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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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.