No Brown Towns: Anti-Immigrant Ordinances and Equality of Educational Opportunity for Latina/os

Abstract

"The right to education in the environment of a multi-racial community seems equally fundamental." Spencer v. Kugler, 404 U.S. 1027, 1028 (1972)(mem.)(Douglas, J., dissenting).

In 1972, the United States Supreme Court in Spencer v. Kugler affirmed New Jersey's statutory scheme compelling school district boundaries to coincide with those of the State's political subdivisions. In writing a dissent to the Court's affirmation of the lower court opinion that such segregation was "de-facto" and not subject to a constitutional violation, Justice William O. Douglas highlighted the pernicious influence of local government boundaries in creating unequal and inferior education for the nation's Black, Latino, Asian American, and American communities. As Justice Douglas dissent suggested, the tremendous ability of local municipalities to control the racial and ethnic composition of their local and sub-local communities through seemingly neutral and "de-facto" means put into question the Supreme Court's post-Brown v. Board of Education condemnation of the inferior education received by a large majority of the nation's increasingly multiracial student body.

Over 30 years after Justice Douglas's dissent in Kugler, over one-hundred local municipalities across the country have enacted so-called "anti-illegal immigration" ordinances to prevent largely Latin America migrants in the United States from moving into, settling, and living in their communities. Through the prohibition in the leasing or sale of real property to an undocumented immigrants, sanctions for employers who hire undocumented immigrants, and or English-only provisions in the provision of municipal services; such ordinances have racialized municipal, and by extension school boundaries in profound ways. As one Mayor of a Wisconsin community fundamentally transformed by Mexican migration made clear: "I would like to inform you of what is coming. If you employ illegal immigrants or rent or house illegal immigrants, there will be consequences. They are not welcome here."

Accordingly, this article explores the impact of such ordinances on the racialized reproduction, concentration, and ultimate exclusion of Latino students from equal educational opportunities in public schools. As my article explores, the desire for "better" and more "exclusive" schools animates much of the political will behind the enactment of such ordinances. Though such ordinances have been carefully crafted not to run afoul such decisions as Brown v. Board of Education or Plyler v. Doe, I suggest that the time is ripe to revisit the "de jure"/"de facto" distinction in American constitutional and educational jurisprudence. Indeed, disturbingly akin to many of the "sundown" ordinances enacted by many American communities in the first-half of the 20th century in response to an African American diaspora from the American South, today's "anti-Immigration" ordinances promise to render more impermeable and more pernicious residential segregation and educational inequity in an increasingly "brown" America.

Keywords: race, education, civil rights, latinos, local government, integration, immigration