November 30, 2011
Sins of the Parents—A Commentary by Linda Greenhouse ’78 MSL
The following commentary was posted on newyorktimes.com on November 30, 2011.
Sins of the Parents
By Linda Greenhouse ’78 MSL
In the current race to the bottom to see which state can provide the most degraded and dehumanizing environment for undocumented immigrants, Arizona and Alabama have grabbed the headlines. But largely unnoticed, it is Florida, home to nearly one million Cuban refugees and their descendants, that has come up with perhaps the most bizarre and pointless anti-immigrant policy of all.
Beginning last year, the state’s higher education authorities have been treating American citizens born in the United States, including graduates of Florida high schools who have spent their entire lives in the state, as non-residents for tuition purposes if they can’t demonstrate that their parents are in the country legally.
Yes, you read that correctly – although when I first came upon a description of the policy a few weeks ago, I was sure that I had misunderstood something. It’s a basic tenet of equal protection law that the government can’t single out citizens for disfavored treatment without a good reason. The Supreme Court is serious about this, even ruling unanimously a decade ago that an Illinois village violated an individual homeowner’s 14th Amendment right to equal protection by demanding from her a bigger easement than it required of her neighbors as the price of connecting her home to the municipal water supply.
A few feet of land more or less may not have made a life-changing difference to the plaintiff in that case. But consider the difference between in-state and non-resident tuition at the University of Florida: $5,700 a year versus $27,936. The disparity is similar at the state’s community colleges, although the price tags are lower. It is the difference between a college education and none.
It seems grossly unfair, as the Supreme Court acknowledged 30 years ago in Plyler v. Doe when it held that Texas could not deprive undocumented children of a free public K-through-12 education, to blame children for the wrongdoing of their parents. Unfair and, as Justice Lewis F. Powell Jr. observed in his concurring opinion, socially self-destructive, in creating a permanent underclass of uneducated people. (Alabama has observed the formalities of the Plyler opinion by simply trying to frighten undocumented parents into keeping their children out of school; if the decision were not on the books, that state would undoubtedly have shut the schoolhouse doors by now.)
The Supreme Court has never extended the Plyler opinion to give undocumented children rights to higher education. Alabama bars them entirely from its public universities and colleges, as does South Carolina. Other states permit them to enroll while denying the in-state tuition break, while a dozen states, including – famously—Texas, treat them as residents, entitled to in-state tuition rates.
That policy debate is ongoing, but the Florida situation is something deeper and uglier. Its victims are, after all, American citizens, as fully American as Rick Scott, Florida’s scary governor, who said last month that the state’s universities should focus on practical subjects that create jobs rather than on the study of such subjects as political science, psychology, or anthropology. (“We don’t need them here,” Governor Scott said of anthropologists. University students in Florida are circulating petitions to have the governor’s name kept off their diplomas.)
The students who filed a lawsuit last month challenging the policy are as American as Senator Lindsey Graham, the South Carolina Republican who is leading a campaign to amend the Constitution. He and his allies would repeal, for the children of undocumented immigrants, the 14th Amendment’s grant of “birthright citizenship” (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside”). The Florida policy – it’s not even a statute, but simply an interpretive rule adopted by the state’s Board of Education and its University System, taking many college administrators and enrolled students by surprise – amounts to repeal of birthright citizenship by regulation.
“Corruption of blood” was a familiar feature of the common law in England. A person found guilty of treason and certain other crimes would be barred from passing his estate on to his children, who would thus inherit nothing but the corrupted blood line. The framers of the United States Constitution considered and forcefully rejected the concept. Article III, the judiciary article, contains this sentence: “The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attained.” As James Madison expressed the thought more directly at the time, the purpose was to prevent Congress “from extending the consequences of guilt beyond the person of its author.”
Nor were the founding fathers content to leave the matter there. Going beyond treason, Congress enacted a law in 1790 to provide that “no conviction or judgment . . . shall work corruption of blood or any forfeiture of estate.” Although not in so many words, the principle that guilt is not inheritable lay behind the modern Supreme Court’s gradual recognition of rights for children born out of wedlock, deemed by society to be “illegitimate.”
The lawsuit filed last month in Federal District Court in Miami by the Southern Poverty Law Center asks the court to do the obvious: to rule that Florida’s “policy and practice of classifying dependent United States citizen students who reside in Florida as ‘non-residents’ based on their parents’ federal immigration status denies these United States citizens equal protection of the laws in violation of the 14th Amendment to the United States Constitution.”
The lawsuit, which seeks class-action status on behalf of “all past, present, and future United States citizens” affected by the policy, names five individual plaintiffs. Two were forced for financial reasons to withdraw from Miami Dade College when the policy took effect. Two others can’t afford to take all the credits necessary to complete their degrees on time, and one, who would have received a full scholarship as a resident, couldn’t afford to enroll at all. Four were born in Miami and one in Los Angeles. All are eligible to be president of the United States.
The complaint hasn’t yet been formally served on the state, so it’s not clear what defense Florida will come up with. Bills to overturn the policy were filed within the last few weeks in both houses of the Florida Legislature. If the state is lucky, one will pass and take it off the hook. The State Senate sponsor, Rene Garcia of Hialeah, is a Republican and chairman of the Florida Hispanic Caucus. “When you’re an American citizen, you’re an American citizen,” he said.