On January 25, 2017, recently elected President Donald Trump issued an Executive Order entitled “Enhancing Public Safety in the Interior of the United States.”  The stated purpose of the Order is to direct executive departments and agencies to employ “all lawful means” to enforce the immigration laws of the United States.  Among other things, the Order bolsters federal resources and provides avenues for increased state and local cooperation in immigration enforcement efforts.  Particular provisions targeting “sanctuary jurisdictions,” however, are being assailed as unconstitutional by state leaders including Govern Dannel Malloy, Attorney General George Jepsen, Senator Richard Blumenthal, and the mayors of more than a half-dozen municipalities from across the state.

There is no concrete legal definition of a “sanctuary” jurisdiction.  Generally speaking, however, a sanctuary jurisdiction may be characterized as a locale with a de jure (by law) or de facto (in fact) policy of limited cooperation with federal immigration enforcement.  These policies may, for example, prohibit or limit the expenditure of state or municipal funds for the enforcement of federal immigration laws.  Public employees, such as school administrators or law enforcement officers, may also be directed not to inquire about immigration status in the normal course of business.  Aside from these or similar policies, however, sanctuary jurisdictions do not traditionally afford residents any additional rights or privileges.

Several municipalities in Connecticut have declared themselves “sanctuary cities” in the past ten years, including Hartford, New Haven, Middletown, Windham, and Manchester.  The trend toward “sanctuary” status has also made its way to the state’s General Assembly.  In January 2017, Proposed Bill No. 6709, entitled “An Act Establishing Connecticut as a ‘Sanctuary State’ for Immigrants,” was presented to the state legislature. This bill, if passed, would amend the Connecticut General Statutes so as to prohibit law enforcement officers from inquiring about citizenship during their interactions with the public.  Various organizations, such as the Center for Immigration Studies, already describe Connecticut as a “sanctuary state,” though this title carries no legal ramifications.

Section Nine of the Order emphasizes state and local compliance with 8 U.S.C. § 1373, which covers certain communications between government agencies and the Immigration and Naturalization Services (absorbed into the Department of Homeland Security in 2003).  8 U.S.C. § 1373 states in part that, notwithstanding any state or local law, a state or local government may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the [Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.  Under the Order, a jurisdiction that refuses to comply with 8 U.S.C. §1373 may be designated a “sanctuary jurisdiction.”

Importantly, Section Nine authorizes the Secretary of the Department of Homeland Security to designate, “in his discretion and to the extent consistent with law,” a jurisdiction as a sanctuary jurisdiction.  The Attorney General is also authorized to take “appropriate enforcement action” against any entity that violates 8 U.S.C. § 1373, or which has in effect a statute, policy, or practice that “prevents or hinders the enforcement of federal law.”  Sanctuary jurisdictions may, for example, lose federal funding except as deemed necessary for law enforcement purposes.

Opponents of the executive action have already raised several concerns regarding the language and implementation of the Order.  Regarding the former, opponents argue that the definitions of “sanctuary jurisdiction” is ambiguous, since the Secretary has discretion to determine whether a locale is in compliance with 8 U.S.C. §1373 or otherwise preventing or hindering the enforcement of federal law.  Regarding the latter, opponents argue that the Order undermines federalism and essentially conscripts state and local governments into enforcing immigration laws, a responsibility historically delegated to the federal government.  Finally, opponents of the Order argue that the policies of sanctuary cities do not actually hinder the enforcement of immigration laws, and thus the federal government cannot reasonably deny federal funding on the basis of such policies.

In the context of public school education, opposition to the Order is based on the distinction between policies prohibiting school communications with the Department of Homeland Security, which would violate 8 U.S.C. §1373, and policies that simply direct administrators not to ask students or their families about their immigration status.  The Supreme Court case of Plyler v. Doe (1982) established that undocumented K-12 students are entitled to the same education as their citizen or legal resident peers.  In that case, the Court held that denying a public education to students based on their undocumented status violated the Fourteenth Amendment Equal Protection Clause.  The Court rejected, among other arguments, the assertion that protecting a state from an influx of illegal immigrants provides a “substantial justification” for denying students a public education on the basis of their undocumented status.  As such, existing case law holds that immigration status cannot be a basis for denying a public school education.

In May 2011, The Departments of Justice and Education further clarified that school districts generally should not inquire about a student’s immigrant status, because doing so may have a “chilling effect” on enrollment that would violate equal protection.  Since immigration status, unlike actual residency within a district, cannot be used as a factor in school enrollment, opponents of the Order argue that there is no need for administrators to inquire about students’ immigration statuses or that of their families in order to comply with 8 U.S.C. §1373.

Opponents of the Order in Connecticut and elsewhere have vowed to fight its implementation by any means necessary, including litigation.  In the meantime, the risk of reduced federal funding for “sanctuary jurisdictions” is significant, and the impact of the Order on the privacy rights of students and their families remains uncertain.

Attorneys at Berchem, Moses & Devlin, P.C. are available to consult to school districts regarding regular and special education matters in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@bmdlaw.com.