State legislators who swear to uphold the Constitution are actually attempting to violate it

Perhaps you've noticed Arizona state Sen. Russell Pearce's jihad against undocumented immigrants. The perpetually cranky Maricopa County crusader introduces a raft of retributive legislation in the Arizona Legislature each year in an attempt to drive out, or at least harass and demonize, undocumented immigrants.

This year, his shotgun approach includes a bill targeting the children of people who are in this country illegally. SB 1097—along with HB 2382, a companion bill in the House—would force public schools to collect data on the immigration status of all students and then provide it to the state.

Besides being a "logistical nightmare" for an already budget-starved public school system, as the Arizona School Administrators Association has pointed out, Pearce's bill is also blatantly unconstitutional. The U.S. Supreme Court ruled in its 1982 Plyler v. Doe decision that public schools must provide a free education to all children who live within their districts, regardless of immigration status. The court held that the attempt by Texas public schools to deny educational benefits to undocumented children was a violation of the equal protection clause of the 14th Amendment of the U.S. Constitution, in that such children are human beings "in any ordinary sense of the term" and must be treated the same as any other children.

But SB 1097 is no ordinary bill. In fact, it has an ulterior purpose, one that Pearce readily admits: The bill is essentially a fishing expedition to dredge up data that can be used to calculate the cost of educating such children in order to provide fodder for a legal effort to overturn the Plyler decision. The American Civil Liberties Union, which has said it will sue if the bill becomes law, maintains that its true effect would be to deter undocumented children from attending public schools, despite their constitutional right to do so, which obviously dovetails nicely with Pearce's underlying agenda.

I called my friend Jennifer Allen at the Border Action Network, an organization that watchdogs the corrosive legislative shenanigans of ideologues such as Pearce. She said that Pearce's calculations ignore the multi-billion-dollar benefits that undocumented immigrants provide to Arizona's economy and in tax revenues. She also pointed out that a significant amount of federal money going to Arizona's schools could be denied if children were effectively deterred from attending public school through Pearce's proposal.

"These legislators swore an oath to uphold the Constitution, and now they're voting for these bills knowing full well that they are illegal and will jeopardize federal funding," Allen said.

Maybe you are aware of the details of Pearce's legislative gambits, and you think that illegal, unworkable and incredibly expensive laws are a good idea. Or maybe you just support him on principle. In any event, I would ask you to consider another principle, that of fair play. Last fall, Judge Linda Yañez visited Tucson for a forum on this subject. She is a federal judge on the 13th Court of Appeals in Texas, but decades ago, she was the lead attorney on the original case that led to the Plyler v. Doe decision. She pointed out that the court clearly distinguished between denying benefits to people who purposely break the law and punishing children "who are present in this country through no fault of their own."

On April 7, the Loft Cinema will screen Papers, a documentary that explores the plight of some 65,000 undocumented students who successfully graduate high school in this country every year, only to find themselves in a legal no-man's land, and in some cases, deported. Aside from the utter foolishness of jettisoning years of educational investment before it can produce a return in terms of productive labor, the truth is that these kids have had to work harder than the average student to overcome cultural barriers, discrimination and the political stink cloud that accompanies their status. They are Americans, and I daresay that they appreciate American values and opportunities far more than narrow-minded legislators who would shred the Constitution just to visit revenge upon these students for the actions of their parents.

After her presentation, I asked Yañez about the role of racism. She acknowledged that it always plays some role in these issues, but offered her hopeful belief that "social-justice issues move more quickly within society than within law."

When it comes to the lawmaking activities of Pearce and the Arizona Legislature, social justice—not to mention common sense—is not just moving slowly; it's moving in the wrong direction.

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