Our Rights, Our Future

California DREAMing

As the Senate prepares to vote on the DREAM Act, there's rarely a day that those of us here at NCRCR don't find ourselves thinking about the intersections between race, class, nationality and legal status and how these issues are addressed in the courts. As such, the issues faced by undocumented students trying to get an education are of particular interest. Through no act of their own (and more often than not an act of economic desperation on the part of their parents), thousands of smart and talented young people graduate high school in the U.S. each year and, because of their immigration status, find themselves ineligible for the federal loans that “finance” the college educations of their documented peers. To make matters worse, several states have passed laws making these undocumented students ineligible for the “in-state” reduced tuition rate at public universities and colleges available to legal residents of the state. Because these undocumented students’ families usually do not have the means to throw down $20-40,000 per year on tuition, the students hit a dead-end, ostensibly ensuring their inability to enter an increasingly competitive job market in what is, in some cases, the only country they have ever known.

There are laws that make this situation questionable: Title VI and VII of the Civil Rights Act of 1964 prohibit discrimination based on race or national origin, and the 14th Amendment to the United States Constitution promises the equal protection of a state's laws to any person within that state’s jurisdiction and allows the courts to enforce the principle that “all men are created equal.” In support of this constitutional right, the Supreme Court held in the 1982 case Plyler v. Doe that undocumented immigrants were entitled to a free and equal K-12 public education. This key ruling was based on the premise that everyone, regardless of immigration status, has the right to an education. With this decision states could no longer withhold a state-funded, public primary and secondary education to undocumented children. When it comes to college, however, no effort has been made to address this issue on a federal level, and the battle over access to an affordable college education for undocumented students is being fought in the courts. In a recent victory for these students, the California state Supreme Court ruled that undocumented students who attended at least three years of high school in California must be eligible for in-state tuition at public universities. This can amount to a difference of up to $12,000 per year, which certainly makes trying to get a college education less daunting. Nine other states have similar legislation, though lawsuits are pending in two states in order to challenge these laws -- but each ruling in favor of such laws adds legitimacy to the right of all young people in the U.S. to get a quality and affordable education.

If the DREAM Act passes, undocumented students will also have a pathway to pursue U.S. citizenship after graduating from college or a trade school. As ever, progress is gradual and the courts continue to play an important role in ensuring that progress is made.

(Photo by Gord McKenna.)

NCRCR Interview Series: Legal Challenge to Arizona SB1070

Tricia Perry of the National Campaign to Restore Civil Rights spoke with Victor Viramontes at MALDEF about about his organization's recent legal challenge to the controversial new Arizona immigration law, filed in conjunction with the ACLU and NILC. Listen in as Viramontes talks about the plaintiffs and legal issues involved in the case.

A Little Bit of Law in a Law-Free Zone

By Phil Mayor

Rio Grande City, South Texas.  Four Hispanic men get into a car in a Wal-mart parking lot.  A border patrol agent sees them, and he follows the truck.  When he pulls up alongside the truck the driver looks at him but the passengers do not.  The passengers are not talking to each other and are wearing their seatbelts.  Allegedly, they are also “sweating pretty bad.”  Apparently under the impression that looking Latino, sweating, wearing a seatbelt and not looking at passing border patrol agents constitutes grounds for stopping an automobile, Agent Victor Soliz pulls the car over and when it turns out that he is “right” and that some of the passengers are undocumented, the driver is charged with “unlawfully transporting undocumented aliens.”

The Fifth Circuit recently held that Agent Soliz’s search was not reasonable in a case called United States v. Rangel Portillo.  Luckily for Rangel-Portillo, the passengers in his car were not “dirty and disheveled”--because nine years ago, the same court held that a border patrol stop was justified on that basis 160 miles from the border in an otherwise almost identical situation. 

The court ultimately got this case right, but the problem of racial profiling against Latinos both near the border and just about everywhere else is growing, and wins such as Rangel-Portillo’s are rare.  Because the untold number of stops that do not yield arrests aren’t regularly litigated, we may never know how many innocent Latino citizens are harassed in this manner.   A recent survey by the Pew Center suggests that one in ten Latinos in the United States were pulled over and questioned about their immigration status in 2008.   A long time ago the Supreme Court held that border patrol agents are not required to have the same probable cause that they must have everywhere else in order to stop and question drivers in the border region (within 100 miles of the border), and courts and agents have generally taken this to heart.  According to the Supreme Court in 1975, while in the border zone, “Mexican appearance” is “a relevant factor” in deciding whether a border patrol agent can pull over any car she likes.

It is not that the logic is wrong.  If you pull over every individual that “looks” Mexican, you’ll probably catch a lot of undocumented Mexicans.  But you’ll also harass an awful lot of individuals who are here lawfully—and in the process violate the Constitution.  This is happening around the country.  The border patrol has long stood accused of racial profiling along the southern border, and in recent years, agents have started pulling the same tricks far away from Mexico -- along the Canadian border.   Immigrants in upstate New York have reported being harassed in their hometowns by “roving patrols” of immigration agents, as well as being questioned without any probable cause while riding Greyhound buses and Amtrak trains.

The Fifth Circuit got its most recent case right, but our federal courts have a long way to go in combating racial profiling against its Latino population.  Hopefully the Supreme Court—which eagerly, if disingenuously, proclaimed the importance of avoiding racial classification while striking down progressive attempts to encourage school integration in Seattle (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” )—will reconsider its longstanding authorization for agents to consider the color of a driver’s skin when making traffic stops.

Phil Mayor is a second year law student at Harvard Law School where he is an Editor for Amicus, the online supplement to the Harvard Civil Rights and Civil Liberties Law Review. He also runs the Harvard Immigration Project and sits on the boards of the Harvard Law chapters of the ACLU and the American Constitution Society. Before law school, Phil worked for three years as a legal assistant for Human Rights Initiative of North Texas where he worked on asylum cases and immigration cases for immigrant survivors of domestic violence. He spent his first summer during law school working at LatinoJustice in New York City.

(Photo by O.Cosma.)

Why Language Access Matters

by Nisha Agarwal

Every person who reads this likely speaks English, and speaks it well.  Whether we are people of color, people with physical disabilities, members of a religious minority, women, gay, working class or poor, we stand with the vast majority of America in that we enjoy “English privilege.”  Practically speaking, English privilege means this: For over 24 million people in the United States, it is difficult and sometimes impossible to get jobs, hold jobs, feed their families, vote in an election, be on a jury, make doctors’ appointments, take medication, use the courts, receive an education, get a home, keep a home—basically, participate in all of the ordinary and extraordinary features of American life—because they do not speak English.

Consider the experience of María Angela C., a Spanish-speaking woman from New York City who is in the process of learning English but hasn’t mastered it well enough to understand complicated health information.  One day, her 5-year-old son broke out in hives due to an allergic reaction.  She rushed him to the doctor, who wrote her a prescription but did not explain how to take the medication.  When María Angela went to the pharmacy to fill the prescription, the pharmacist also failed to explain how to take the medication and handed her a bottle with instructions in English only.  María Angela took the bottle home, opened it and saw a pink liquid that resembled “pepto,” so she surmised that the medication should be administered orally.  After her son took a spoonful, however, he reacted with extreme disgust, and María Angela became nervous.  She asked a neighbor to translate the label and learned that the medication actually had to be applied topically.  María Angela was devastated.  Her son risked another allergic reaction, or worse, due to the fact that the health care delivery system that she encountered operated in English only, and she did not (yet) have the English-speaking ability to navigate it safely. 

María Angela and her son faced a barrier to equal health access, to a basic human need, that the rest of us take for granted.  Though many Americans have felt powerless and overwhelmed in the U.S. health care system, most of us have probably not felt silenced – quite literally unable to ask for or receive help because of the language we speak.  Fortunately, civil rights laws are in place to break this silence.  Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of national origin, which includes language.  In the health care context, this means that hospitals and pharmacies must provide interpretation services and translated medication labels to ensure that individuals such as María Angela can access health services with the same hope as the rest of us: that it will improve well-being, not further compromise it.  Unfortunately, the Supreme Court has, in recent years, begun to interpret the law in such a way that this right to equal access does not have an adequate remedy.  In the 2001 decision of Alexander v. Sandoval, a case about an English-only amendment to the Alabama state constitution, the Court held that private individuals cannot sue in federal court for violations of Title VI unless they can show that they were the victims of intentional discrimination – that is, if they can point to something like a “Whites Only” sign on the front door of the pharmacy.

Sandoval put the kibosh on virtually all federal litigation under Title VI in the health care arena, among many others.  Advocates have sometimes been able to work around the problem.  For example, our Health Justice Program (HJP) represents Make the Road New York, a Latino community-based organization in New York City, and has successfully approached  government agencies such as the state Attorney General’s office to compel investigations of and settlement agreements with national chain pharmacies that do not provide interpretation services and translated medication labels for their non-English speaking customers.  We have also drafted and lobbied for the passage of language rights laws that would compensate for the erosion of civil rights protections at the federal level.  In fact, this morning, New York City’s Mayor Bloomberg signed the Language Access in Pharmacies Act, which will ensure that, in the future, María Angela and her son can use pharmacies in the five boroughs and have their rights to language assistance services respected. 

But what about people living in areas where government agencies are not as receptive to the claims of linguistic minorities, and where local elected representatives do not have the same numbers of immigrant constituents holding them accountable?  What about people like Baltazar Cruz, who went to a hospital in Mississippi to give birth and ended up having her child taken away from her because she didn’t speak English?   In these cases, re-opening the doors of the federal courthouse is crucial.  Language rights are, fundamentally, civil rights, which should have a remedy in every part of our country.  And leaving your health care provider with an understanding of how to care for your child, with that child still in your arms, is a basic right; it should not be a privilege.     

Nisha Agarwal is the Director of the Health Justice Program at New York Lawyers for the Public Interest (NYLPI), a non-profit civil rights organization in New York City.  You can learn more about the pharmacy language access campaign and download materials at: http://healthjustice.wordpress.com/resources/#Rx. 

Local Ordinances Being Used To Allow Anti-Immigrant Discrimination

In the wake of Congress' failure to pass comprehensive immigration reform, some anti-immigration activists are beginning to actively pursue discriminatory immigration policies through local ordinances. Many of the ordinances targeting undocumented workers appear to be grossly unconstitutional and largely hypocritical. Ironically, those who support anti-immigration policies, many of whom eagerly denounce the judiciary's connection to policy, are using the courts to accomplish their own policy aims.

Supreme Court Cracks Down On Government's Abusive Anti-Immigrant Tactic

The Supreme Court unanimously ruled that federal prosecutors can't charge illegal workers with aggravated identity theft for submitting false social security numbers to keep their jobs. Charges of identity theft carry up to a two-year prison sentence, and it had become a "favorite tool of prosecutors" to threaten workers with a jail term to prod them into pleading guilty to lesser charges. Conservative Justice Samuel Alito explained that the government's policy amounted to a roll of the dice, as workers couldn't possibly know whether the numbers they were submitting were false or not.

Dear Nashville: Next Time, Please Unshackle Detained Pregnant Immigrants Before They Go Into Labor

Here's why local police departments shouldn't be allowed to enforce federal immigration laws: Nashville officers forced Juana Villegas to give birth while shackled to a hospital gurney, and then separated the mother from her newborn. Villegas' breasts soon become infected and the infant developed jaundice. Juana, a 33-year-old undocumented immigrant, was arrested and thrown in jail for the misdemeanor charge of driving without a license.

This Angry Protestor Makes A Convincing Argument

"Excellent point: In Houston, a Texan protesting amnesty for illegal immigrants argues that anyone who can't master English doesn't deserve to live in America."

Iowa Judge Joins Forces with Anti-Immigrant Congressman

Cross-posted from The Huffington Post.

Through his typo-ridden decision that declared illegal the presentation of voter information in any language other than English, Iowan Polk County District Judge Douglas Staskal joined the Civil Rights Rollback Hall of Shame.

Judge: Learn English Or Go To Jail

A Pennsylvania judge threatened four men with hefty jail terms if they failed to learn English. Luzerne County Judge Peter Paul Olszewski Jr. was inspired to issue his ruling when he saw defendants Luis Reyes, Ricardo Dominguez, Kelvin Reyes-Rosario and Rafael Guzman-Mateo appear before the court with the aid of a translator. After sentencing, the judge remarked: “There’s no way young kids can be hurt by knowing how to read and write the English language.”