DACA Once Again Thrown Out by Federal Judge: Hundreds of Thousands of DREAMers Fear for Their Future

The need to protect DREAMers is an old and still urgent issue. DREAMers are adolescents and young adults who remain undocumented and were brought here as very young children by their non-citizen parents. They are members of every community; they attend our public schools; and in many cases, once they have grown up, they are teaching in our schools or working in our communities.  In most instances the United States has been home to these young people during almost their entire lives. English is likely to be their primary language, and they may not know anyone in their parents’ home country. But they remain undocumented and, these days, threatened with deportation if DACA, the program President Obama created to protect them, is eliminated.

These young people are called DREAMers because the protection they and their advocates have sought has been called the DREAM Act (Development, Relief, and Education for Alien Minors Act).  A 1982 U.S. Supreme Court decision in Plyler v. Doe protects their right to a public school education despite that they are not U.S. citizens, but until President Obama created DACA (Deferred Action for Childhood Arrivals) by executive order, they were left vulnerable. DACA was a temporary program intended to at least protect these young people’s right to work, to apply for a driver’s license and to avoid deportation. Some states still deny DREAMers access to in-state tuition at public colleges or to publicly funded scholarships.

The NY Times‘ Miriam Jordan explains who has been eligible for DACA  protection: “To qualify for DACA, applicants must have entered the United States before age 16, lived in the country continuously since June 2007, finished high school or enlisted in the military, and have a clean criminal record.”  Approximately 700,000 young people are currently protected.

A week ago, a federal judge in Texas ruled against President Obama’s DACA program, letting current protection stand for young people already in enrolled in the program, but banning the Department of Homeland Security from awarding DACA protection for any new applicants, including a huge backlog of applications already filed that the Department of Homeland Security has allowed to build up during this COVID-19 year.

Jordan reports: “A federal judge in Texas on Friday ruled unlawful a program that has shielded hundreds of thousands of undocumented young adults from deportation, throwing into question yet again the fate of immigrants known as DREAMers. The judge, Andrew S. Hanen of the United States District Court in Houston, said President Barack Obama exceeded his authority when he created the program… by executive action in 2012.  But the judge wrote that the current program recipients would not be immediately affected, and that the federal government should not ‘take any immigration, deportation or criminal action’ against them that it ‘would not otherwise take.’  The Department of Homeland Security may continue to accept new applications but is temporarily prohibited from approving them…”

For NPR, Rachel Treisman reports that in 2018, another lawsuit threatened the DACA program; the same judge, Andrew S. Hanen ruled against the program; and, in 2020, the program was upheld by the U.S. Supreme Court.  Now, “Some two years later, following the Supreme Court ruling and a series of motions and arguments in the Texas case, Hanen directed the involved parties to bring their claims before him again.”

CNN‘s Elie Honig explains the difference between the 2018 and the current case: “Just last year, DACA survived an existential legal challenge when the Supreme Court, by a five to four majority, rejected the Trump administration’s effort to repeal the Obama-era executive action that created the program. The Court ruled that while one president generally has broad authority to modify or repeal the executive action of a prior president, such action still must comply with certain administrative procedures. The Court found the Trump administration failed to follow these guidelines because it never offered a ‘reasoned explanation for its action’… (T)he… new case involves the underlying constitutionality of DACA itself. Judge Hanen ruled that DACA is unconstitutional because it was created by executive action rather than legislation.”

In the current case, the NY Times‘ Jordan reports, “Texas led the effort to terminate the program, and was joined by Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina and West Virginia.  Officials in those states had argued that the program was improperly adopted and left them with the burden of paying for education, health care and other benefits for immigrants who remained in the country under DACA’s protections.”

Judge Hanen’s decision last week will likely be appealed. Treisman reports for NPR, “One day after a federal district judge in Texas ruled against the Deferred Action for Childhood Arrivals program, President Biden said the Department of Justice intends to appeal the decision.”

The case could be overturned by a higher court on appeal or could become irrelevant if Congress were to agree on legislation to protect the rights of DREAMers. The National Immigration Law Center responded to last week’s ruling by federal Judge Hanen by pointing out that, “DACA is a hugely successful and transformative policy with overwhelming public support.” And despite dysfunction in a polarized Congress, it is possible that some agreement can be reached on DACA: “The House of Representatives already passed the bipartisan Dream and Promise Act in March, and this week Senate leadership included a pathway to citizenship as part of its budget resolution.”

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Actions Last Week Extend the Student Loan Debt Cliff and Protect DACA

There is a lot to worry about right now—an unhinged President who has given up governing, a divided Congress, a raging pandemic, and, so far at least, Congressional failure to pass an economic relief bill as the COVID-19 recession intensifies.

Two developments last week should, however, be seen as hopeful. Both will protect vulnerable young people through the Presidential transition and into the Biden administration, when it is expected that policies will be revised.

Student Loan Debt Cliff Extended until January 31st to Protect 41 Million Borrowers

Last Friday, Betsy DeVos extended a COVID-19 moratorium on the collection of student loan payments, a moratorium that had been expected to expire on New Years Eve. The moratorium on student loan payments began with the CARES Act and last summer had been extended by President Trump’s executive order until December 31.

Politico‘s Michael Stratford reports: “The Trump administration on Friday granted an extra month of student loan relief to the 41 million Americans who have been benefiting from a freeze on monthly payments and interest that was set to expire at the end of the year. The relief was set to expire on Dec. 31, but will now end on January 31. The last-minute extension averts what could have been a potentially chaotic resumption of payments just weeks before President-elect Joe Biden takes office…  Roughly 33 million of those borrowers have had their payments paused, and the Education Department has stopped seeking to collect from the 8 million other borrowers who were in default.”

Back in November, Stratford warned about the chaos that would happen in January if the Trump administration had failed to extend the loan payment freeze: “Biden could waive his own executive wand once inaugurated… The intervening weeks of limbo (if the Trump administration had failed to extend the deadline) could cause mass confusion and uncertainty for borrowers.  For the incoming president, the economic and administrative mess could (have taken) months to untangle, consuming the early days of his Education Department.”

Federal Court Orders the Restoration of the DACA Program

Last Friday, a federal judge ordered the Trump administration to restore the Deferred Action for Childhood Arrivals (DACA) program to its original form as established by President Barack Obama by executive order in 2012.  The Trump administration has made several efforts to destroy the program which offers protection for adults who were brought as children illegally to the United States by their immigrant parents.

These children, known as Dreamers, have grown up in the United States with their right to public education protected by the U.S. Supreme Court in Plyler v. Doe in 1982.  After high school, however, they have too often been denied college scholarships and even in-state tuition along with protection from deportation and any path to citizenship. DACA does not offer a path to citizenship for these young people, but it provides at least minimal protections—a two year (renewable) promise of deferral of deportation, eligibility to apply for a work permit, and in some state the right to qualify for a drivers license.

In a press release on Friday, The National Immigration Law Center (NILC) announced last week’s federal court decision: “Today, in the Batalla Vidal v. Wolf lawsuit, a federal court ordered the Trump administration to restore Deferred Action for Childhood Arrivals (DACA) to its 2012 original form—reopening DACA to first-time applicants, restoring work authorization and renewals to two years, and making travel on advance parole more widely available to DACA recipients”

The new decision rests on the fact that Chad Wolf, who last summer issued a memo restricting the program, had never been confirmed as Acting Secretary of the Department of Homeland Security. NICL explains: “This decision follows the court’s finding that the July memo issued by Chad Wolf, who claimed to be the acting secretary of Homeland Security, was issued without legal authority because he was unlawfully appointed. In addition, the court had also granted the plaintiffs’ request to be certified as the representatives of a nationwide class of approximately one million DACA-eligible individuals across the country.”

NILC provides a brief history of the Trump administration’s most recent attempt to destroy the DACA program: “After the U.S. Supreme Court in June (2020) struck down the Trump administration’s unlawful attempt to terminate DACA, another federal court in Maryland ordered the government to restore DACA to its original terms. Instead, Chad Wolf, purportedly serving as the acting secretary of Homeland Security, issued a memorandum in July prohibiting first-time DACA applications, cutting renewals from two years to one, and drastically curtailing the ability of DACA recipients to travel abroad….  In August, DACA-eligible youth, first-time applicants, and DACA recipients filed a legal challenge against the July 2020 memo.”

The NY Times‘ Caitlin Dickerson and Michael D. Shear explain that DACA currently protects over 800,000 people, but that, “As many as 300,000 new applicants could now be eligible, according to the lawyers who pushed for the reinstatement.” Applicants must have a high school diploma or a G.E.D. or have served in the military, and they must not have a criminal record.  Dickerson and Shear explain that the DACA program affects far more people than the individuals who are granted protection: “The program has had generational impact. Researchers estimate that 250,000 U.S.-born children have at least one parent who is enrolled in DACA, and that 1.5 million people in the United States live with a beneficiary of the program.”

Last week’s decision may, of course, be appealed, but it keeps the Dreamers’ cause alive and serves to remind us all of the cruelty of the Trump administration’s immigration policy.

Dickerson and Shear report that Dreamers and their advocates  look to expanded protection under the Biden administration: “President-elect Joseph R. Biden, Jr. has vowed to restore the DACA program when he takes office, but a legislative solution that would permanently allow the Dreamers to live and work legally in the United States remains elusive, leaving their fates to the shifting political winds in Washington… But Mr. Biden is certain to face intense pressure from immigrant groups to fight for a broad overhaul of the nation’s immigration laws that would take care of the Dreamers and millions of other undocumented immigrants.”

Trump and DeVos Target Dreamers by Denying Access to Coronavirus Relief Fund for College Students

When it passed the CARES Act to provide coronavirus relief, Congress included funds to be used by colleges and universities for emergency grants to help students whose lives were disrupted when the schools were shut down without warning. Although Congress provided considerable latitude by leaving it up to the schools to identify the students most in need, Betsy DeVos and the U.S. Department of Education have now set guidelines for the allocation of the funds. Dreamers cannot qualify.

The NY Times’ Erica Green explains: “The funding is part of $12.6 billion allocated directly to colleges and universities under Congress’s $2 trillion coronavirus stabilization law to help them recoup financial damages caused by the pandemic. Half of those funds are supposed to go directly to students affected by campus closures. In the coming weeks, schools are expected to award emergency relief grants to students to pay for expenses like food, housing, child care and technology. The stimulus law, called the Coronavirus Aid, Relief and Economic Security Act, or CARES Act, directs the secretary to distribute the stimulus funding to colleges in the same manner the department distributes other financial aid. But it did not explicitly define which students are eligible. Undocumented students do not qualify for federal financial aid funds, but the emergency grants do not fall under that category.”

Despite that Congress left latitude for colleges and universities to award funds to the students their staffs deem most in need, on Tuesday, Betsy DeVos provided specific guidance about how colleges and universities can allocate the funds.  Green explains: “Education Secretary Betsy DeVos ordered higher education institutions to dole out more than $6 billion in emergency relief only to students who are eligible for federal financial aid, including U.S. citizens or legal residents. The directive effectively excluded tens of thousands of students who are living in the United States under the Deferred Action for Childhood Arrivals, or DACA program, an Obama-era policy that protects hundreds of thousands of immigrants brought to the United States illegally as children.”

The Washington Post‘s Daniel Douglas-Gabriel reports that more than a million college students will be denied help, including Dreamers and international students: “Collectively, that is at least 1.5 million college students, according to the latest available data.  And that is not accounting for others who could be left in the lurch because of the way the guidance is written.”

Dreamers are young people who were brought as infants and toddlers to the United States by their undocumented parents. They have lived their entire lives in the United States and graduated from our public schools. Many of them have little familiarity with the the countries where they were born; most speak English as their primary language.  Attending college has been difficult for Dreamers for decades.  A growing number of states over recent years have allowed these students to pay in-state tuition at state universities and to qualify for state college scholarships, but some states continue to deny these students the right to in-state tuition and scholarships. Dreamers, many of whom have completed college, are living and working in communities across the United States. They pay taxes and contribute to the economy and in myriad ways to our society.

Under a provision of the 1996 welfare reform law, the federal government has denied Dreamers access to Pell Grants and  federal college loans. Douglas-Gabriel reports: “Higher-education leaders and advocacy groups had hoped the broad language of the CARES Act provision left open a window for colleges to help undocumented students receiving immigration benefits under the Deferred Action for Childhood Arrivals…. Despite a 1996 welfare-overhaul law barring such students from federal assistance, some thought the provision in the stimulus law could supersede the prohibition.”

Douglas Gabriel quotes Sara Goldrick-Rab, professor of higher education policy at Temple University, criticizing DeVos’s action because grants for vulnerable students under the CARES Act are not the same as federal financial aid: “The authorizing legislation and the certification agreement clarify that this is not Title IV aid… But that didn’t stop Education Secretary Betsy DeVos from waiting until the last minute and then unnecessarily excluding some of the most vulnerable individuals from this support. It is nothing short of cruel and unnecessary.”

Dreamers are particularly vulnerable right now because the fate of the Deferred Action for Childhood Arrivals (DACA) is in question.  Douglas-Gabriel reminds us: “President Trump has moved to end the program, but that effort is awaiting Supreme Court review.”

Arizona Supreme Court Denies In-State Tuition for Dreamers

This morning I am thinking about higher education for Dreamers, students who were brought here as young children by their undocumented parents, students who have grown up in our communities but who have been relegated to the shadows without protection of significant rights by law.  The term “Dreamer” comes from the name of the law to protect their rights—a law whose passage these young people have been seeking now for almost two decades, the Development, Relief and Education for Alien Minors (DREAM) Act.

I first learned about the academic challenges these students face nearly twenty years ago from a high school counselor in Arizona who explained to me that the valedictorian at her school could not qualify for in-state tuition or a college scholarship to a public community college or university in her state.  Neither could such a student qualify for a Pell Grant or a federally guaranteed college loan.  The counselor was beside herself; she didn’t know where to turn to find help for this student. At that time the lack of protection for these students was unknown to me, and I was shocked.

Since that time, eighteen or so states have created their own laws to allow these students to matriculate with their peers (and pay the same tuition) at their state colleges and universities. But the right is still regularly contested as legislators try to block these laws and as they are tested in court.

To protect undocumented young people from deportation, President Barack Obama established the Deferred Action for Childhood Arrivals (DACA) program in 2014. To qualify, a young person must have arrived in the United States before 2007 and have met several other conditions. Although President Obama protected Dreamers from deportation and created their right to drivers licenses and work permits, however, under federal law he was unable to establish their right to in-state college tuition or federal student loans or grants.

On Monday of this week, the problem of a state’s denial of in-state college tuition once again made the news.  The Arizona Supreme Court upheld an appeals court decision denying Dreamers’ right to Arizona in-state tuition.  The Washington Post‘s Samantha Schmidt reports: “The Arizona Supreme Court on Monday ruled that young immigrants protected from deportation under an Obama-era program will no longer be eligible for in-state tuition at the state’s public colleges. The court unanimously agreed with the Arizona Court of Appeals, which ruled that federal and state laws do not allow Maricopa Community Colleges to grant in-state tuition to Deferred Action for Childhood recipients, also known as ‘dreamers.'”

The difference between in-state and out-of-state tuition will prevent a number of students from continuing their education. Schmidt explains: “The decision means that Arizona college tuition costs could double or even triple for DACA recipients. In-state tuition for the next school year at Arizona State University, for example, is $9,834, while nonresident tuition is $27,618…. Arizona residents pay $86 per credit hour at the Maricopa Community Colleges, while nonresidents pay $241.”

In a short update from Fronteras, Jorge Valencia explained on Monday: “The unanimous ruling from the seven-member court stems from a lawsuit brought by the Maricopa Community Colleges District, which wanted to give in-state tuition to students who had been brought to the country illegally as children.”  Maricopa County encompasses greater Phoenix.

In a policy brief, Student Affairs Administrators in Higher Education (NASPA), explains federal law as it applies to in-state tuition for Dreamers. According to NASPA, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) denies the right to in-state tuition. The language is confusing: “(A)n alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or political subdivision) for any postsecondary education benefit unless a citizen or a national of the United States is eligible for such a benefit… without regard to whether the citizen or national is a resident.”  This statement would seem to mean that any state with different in-state and out-of-state tuition rates could not grant in-state tuition to a young person who is a resident of the state but who lacks U.S. citizenship.

NASPA then explains how a number of states states have justified their policies that do grant in-state tuition to Dreamers:  “(S)tates have argued that in attempting to stipulate tuition requirements, the federal policy infringes on a fundamental right of the states, and a number of states have instituted policies which determine state residency regardless of immigration status, using instead location of high school attendance as the primary indicator.”

The National Conference of State Legislators (NCSL) explains further: “Supporters of the legislation argue that the requirement to receive in-state tuition is based on high school attendance and graduation, not residency, and so it is not in conflict with IIRIRA.”

In a 2015 policy brief, NCSL identifies 18 states which have, since 2001 granted in-state tuition for undocumented graduates of their states’ public high schools: California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oklahoma, Oregon, Texas, Utah, Washington, and Wisconsin.  In the same document, NCSL names three states that have at one time or another specifically prohibited the granting of in-state tuition for undocumented students who are graduates of their high schools: Arizona, Georgia, and Indiana.  NCSL adds, “Alabama and South Carolina go one step further and prohibit undocumented students from enrolling at any public postsecondary institution… At lest five states—California, Minnesota, New Mexico, Texas and Washington—allow undocumented students to receive state financial aid.”  Some states have given their Boards of Regents permission to grant in-state tuition; these include Rhode Island, Hawaii, and Michigan. Virginia’s attorney general has granted in-state tuition to students enrolled formally in DACA.

The National Conference of State Legislatures adds that the right to free public K-12 education was guaranteed in a 1982 decision of the United States Supreme Court: “Due to the landmark 1982 Plyler v. Doe U.S. Supreme Court decision, states are required to provide all students with K-12 public education, regardless of students’ immigration status.  Although the court did not declare education a fundamental right, it was determined that a ‘public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage; the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological well-being of the individual, and poses an obstacle to individual achievement.’ ”

I believe this is a moral issue. What kind of society would deny the kind of basic rights we all take for granted to young people who have lived for almost their entire lives in our communities? These young people are our own children’s peers.  In the language of the decision in Plyler v. Doe, doesn’t the deprivation of higher education also take an inestimable toll on the social, economic, intellectual, and psychological well being of the individual, and doesn’t higher education also play a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage?

The Washington Post‘s Schmidt reminds readers that the news about the Arizona Supreme Court’s denial of in-state tuition “also comes as the DACA program as a whole is in limbo. The Trump administration planned to phase out the program and rescind work permits for hundreds of thousands of DACA recipients beginning March 5.  But federal district judges in California and New York issued nationwide injunctions blocking these plans.” President Trump made full-funding for his border wall a condition Congress must meet before he claimed he would sign a bill extending DACA, but when Congress promised the funding, the President changed his mind and demanded all sorts of further restrictions on legal immigration. Dreamers face an unknown and precarious future.

DACA Fight Symbolizes Fear that American Life Has Become a Mere Zero-Sum Competition

Why is the DACA crisis a topic for a blog on public education?

This is the impasse in Congress, exacerbated by President Donald Trump’s flip flops—saying he’ll sign any compromise Congress presents to him to protect so-called Dreamers from deportation—then rejecting any compromise that fails to include a number of other priorities of his own including the border wall and outright bans on other kinds of legal immigration long accepted as enriching our communities.

Young people who call themselves Dreamers were brought to the United States as young children without documentation. They have been raised in our neighborhoods and promised an education through 12th grade in our public schools.  In 1982, the U.S. Supreme Court upheld Dreamers’ right to a K-12 public education under the protection of the 14th Amendment in a decision known as Plyler v. Doe.  Many of these young people came to the United States as babies and toddlers; they may neither remember their parents’ native country nor speak its language.  These young people include high school valedictorians, honor students, musicians, athletes, artists and lots of school teachers.  Until 2012, when President Barack Obama established the Deferred Action for Childhood Arrivals—DACA—our society forced them to live in the shadows.

Access to higher education has been a major obstacle to these young people. It used to be hoped that the federal government would protect their right to in-state college tuition and access to Pell Grants and federally backed student loans. Lacking these protections, the 2012 DACA at least protected their right to avoid deportation and qualify for a two-year renewable work permit.  Last September, President Trump rescinded DACA protection, saying he would begin to phase out the program after six months—on March 5, 2018. Last month, however, on January 9, a federal court in San Francisco issued an injunction to reinstate the DACA program and at least stop the clock on its pending phase out.

Since last September, when he announced the phase out of DACA, the President has called on Congress to come up with a long term solution, claimed to “love” the DACA kids, promised to sign a compromise, and then bluntly refused to consider any of the plans on which Congress has shown signs of compromising. A danger is that any kind of solution is now lost in a tangle of Congressional chaos, dysfunction, and other pressing issues on the Congressional agenda.

I believe that the debate about DACA is an appropriate subject for this public education blog because it is about our society’s responsibility to the Dreamers who live among us, study in our public schools, and work among us.  According to Greg Sargent of the Washington Post, there may be 1.8 million of these Dreamers who wait in limbo as the President refuses to work with Congress to enact a compromise that would protect them.  While, according to Sargent, 81 percent of Americans favor protection for Dreamers, an extremist minority including key advisors to the President and many in the House Freedom Caucus hold tight to an ethos of individualistic competition and believe personal success is a zero sum game.  Somehow opponents of DACA believe recipients of DACA protection will be successful, and their success will limit the chances of native-born American young people.

Certainly the fathers of our system of public schools understood society and education very differently. Schools create educated citizens, they believed, and it is society’s responsibility to serve all children in order not only to enrich children’s personal lives, but also to benefit society as a whole.  Here is John Dewey from The School and Society, published in 1898: “What the best and wisest parent wants for his own child, that must the community want for all of its children… Only by being true to the full growth of all the individuals who make it up, can society by any chance be true to itself.”

Benjamin Barber, the political philosopher, explored the ideals that over time have been broadly accepted about the role of public schools in the United States.  In An Aristocracy of Everyone, Barber confronts those who believe that life is a competition of winners and losers— where another’s success might result in one’s own or one’s child’s failure: “This book…. assumes that every human being, given half a chance, is capable of the self-government that is his or her natural right, and thus capable of acquiring the judgment, foresight, and knowledge that self-government demands. Not everyone can master string physics or string quartets, but everyone can master the conduct of his or her own life. Everyone can become a free and self-governing adult… Education need not begin with equally adept students, because education is itself the equalizer. Equality is achieved not by handicapping the swiftest, but by assuring the less advantaged a comparable opportunity.  ‘Comparable’ here does not mean identical… Schooling is what allows math washouts to appreciate the contributions of math whizzes—and may one day help persuade them to allocate tax revenues for basic scientific research… The fundamental assumption of democratic life is not that we are all automatically capable of living both freely and responsibly, but that we are all potentially susceptible to education for freedom and responsibility. Democracy is less the enabler of education than education is the enabler of democracy.” (An Aristocracy of Everyone, pp. 13-14)

Barber would have appreciated Erica Green’s NY Times profile of Karen Reyes, an Austin, Texas preschool teacher who specializes in education for deaf children.  Ms. Reyes is a Dreamer: “Ms. Reyes was brought to the United States from Monterrey, Mexico, by her mother at age 2. When she thinks of home, she thinks of the only one she can remember, in San Antonio… where she and her grandmother would pick pecans from a tree in the front yard. Her childhood was ‘all-American,’ she said, recalling late afternoons at marching band practice, at the Y.M.C.A. or selling Girl Scout cookies…. (H)er mother was strict.  When she was 14, she found out why.  Her friends wanted to take a shopping trip to South Padre Island, then Laredo, on the Texas border with Mexico, but her mother forbade her from going because if she came upon an immigration checkpoint, she would not have the paperwork to pass.  ‘It changes the trajectory of your life,’ Ms. Reyes said.  The barriers of being undocumented became more apparent after that—especially in applying to college. But with teachers’ help, she secured private scholarships for a graduate school program for special education teachers who wanted to teach the hearing-impaired. She received her master’s degree from the University of Texas at San Antonio….”

Reyes is among at least 9,000 school teachers now contributing to our society, paying taxes, waiting for some resolution of the DACA crisis, and hoping for confirmation they will have a future here in the United States, the only country they know.

Government Confusion and Dysfunction Increases Insecurity for Children, Families, and Schools

Life is filled with unknowns and eventualities we cannot control, but it used to be that we could expect the core functions and protections of government to be more or less predictable.  For twenty years now, parents whose jobs did not provide health insurance but who earned too much to qualify for Medicaid have been secure, knowing they could cover their children through the Children’s Health Insurance Program, a federal program administered by the states.

And in 2012 President Obama created the Deferred Action for Childhood Arrivals (DACA) program to protect the young people who were brought here as babies or toddlers by their undocumented immigrant parents. DACA ensured these young people could at least qualify for a driver’s license, secure a work permit, and know they would not be deported as they matured into young adulthood.

We seem to live in a time of diminished expectations. Ten or fifteen years ago, the DREAM Act was additionally aimed at protecting the DREAMERS’ right to higher education—to qualify for in-state college tuition and be able to apply for a Pell Grant or a federally protected college loan. While those aims became politically unreachable, at least President Obama was able to ensure through DACA that the estimated 800,000 DREAMERS have been protected from deportation and granted the right to earn a living in the society where they have grown up and been educated in K-12 public schools.

Since last September, however, when President Trump’s Department of Homeland Security rescinded DACA protection, all this has become uncertain for DREAMERS. Days later President Trump himself tweeted his support for DACA, and announced: “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do).”  Today, despite much talk, the future of DACA remains in question. We watched Trump’s televised negotiation with Congress on Tuesday only to wonder what the President’s confusingly contradictory statements might mean, whether a hopelessly split Congress can possibly compromise, and how the policy confusion is affecting DREAMERS who are simply trying to live normal lives.  Education Week estimates that about 20,000 DREAMERS are employed today as school teachers.

Then, later on Tuesday night, we learned that a federal judge in San Francisco has blocked the Trump administration’s six-month phase out of DACA that began last September.  Here is Derek Hawkins of the Washington Post: “U.S. District Judge William Alsup… blocked the administration’s attempt to phase out Deferred Action for Childhood Arrivals, the Obama-era program that protects young undocumented immigrants from deportation.  Alsup was tasked with, among other things, determining whether it would serve the public interest to leave DACA in place while litigation over the decision to scrap the program proceeds. On this point, he had an easy answer: Trump himself had expressed support for DACA on Twitter in September, just days after Department of Homeland Security officials rescinded it. ‘Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!'”

The words Hawkins quotes from in Judge Alsup’s order seem to summarize where we are as a country—the new level of uncertainty with which DREAMERS are living—and a new level of dysfunction in the federal government:  “We seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended… For the reasons DACA was instituted and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation.”

Fortunately for DREAMERS, the Constitution provides checks and balances—in this case the judiciary. Hawkins continues his analysis: “In litigation over Trump’s executive actions, no ruling seems to be complete without a section explaining how Trump’s tweets and public statements undercut the administration’s legal arguments… This is new territory for federal judges, according to Niels Frenzen, an immigration law professor at the University of Southern California. ‘We’ve never had a president tweeting like this… You have these extreme public statements that are shedding light on the motivation of the president in regard to why he is directing Cabinet secretaries to engage in these actions. The courts are saying these are fair game.'”

So… DREAMERS can take a deep breath, at least while a legal challenge to the phaseout of DACA moves forward.

Does this mean that Congress will stop negotiating on a way to address the needs of the DREAMERS—that DACA will no longer be a bargaining chip in the contentious battle over the continuing budget resolution that must be passed in the next two weeks to keep the government running?  Does this mean Congress will forget about the 800,000 DREAMERS because Senators and Representatives have so much other chaos to deal with?  Probably. Nobody knows.

And now for low income families and children there is another unknown—this time due to Congress’s own dysfunction and inability to compromise. The Children’s Health Insurance Program (CHIP)—which Congress had allowed to lapse at the end of September—seems to be out of money even though everybody had been told it had been fixed for the moment. In December, when Congress passed an emergency continuing budget resolution, it added a relatively small infusion of cash to protect CHIP—until March when Congress would again try to find a way to keep CHIP alive. Last Friday, Kaiser Health News published this warning: “Some states are facing a mid-January loss of funding for their Children’s Health Insurance Program… despite spending approved by Congress in late December that was expected to keep the program running for three months, federal health officials said Friday. The $2.85 billion was supposed to fund state’s CHIP programs through March 31.  But some states will start running out of money after Jan. 19, according to the Centers for Medicare & Medicaid Services. CMS did not say which states are likely to be affected first. The latest estimates for when federal funding runs out could cause states to soon freeze enrollment and alert parents that the program could soon shut down.  The CHIP program provides health coverage to 9 million children from lower-income households that make too much money to qualify for Medicaid.”

The NY Times editorial board spoke to this issue on Tuesday: “CHIP was created in 1997 and has helped halve the percentage of children who are uninsured. It has been reauthorized by bipartisan majorities of Congress in the past. But Republican leaders in Congress all but abandoned the program last fall and devoted their time to trying to pass an unpopular tax bill that will increase the federal debt by $1.8 trillion over the next decade… By contrast, CHIP costs the federal government roughly $14.5 billion a year, or $145 billion over 10 years. Republicans have held children’s insurance hostage to force Democrats to accept cuts in other programs.”

What has become the norm in Washington—in the Trump administration and in Congress—is dysfunction and rancorous fighting  that makes life more uncertain for America’s most vulnerable families, young people, and children. This kind of uncertainty is a public school problem as well, as 50 million of America’s children—many of them living in poverty and financial insecurity—bring the anxiety they absorb at home with them to school each day.

Trump’s Cancellation of DACA Is Short-Sighted and Morally Reprehensible

President Donald Trump announced on Tuesday that he has cancelled DACA, the Deferred Action for Childhood Arrivals program which has protected young people brought to this country as children, children who, before DACA, had been forced to live in the shadows without any protection against deportation.  The majority of these young people arrived as preschoolers, have grown up in the United States, know no other country, and speak English as their primary language.

I first learned about the need for a DREAM Act ten years ago from a guidance counselor who had been trying to assist the valedictorian at her high school with college admissions.  This counselor had learned that her state barred undocumented adolescents from qualifying for in-state tuition at its state universities and made such students ineligible for college scholarships.

Dale Russakoff profiled the issue again last January in the NY Times Magazine.  Explaining that even President Barack Obama’s DACA program—instituted by executive order in 2012—failed to address the educational obstacles facing undocumented adolescents across many states, Russakoff profiles a student in Georgia, who, “was determined to go to college and medical school and fulfill her parents’ interrupted dream. In her junior year (of high school), Indira began researching college options… She was distressed to discover that Georgia barred undocumented immigrants from attending its top public universities and charged them out-of-state tuition at all others—triple the rate for citizen residents. She then turned to researching financial aid and learned that Congress barred her from accessing federal Pell Grants, loans, scholarships, and work-study jobs—the most common forms of assistance for low-income students.”  After a long struggle, this young woman finally located a path to college in another state and qualified for some financial assistance from a private foundation.

The DREAM Act, (Development, Relief, and Education for Alien Minors), which would have assisted the 800,000 children, adolescents and young adults who were brought to this country as children by their parents, has never passed Congress.  While the DREAM Act was intended to guarantee access to higher education, President Obama’s Deferred Action for Childhood Arrivals program, DACA, provided at least minimal protection: the promise that registered participants would not be deported, the right to hold a job, and the possibility eventually of citizenship.

Earning DACA protection was not easy. In a statement released from Randi Weingarten on Tuesday, the American Federation of Teachers lists the requirements established by President Obama’s executive order for young people to qualify for DACA: have entered the United States before an adolescent’s 16th birthday; pass a stringent background check; meet educational or training criteria; and pay a $495 application fee.  AFT explains: “DACA status is not permanent; it is not a green card or a pathway to citizenship. It’s a temporary protective status renewable every two years. The average current age of DACA recipients is 26; the average age they came to the United States is 4 years old.”

When Attorney General Jeff Sessions announced on Tuesday that DACA will be phased out beginning March 5, 2018, he is quoted by the NY Times , which explains, “he was driven by a concern for ‘the millions of Americans victimized by this unfair system.’  Mr. Sessions said the program had ‘denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens to take those jobs.'”

Economists, however, have been quick to counter Sessions’ argument that DREAMERS are stealing scarce jobs in the U.S. economy.  Here is Nobel Prize winning economist Paul Krugman: “Trump’s decision to kill DACA… is, first and foremost, a moral obscenity: throwing out 800,000 young people who are Americans in every way that matters, who have done nothing wrong, basically for racial reasons.  But it’s also worth noting that Jeff Sessions just tried to sell it with junk economics, claiming that the DREAMERS are taking American jobs.  No, they aren’t…. DACA is very much a boon to the rest of the U.S. population, and killing it will make everyone worse off.”  DREAMERS’ “educational and behavioral profile… doesn’t resemble the average immigrant, let alone the average undocumented immigrant; they look like H-1B visa holders, that is, skilled immigrants we have specifically allowed in because they help the economy.  Beyond that, DREAMERS are young—which means that they help the economy… because they mitigate the economic problems caused by an aging population…. (A)s the population ages, there are fewer working-age members contributing taxes to pay for Social Security and Medicare. A cohort of relatively high-wage, highly motivated people mostly in their 20s, likely to pay lots of taxes for decades, is exactly what the doctor ordered to make that issue less severe… So this… will make everyone worse off.  There is no upside whatever to this cruelty, unless you just want to have fewer people with brown skin and Hispanic surnames around. Which is, of course,what this is really all about.”

Opposition to passage of a DREAM Act represents narrow, fearful and selfish thinking. The idea that life in the United States is a cut-throat competition among our children—that if your kid gets a good education, she might edge mine out of entrance to a particular college or out of a job later in life—represents an extreme form of the ideology of individualism. Educational opportunity and the American Dream are not a zero sum game. People who oppose the DREAM Act also are likely to blame children for the so-called sins of their fathers. The leaders of our nation’s religious communities released a joint statement on Tuesday castigating Trump’s cancellation of DACA on the most basic moral grounds.

Senators Dick Durbin (D-IL) and Lindsey Graham (R-SC) have introduced a bipartisan DREAM Act 2017.  Please contact your U.S. Senators and your Congressional representative and ask them to support this bill, which would reinstate basic protection for DREAMERS from deportation.  The American Federation of Teachers invites you to use AFT’s action alert.

In a New Yorker satire, Eight Hundred Thousand People with Dreams to Be Deported by One with Delusions, Andy Borowitz captures the irony of the President’s stated reason for canceling DACA: “‘The people I am deporting are parasites who have exploited our economy,’ the man, who has declared bankruptcy six times, said.”