public schools may not deny admission
to a student on the basis of immigration status, engage in
practices that hinder the right of access to a public education,
or make inquiries of students or their parents that disclose
immigration status. (See also League of United Latin American
Citizens v. Wilson, (1995) 908 F. Supp. 755, 785-786 (holding
that the sections of Proposition 187 which denied a public
education based on the immigration status of the child or the
child's parent or guardian conflicts with and is preempted by
federal law as announced by the Supreme Court in Plyler).)
Since 1993, ICE, formerly called the Immigration and
Naturalization Service, has had a policy to "attempt to avoid
apprehension of persons and to tightly control investigative
operations on the premises of schools, places of worship,
funerals and other religious ceremonies." Following the 2007
AB 132 (Mendoza)
Page 5 of ?
ACLU lawsuit, ICE issued a memorandum with guidelines that
directed agents not to take legal permanent residents or U.S.
citizen minor children into custody; to coordinate the transfer
of a minor child to the nearest child welfare authority or local
law enforcement agency (if not feasible, then document the
parent's request for the transfer of the child to a third
party); and to the greatest extent possible, coordinate with
child welfare authorities prior to an enforcement operation.
However, these are only guidelines, and are not binding.
Furthermore, concerns have been expressed that there is no
mechanism to hold ICE accountable for compliance.
According to the National Council of La Raza (NCLR) there is
growing alarm in the community that ICE engages in intimidation
and enforcement tactics near public schools and Head Start
programs. Head Start staff in other states has reported
sightings of federal agents parked near migrant Head Start
centers during drop-off and pick up times. Parents become
fearful of leaving their homes to take children to school or to
child care centers. In other incidences in other states, NCLR
reports of ICE agents removing children from schools following
arrests of their parents.
The right to a public education in California is a fundamental
right fully guaranteed and protected by the California
Constitution. (Serrano v. Priest, (1971) 5 Cal.3d 584
(superseded on other grounds).) If ICE raids are going to
continue taking place in our communities, it is imperative for
the state to take affirmative steps to minimize the impact on
schools and ensure that children are not denied their
fundamental right to an education. This bill would establish a
uniform policy for schools to follow in the event they are
confronted with an ICE raid, and would encourage schools to take
appropriate steps to ensure that students are cared for and
receive counseling should their lives be disrupted by
immigration enforcement activities.
This bill would also prohibit schools from collecting
information or documents or inquiring about the immigration
status of pupils or their family members, except as required by
federal law. A school's unwarranted inquires as to a pupil's
immigration status could arguably hinder a student's access to
education as parents could start keeping their children from
school out of fear of being reported to immigration authorities.
This bill would arguably ensure that schools focus on their
legal responsibility to provide each child with a public
AB 132 (Mendoza)
Page 6 of ?
education, and not on conducting potentially intrusive and
chilling inquiries as to a student's immigration status. This
is consistent with existing law which prohibits such inquiries
in the emergency assistance and public benefits contexts
regarding matters not essential to the administration of such
programs. (See Gov. Code Sec. 8596(c); Welf. & Inst. Code Secs.
10500, 14005.37(g).)
Further, it is important to note that AB 132 would not interfere
with or impede any lawful activities or authority of federal
immigration agents. In addition, it would not interfere with
any current state data collection efforts where such data is
required by federal law. Rather, AB 132 would reaffirm the
state's commitment to providing public education to all
children, establish uniform procedures, and arguably help to
minimize the disruptive effects of immigration enforcement
activities in our schools. This is both consistent with the
principles articulated in Plyler, and with the state
constitutional guarantee to a public education.
3. Amendments
In order to make it clear that this bill would not interfere
with legitimate state data collection efforts, the author has
offered the following amendment:
On page 2, line 16, after "federal" insert "or state"
This committee may also wish to consider whether this bill
should be amended to clarify that the prohibition on data
collection applies to school officials and employees, instead of
just "schools." This would ensure that employees at all levels
would not be permitted to undertake improper inquiries as to the
immigration status of pupils and their families. The suggested
amendment would be as follows:
On page 2, line 17, strike "schools" and insert "school
officials and employees"
Support : American Civil Liberties Union; San Francisco Unified
School District; Antioch Unified School District; American
Federation of State, County and Municipal Employees, ALF-CIO;
California Catholic Conference; International Institute of the
Bay Area; California Immigrant Policy Center; Californians
Together; California Rural Legal Assistance Foundation;
AB 132 (Mendoza)
Page 7 of ?
California Communities United Institute; Hispanic Association of
Colleges and Universities; two individuals
Opposition : Capitol Resource Family Impact
HISTORY
Source : California Teachers Association
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Education Committee (Ayes 8, Noes 3)
Assembly Floor (Ayes 50, Noes 28)
Senate Education Committee (Ayes 5, Noes 2)
**************