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Book Excerpt: The Politics of Immigration

by Jane Guskin And David Wilson

Do immigrants have the right to an education? (p. 54)

All immigrant children, regardless of their status, have the right to public education through the high-school level. The Supreme Court upheld this principle in the June 1982 Plyler v. Doe decision, which overturned a Texas state law denying school funding for undocumented students. The situation is more complicated when it comes to higher education like college, university, or technical schools. While many countries consider such education to be a universal right, the United States generally treats it as a privilege. Still, many community colleges and public universities in the United States provide accessible degree programs to city or state residents. In the past, it didn't matter if those students were immigrants living here without permission from the federal government.

But Section 505 of the 1996 Illegal Immigrant Reform and Immigrant Responsibility Act barred states from granting reduced tuition to undocumented state residents unless non-resident U.S. citizens in the same circumstances get the same privilege. As of April 2006, ten states had passed laws allowing undocumented students to get in-state tuition if they attended high school in the state for a certain number of years and graduated. (These state laws comply with the 1996 act by allowing U.S. citizens who meet the same state high school attendance and graduation requirements to get the same tuition rate, even if they no longer live in the state.)

As of April 2006, only about 5 to 10 percent of undocumented young people who graduate from high school go on to college, compared with about 75 percent of their classmates. There are many thousands of immigrants who came here as young children, have been educated in U.S. public schools, speak perfect English, feel as "American" as anyone else, and yet still lack legal status. Now they find themselves without a future. Denied in-state tuition, unable to qualify for financial aid under federal rules, and unable to work legally, they get stuck in low-paying jobs and shut out of more promising opportunities.

Each year, an estimated 65,000 out-of-status immigrants graduate from U.S. high schools and put their dreams on hold while they watch their classmates go off to college. Angela Perez, a Colombian immigrant, didn't even apply to college despite ranking fourth in her graduating class with a 3.8 grade-point average. "It feels awful," Angela wrote in an essay during her sophomore year. "I feel frustrated. I try hard until I accomplish something and I do not want all my accomplishments to be a waste of time. I want them to be valuable. I want to be able to pay my parents back after all their support and the difficulties they have lived in order to bring me here." Out-of-status students who do manage to get through college still can't pursue a career without legal status-like Kathy, another young immigrant, who graduated from Nyack College in New York with a degree in social work, but could only get a job as a nanny. "Graduation was the most depressing day of my life," she said.

Do immigrants have constitutional rights? (p. 58)

The Bill of Rights (the first ten amendments to the Constitution, ratified in 1791) refers to the rights of "people," not citizens. The First Amendment specifically guarantees freedom of speech and of religion, and "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Under the Bill of Rights, freedom from "unreasonable searches and seizures," from deprivation "of life, liberty, or property, without due process of law," from "excessive bail," "excessive fines," and "cruel and unusual punishments" are among the rights guaranteed to all persons-not only to the citizens of the United States. The Sixth Amendment guarantees any defendant in a criminal case-not only citizens-the right to a speedy public trial by jury with the assistance of a lawyer. Article One, Section 9 of the U.S. Constitution, indicates that anyone can use the writ of habeas corpus to go before a judge to challenge his or her imprisonment.

From the beginning, all these and other rights were systematically and openly denied to African Americans. Slavery remained legal and continued to exist for another seventy-four years after the Bill of Rights was ratified. The Supreme Court declared in the Dred Scott case of March 1857 that people of African descent-whether slave or free-did not have an inherent right to U.S. citizenship. Because it defended this injustice so blatantly, the Dred Scott ruling actually fueled the movement against slavery. In December 1865, the Thirteenth Amendment was ratified, banning slavery, and in July 1868, the Fourteenth Amendment was ratified, stating: 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Even here, where citizenship rights are defined, the last two clauses very clearly refer not to citizens but to "any person" and "any person within [a state's] jurisdiction." This language clearly extends due process rights and equal protection to immigrants, regardless of their legal status. (Some people have suggested amending the Constitution to eliminate the automatic "birthright citizenship" guaranteed by the Fourteenth Amendment, so that children born in the United States to out-of-status immigrants would not be U.S. citizens. This would be extremely unfair-children don't get to choose where they are born, and many would end up being stateless under such a system.) The Dred Scott case is a reminder that even when the Supreme Court upholds discriminatory policies as the "law of the land," we can fight back and eventually win policy changes that reflect the values of freedom, justice, and equal rights. Court decisions don't happen in a vacuum; if the people move, the courts will follow. As Riva Enteen, program director of the National Lawyers Guild's San Francisco chapter, put it in a 2002 interview: "[I]t takes a political movement to create a political context in which the courts respond and, frankly, do the right thing. So, if there wasn't a civil rights movement, the Supreme Court would not have [made its 1954 ruling in the] Brown v. Board [of Education case] to integrate the schools."

Today, equality under the law exists on paper for African Americans and other citizens of color-although in practice, pervasive discrimination means their rights are often violated with impunity. Non-citizens, by contrast, don't even have true equality on paper. The way the courts have interpreted the laws and the Constitution, immigrants don't have the right to be here in the first place-even if you're a legal permanent resident, your presence here is generally considered a privilege. Through this twist of logic, the government claims it can deport any non-citizen for virtually any reason, or for no reason at all- even longtime residents with green cards. This means non-citizens end up being denied a number of rights that should be guaranteed to "all persons"- like free speech, or freedom from unjust imprisonment, and from cruel and unusual punishment. If you are a non-citizen, you can be deported for exercising your freedom of expression, imprisoned without being charged with a crime, or exiled for life from the country you consider your home.

Do immigrants have the right to protest? (p. 60)

The First Amendment guarantees that everyone-immigrants as well as U.S.-born citizens-has the right to take part in public protests. Some people feel angry or resentful when they see immigrants exercising these rights, as when thousands marched and rallied across the United States between March and May of 2006 to defend immigrant rights. There seems to be an unspoken but widely held belief that out-of-status immigrants should stay "in their place" as silent cogs in the labor machine-hardworking, quiet, fearful, and out of sight. During the civil rights movement of the 1960s, African Americans who rose up against segregation and oppression saw similar reactions from whites-even among those who supported their rights but thought they should wait patiently for them rather than march.

But rights don't come to those who wait. "Power concedes nothing without a demand. It never did and it never will," noted prominent African-American writer, orator, and anti-slavery activist Frederick Douglass in a speech in August 1857, a few months after the Dred Scott decision.

About The Author

Jane Guskin And David Wilson are the co-editors of Weekly News Update on the Americas, an English-language bulletin covering grassroots news from Latin America. Guskin also edits Immigration News Briefs. Guskin produced a widely circulated immigrant rights flier entitled “What's So Wrong About Immigration?” Her essay “The Case for Open Borders” was published in Melting Point or Boiling Point? The Issues of Immigration. Wilson’s articles on Latin American issues have appeared in publications including Monthly Review, Extra!, and New York’s El Diario-La Prensa.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.