Alabama Refuses DOJ Request to Cooperate with HB 56 Inquiry

By Julianne Hing, crossposted from Colorlines. Alabama will not let the battle over its breathtakingly harsh anti-immigrant law, HB 56, be fought just in the courts.

In a flurry of letters exchanged late last week the Department of Justice sought access to education records for Alabama as part of an inquiry looking into whether provisions of the law are violating the civil rights of Alabama’s residents. And twice Alabama refused the federal government’s request, arguing that the DOJ had “no legal authority to compel production” of its education records.

It all began last Wednesday, when Assistant Attorney General Thomas Perez sent a letter to 39 Alabama superintendents in charge of districts with strong Latino enrollment asking for enrollment records. That request included a list of students designated as English Language Learners, and lists of students who had withdrawn from school or had unexcused absences since HB 56 had gone into effect.

The letter reminded Alabama school officials that a decades-old Supreme Court decision had affirmed the rights of U.S. resident children, regardless of their immigration status, to enroll in public schools.

Photo: Thomas Perez, assistant U.S. attorney for the Civil Rights Division of the Justice Department. Creative Commons/ ryanjreilly

The DOJ was prompted by reports that HB 56 was having a chilling effect on students too fearful to take advantage of their constitutional right to an education. The law seeks to undercut the basic rights of immigrants and includes a provision demanding schools track the immigration statuses of its students. Perez said that his office was concerned that the enforcement of HB 56 was potentially violating the Civil Rights Act and the Equal Opportunities Education Act.

In his first response, Alabama Attorney General Luther Strange instructed Alabama education officials not to cooperate with the request during of the ongoing legal fights over the law, and then demanded that Perez cite his legal authority to request the state’s education records.

“Otherwise, I will assume you have none, and will proceed accordingly,” Strange wrote last week.

In a subsequent exchange of letters, Strange again said that Perez had provided “no legal authority to compel production of the information you are seeking,” and asked that the DOJ share the complaints it had been receiving. Strange also wrote: “My office is determined to see that our school children are protected from unlawful activity.”

Immigrant rights advocates say Strange’s conduct says otherwise.

“[Attorney General Strange’s] statement that he’s not going to release his information and his instructing education officials not to provide information is extremely problematic,” said Alison Neal, the legislative director of the ACLU of Alabama, which is a member of the Alabama Coalition for Immigrant Justice. “Problematic isn’t a strong enough word.”

“It harkens back to the day of Alabama officials standing at the front of schoolhouses blocking [African American students’] access to classrooms,” Neal said.

“We have a long sordid history of violating folks’ constitutional rights in this state and the federal government has had to repeatedly step in to protect the constitutional rights of the people of Alabama.”

Supporters of HB 56 have argued that the federal government’s post-HB 56 inquiry is consistent with their own intentions with the law.

“They are asking for the same student information we tried to get. They are proving our point,” said HB 56 sponsor and Rebublican State Sen. Scott Beason, the AP reported.

Neal said the only similar instance of state refusal to cooperate with a federal inquiry also involved allegations of immigrant abuse. In 2010 the Department of Justice ultimately filed a lawsuit against Maricopa County Sheriff Joe Arpaio, the notorious anti-immigrant public official, who also refused to produce documents when the DOJ was looking into reports of Arpaio’s civil rights abuses. At the time, Attorney General Eric Holder called his office’s actions in the face of Arpaio’s defiance “unprecedented.”

Portions of HB 56 have been enjoined, and most recently a federal appeals court granted an emergency stay to block the provision of HB 56 which demanded that the state track the immigration statuses of its students. However, a key provision which requires law enforcement officials to investigate the immigration statuses of anyone they believe may be undocumented, is still in effect.