Case Information
*3 Bеfore WILSON and MARTIN, Circuit Judges, and VOORHEES, District Judge. [*]
WILSON, Circuit Judge:
This appeal presents the challenges of private plaintiffs to various provisions of Alabama’s House Bill 56, the “Beason–Hammon Alabama Taxpayer and Citizen Protection Act” (H.B. 56). Relevant to this appeal, the plaintiffs here (the HICA Plaintiffs) brought suit against defendants (the State Officials) contending that sections 8, 10, 11(a), 12(a), 13, 18, 27, 28, and 30 are preempted [1] by federal law; that section 28 violates the Equal Protection Clause; and that the last sentence of sections 10(e), 11(e), and 13(h) violates the Compulsory Process Clause. In the companion case brought by the United States, we have concluded [2]
that preliminary injunction of sections 10, 11(a), 13(a), and 27 is appropriate, and that injunction of sections 12, 18, and 30 is not supportable at this stage of litigation. See United States v. Alabama , Nos. 11-14532, 11-14674. The [3]
operation of those sections and rationale for our disposition are set forth fully in the companion case, and herein we address the HICA Plaintiffs’ challenges not already covered in that opinion. [4]
Section 8 provides that an unlawfully present alien “shall not be permitted housed.
[2] Additional provisions that were unsuccessfully challenged in the district court are not contested here. Furthermore, the district court’s ruling concerning section 13 is not contested in this appeal.
[3] In briefing filed after the decision in
Arizona v. United States
,
[4] Insofar as the HICA Plaintiffs argue that sections 10 and 27 are preempted, we dismiss the appeal as moot in light of our ruling in the companion case.
to enroll in or attend any public postsecondary education institution” in Alabama. Ala. Code § 31-13-8. In order to execute this prohibition, officers of those institutions may “seek federal verification of an alien’s immigration status with the federal government” pursuant to 8 U.S.C. § 1373(c) but cannot independently make a final determination about the immigration status of an alien. Id. Section 8 also renders unlawfully present aliens ineligible for “any postsecondary education benefit, including, but not limited to, scholarships, grants, or financial aid” not otherwise required by law. Id.
Sections 10(e), 11(e), and 13(h) each prescribe the means by which a conviction for the corresponding criminal provision may be attained. Each section ends in a common sentence mandating that the Alabama courts “shall consider only the federal government’s [§ 1373(c)] verification in determining whether an alien is” lawfully present in the United States, Ala. Code §§ 31-13-10(e), -13(h), or authorized to work, id. § 31-13-11(e).
Section 28 provides a process for schools to collect data about the immigration status of students who enroll in public school. Schools are required to determine whether an enrolling child “was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States.” Id. § 31-13-27(a)(1). That determination is made based on the birth certificate of the child. Id. § 31-13-27(a)(2). If none is available, or if the certificate reflects that “the student was born outside . . . the United States or is the child of an alien not lawfully present in the United States,” then the enrolling child’s parent or guardian must notify the school of the “actual citizenship or immigration status of the student under federal law.” Id. § 31-13-27(a)(3). This notification consists of (a) official citizenship or immigration documentation and (b) an attestation under penalty of perjury that the document idеntifies the child. Id. § 31-13-27(a)(4). If the statutory notification is not provided, then the student is presumed to be “an alien unlawfully present in the United States.” Id. § 31-13-27(a)(5).
Before H.B. 56 became effective, the HICA Plaintiffs, along with the United States, filed suit to invalidate certain provisions of the law. The HICA Plaintiffs moved to preliminarily enjoin the operation of numerous provisions of the law, and the district court consolidated its case with the related suit brought by the United States for purposes of deciding the injunction. Relevant here, the district court enjoined sections 8, 11(a), and 13 as preempted by federal law and sections 10(e), 11(e), and 13(h) as violative of the Compulsory Process Clause. It also found that none of the HICA Plaintiffs had standing to challenge section 28.
Both sides appealed. The United States and HICA Plaintiffs contested the district court’s denial of a preliminary injunction, and Alabama cross-appealed the district court’s grant of preliminary injunctive relief. After filing its notice of appeal, the United States and HICA Plaintiffs sought from this court an injunction pending appeal to prevent enforcement of the sections for which the district court denied an injunction. A panel of this court granted in part the motion for injunction pending appeal, enjoining enforcement of sections 10 and 28. Later, after briefing and oral argument, we modified the injunction pending ultimate disposition of this appeal and enjoined enforcement of sections 27 and 30.
Having closely considered the positions and new briefing of the parties in
light of the recent decision in
Arizona v. United States
,
10, 11, and 13, we vacate as moot the district court’s injunction of the last sentence of sections 10(e), 11(e), and 13(h). Finally, because we find sections 10 and 27 preempted in the companion case brought by the United States, we dismiss as moot the HICA Plaintiffs’ appeal as to these sections.
I. Standard of Review
We review a district court’s grant of a preliminary injunction for abuse of
discretion.
McDonald’s Corp. v. Robertson
,
II. Discussion
A preliminary injunction may be granted to a moving party who establishes
“(1) substantial likelihood of success on the merits; (2) irreparable injury will be
suffered unless the injunction issues; (3) the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause the opposing
party; and (4) if issued, the injunction would not be adverse to the public interest.”
Robertson
,
A. Likelihood of Success on the Merits
1. Section 8 As originally enacted, section 8 prohibited a wide array of aliens from attending public postsecondary educational institutions in Alabama. The first sentence of that section prohibited enrollment of “[a]n alien who is not lawfully present in the United States.” Ala. Code § 31-13-8. The second sentence, however, expressly limited enrollment to aliens who “possess lawful permanent residence or an appropriate nonimmigrant visa under 8 U.S.C. § 1101, et seq.” Id. The district court enjoined section 8 in its entirety on the ground that it constituted an unconstitutional classification of aliens. Since thаt ruling, the Alabama legislature has amended section 8 to remove the second sentence entirely, which was understood to define lawful presence as requiring lawful permanent residence or a nonimmigrant visa.
There is no doubt that “[t]he States enjoy no power with respect to the
classification of aliens.”
Plyler v. Doe
,
2. Sections 10(e), 11(e), and 13(h) The HICA Plaintiffs claim that the final sentences of sections 10(e), 11(e), and 13(h) violate the Compulsory Process Clause of the Sixth Amendment. We need not reach the merits of this contention in light of our ruling in the United States’s companion case that sections 10, 11(a), and 13(a) are preempted. The challenged provisions limiting the evidentiary presentation for violations of those provisions will not be applied because the underlying criminal prohibitions are unenforceable. We therefore vacate the district court’s injunction of these specific sentences as moot.
3. Section 28 The HICA Plaintiffs challenge the district court’s threshold finding that none of the individuals or organizations had standing to challenge section 28. We agree with Plaintiffs that at least one organization has standing to challenge this provision. We further conclude that the HICA Plaintiffs are likely to succeed on their claim that section 28 violates the Equal Protection Clause.
a.
Standing
“‘[A]n organization has standing to sue on its own behalf if the defendant’s
illegal acts impair its ability to engage in its projects by forcing the organization to
divert resources to counteract those illegal acts.’”
Common Cause/Ga. v. Billups
,
Here, Plaintiff Alabama Appleseed Center for Law & Justice, Inc. has
claimed injuries analogous to those present in
Common Cause
and
Browning
.
John A. Pickens, the Executive Director of Alabama Appleseed, submitted
declarations to explain the manner in which H.B. 56, and particularly section 28,
has affected and will continue to affect his organization. Pickens declared that
many of the inquiries received by the organization were prompted by the passage
of H.B. 56 and related to the education provision at issue, including questions
about how to enroll children in school, whether children should be enrolled, how
schools will use the information collected, and whether parents will suffer
immigration consequences as a result of a child’s enrollment. In response to the
passage of H.B. 56, Alabama Appleseed has hosted presentations to convey
information about the consequences of the law, including its education provision.
Furthermore, the time and money expended on the planning and execution of these
events has forced the organization to divert resources from other immigration
policy work. According to Pickens, these endeavors “will continue to be
detrimentally impacted” as they will have to be “substantially curtail[ed] or
stop[ped].” These alleged injuries are sufficient under our precedent to confer
standing on Alabama Appleseed.
See Common Cause
,
Browning
,
b. Merits Section 28 requires every public elementary and secondary school within Alabama to determine upon enrollment whether the enrolling child “was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States.” Ala. Code § 31-13-27(a)(1). The sсhool must make this determination by examining the birth certificate the student has presented. Id. § 31-13-27(a)(2). If the birth certificate reveals “that the student was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States,” or if the birth certificate is unavailable, then the child’s guardian must within thirty days notify the school of the “actual citizenship or immigration status of the student under federal law.” Id. § 31-13-27(a)(3); see also id. § 31-13-27(a)(4) (setting forth the notification procedure). If the notification procedure laid out in the statute is not satisfied, then “the school official shall presume for the purposes of reporting under this section that the student is an alien unlawfully present in the United States.” Id. § 31-13-27(a)(5). Public disclosure of information that identifies a student is prohibited “except for purposes permitted pursuant to 8 U.S.C. §§ 1373 and 1644.” Id. § 31-13-27(e).
The Equal Protection Clause of the Fourteenth Amendment “direct[s] that
all persons similarly situated should be treated alike.”
City of Cleburne v.
Cleburne Living Ctr.
,
Apart from certain classifications, the Supreme Court has recognized that
where a statute significantly interferes with the exercise of a protected right, it
must also be reviewed under a similarly heightened level of scrutiny.
See, e.g.
,
Zablocki v. Redhail
,
Together, the specific interplay between the types of individuals affected by
the statute and the deprivation at issue may justify requiring a heightened level of
scrutiny to uphold the statute’s categorization.
See Plyler
,
The State Officials assert that heightened scrutiny is not warranted because section 28 is only a means to collect data, which does not implicate any right protected by the Equal Protection Clause. See, e.g. , Morales v. Daley , 116 F. [7]
Supp. 2d 801, 814–15 (S.D. Tex. 2000) (upholding the national census against a
Fifth Amendment equal protection challenge). This argument, though, does not
conclusively resolve the whole of the equal protection inquiry before us. Nor is it
enough to argue that, unlike the statute at issue in
Plyler
, section 28 does not by its
terms purport to deny an education to any child. Our duty, instead, is to analyze
whether section 28 operates in such a way thаt it “significantly interferes with the
exercise of” the right to an elementary public education as guaranteed by
Plyler
.
Zablocki
,
In
Plyler
the Supreme Court held that a Texas statute denying free public
education to undocumented children violated the Equal Protection Clause. 457
U.S. at 230,
The Court analyzed four goals that could arguably legitimize the statute,
finding each insufficient to uphold the Texas law. First, the Court quickly
dismissed an interest in preservation of resources for the state’s lawful residents as
no more than “a concise expression of an intention to discriminate.”
Id.
at 227,
The State Officials differentiate Plyler on the ground that, by its terms, section 28 affects every child who enrolls in school. It is true that the preliminary requirement of showing a birth certificate applies equally to each child, but that does not fully describe the operation of section 28. The “special impact” challenged here is not an inability to show a birth certificate but the state- mandated disclosure of the immigration status of the child (and possibly his or her parents) upon enrollment. Other sections of H.B. 56 compel the conclusion that, despite the characterization of the State Officials, section 28 targets the population of undocumented school children in Alabama. For example, section 2 states that one of the goals of the bill is “to accurately measure and assess the population of students who are aliens not lawfully present in the United States .” Ala. Code § 31-13-2 (emphasis added). Clearly, the law contemplates no interest in the birthplace of any child who is lawfully present, and the blanket requirement that all students show a birth certificate is simply a necessary means by which section 28 forces unlawfully present aliens to divulge their unlawful status.
Under the terms of section 28, the parent or guardian of any student who (1)
is not lawfully present, (2) was born outside of the United States, or (3) cannot
produce a birth certificate “
shall
notify the school . . . of the actual citizenship or
immigration status of the student under federal law.” Ala. Code § 31-13-27(a)(3)
(emphasis added). The form of this notification is also governed by statute and
requires official documentation (or a notarized recognition of the documentation)
in addition to a parental attestation under penalty of perjury verifying the identity
of the child in order to satisfy school officials of a student’s legal status.
Id.
§ 31-
13-27(a)(4). Undocumented children, obviously, cannot produce the requisite
documentation to satisfy these criteria; likewise the failure to submit any required
notification documents means that the school “shall presume . . . that the student is
an alien unlawfully present in the United States.”
Id.
§ 31-13-27(a)(5).
Consequently, section 28 operates to place undocumented children, and their
families, in an impossible dilemma: either admit your unlawful status outright or
concede it through silence. In either scenario, the relevant state database will
identify the student as an unlawfully present alien, even though that individual
may be a “child enjoying an inchoate federal permission to remain.”
Plyler
, 457
U.S. at 226,
Compared to the tuition requirement struck down in
Plyler
, section 28
imposes similar obstacles to the ability of an undocumented child to obtain an
education—it mandates disclosure of the child’s unlawful status as a prerequisite
to enrollment in public school. This hurdle will understandably deter this
population from enrolling in and attending school because, as unlawfully present
aliens, “these children are subject to deportation,” and removal proceedings can be
instituted upon the federal government being informed of their undocumented
status.
Id.
Alabama learns of this status upon enrollment in school, and as fully
explained below, federal statutes prohibit Alabama from restricting the disclosure
of this information.
See
8 U.S.C. §§ 1373, 1644. Moreover, revealing the illegal
status of children could lead to criminal prosecution, harassment, and
intimidation.
See Rivera v. NIBCO, Inc.
,
(concluding that revealing the immigration status of the plaintiffs could lead to
legal consequences and would likely deter them from exercising legal rights);
Liu
v. Donna Karan Int’l, Inc.
,
The State Officials understandably counter that section 28 restricts the dissemination of the private information of these children and their families, which presumably would eliminate the risk of adverse immigration consequences. These privacy restrictions, however, are wholly ineffectual in themselves. Section 28 limits the public disclosure of information “except for purposes permitted pursuant to 8 U.S.C. §§ 1373 and 1644.” Ala. Code. § 31-13-27(e). Sections 1373 and 1644, in turn, require Alabama to рrovide immigration-related information to the federal government and other states upon request and prohibit Alabama from restricting this transfer of information. Any textual prohibition on revealing the [10]
immigration status of the children and their families is of little comfort when federal law requires that disclosure upon request. Consequently, the risks that accompany revealing the illegal status of the school children is not mitigated by the ineffectual privacy restrictions of section 28.
Having concluded that section 28 substantially burdens the rights secured
by
Plyler
, we may only uphold it if the provision “furthers some substantial state
interest.”
Even assuming that the various justifications offered by the State Officials are advanced in an attempt to survive heightened scrutiny, we find none to be convincing. First, the State Officials justify section 28 with the school-related legislative findings of H.B. 56. See Ala. Code § 31-13-2. The State Officials cite to the desire to collect data about “the costs incurred by school districts” to educate unlawfully present children in order “to accurately measure and assess” the immigration status, lawful or unlawful, of an alien in the United States.”).
the undocumented student population and “to forecast and plan for any impact” that their presence may have on the state’s public-education program. Id. The briefing of the State Officials in the companion case, No. 11-14532, concedes that section 28 “is . . . unlikely to yield particularly precise data,” thereby recognizing that the stated legislative purpose will probably not be effectuated by the data- collection provision. Corrected Response Brief for Appellees at 53. Along those [11]
lines, it is diffiсult to fathom how admittedly inaccurate data would be used to
forecast the needs and plan for impact of populations of undocumented school
children, especially given that the population of interest cannot be denied a free
public elementary or secondary education in the first place.
See Plyler
, 457 U.S.
at 228–29,
The State Officials posit additional justifications at a general level,
supposing that the data could be used to defend “litigation in which the costs of
illegal immigration are at issue” or to “enlighten the public about the impacts of
illegal immigration.” Although those might be legitimate state interests, the means
chosen by Alabama “unnecessarily burden[s]” the children’s right to a basic
education.
Mem’l Hosp.
,
B. Equitable Factors
The equities favor enjoining the operation of section 28. As explained
above, that provision imposes a substantial burden on the right of undocumented
school children to receive an education. Alabama has no interest in enforcing a
state law that is unconstitutional, and the interference with the educational rights
of undocumented children is not a harm that can be compensated by monetary
damages.
See Scott v. Roberts
,
III. Conclusion
Because we have found that the United States is likely to succeed on its claims that sections 10 and 27 are preempted, we dismiss the HICA Plaintiffs’ appeal as to those sections as moot. We vacate as moot the district court’s injunction of section 8 and remand for the dismissal of the challenge to that section, as the stаtutory amendment has removed the challenged language. In light of our decision on the substantive provisions of sections 10, 11, and 13, we vacate as moot the district court’s order insofar as it preliminarily enjoins the last sentence of sections 10(e), 11(e), and 13(h). We find that at least one of the HICA Plaintiffs has standing to challenge section 28 and that section 28 violates the Equal Protection Clause. We therefore reverse the district court’s decision and remand for the entry of a preliminary injunction. Finally, we conclude, for the reasons stated in the United States’s companion case, Nos. 11-14532, 11-14674, that the HICA Plaintiffs cannot succeed on the merits of their facial challenge to sections 12, 18, and 30 at this time.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, DISMISSED IN PART, AND REMANDED.
Notes
[*] Honorable Richard L. Voorhees, United States District Judge for the Western District of North Carolina, sitting by designation.
[1] Consistent with how this case has been presented, we reference the originally designated sections of H.B. 56 rather than the Alabama Code section where the provisions are currently
[5] In the United States’s companion case, we found a likelihood of success on the preemption claims made against sections 10, 11(a), 13(a), 16, 17, and 27.
[6] Because one plaintiff with standing is sufficient to permit our review of the
constitutionality of section 28, we proceed to address the merits without regard to the standing of
other individuals or organizations.
See Florida v. U.S. Dep’t of Health & Human Servs.
, 648
F.3d 1235, 1243–44 (11th Cir. 2011),
rev’d in part on other grounds
,
[7] We reject the argument that the Equal Protection Clause is not triggered by section 28’s
reporting requirement. “A violation of the equal protection clause may occur when a legislative
body enacts a law which ‘has a special impact on less than all the persons subject to its
jurisdiction.’”
Price v. Tanner
,
[8] It is this reality that has led federal courts—including the district court here—to permit
the plaintiffs to proсeed anonymously in immigration-related cases.
See, e.g.
,
Lozano v. City of
Hazelton
,
[9] Nor are we alone in arriving at this conclusion. Indeed, the Civil Rights Division of the Department of Justice has been conducting an investigation into the increased absentee rate of undocumented children that occurred immediately after the passage of H.B. 56—a rate that tripled. See Mary Orndorff, DOJ Looks at State School Records , Birmingham News, Nov. 5, 2011, at A1; Letter from Thomas E. Perez, Assistant Attorney General, to Dr. Thomas R. Bice, State Superintendent of Education (May 1, 2012).
[10] See 8 U.S.C. § 1373(a) (“Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”); id. § 1373(b)(3) (“Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Fеderal, State, or local government entity from . . . [e]xchanging such information with any other Federal, State, or local government entity.”); id. § 1644 (“Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding
[11] The State Officials also argue that, “[t]o the extent that the count [s]ection 28 generates is not precise, that is only because the statute goes out of its way not to force parents or their students to release immigration-status information if they choose not to do so.” Hispanic Interest Coal. of Ala. , Nos. 11-14535, 11-14675, Response Brief for Appellees at 58. We find this humanitarian justification implausible, given the mandatory language of section 28 that each school shall determine the immigration status of each student, that each parent shall inform the school of the child’s status, and that each school shall label the student as unlawfully present in the event no paperwork is provided. The position of the State Officials is further undermined by section 6, which requires maximum enforcement of H.B. 56. Specifically, section 6 forbids state actors from restricting the enforcement of H.B. 56 “to less than the full extent permitted” therein, Ala. Code § 31-13-6(a), and provides for civil penalties in the event the law is not enforced to the maximum extent, id. § 31-13-6(d). See also id. § 31-13-6(f) (imposing a duty on all public employees to report violations of H.B. 56).