Last modified: October 01, 2009.
HARVARD Latino LAW REVIEW
Nicole Diaz: I would like to introduce our moderator, Al Kauffman, currently with the Harvard Law School. He has a long history of work with the Mexican American Legal Defense Fund (MALDEF), including having served as a staff attorney and regional counsel with MALDEF in San Antonio. As a MALDEF attorney, he was lead attorney for low-income families and low-wealth school districts in Texas school finance cases. He was also a private practitioner in San Antonio and Dallas. He argued cases before the Texas Supreme Court,[1] and he has been an instrumental figure in many advocacy efforts in that state.
He was extremely active as an advocate for civil rights issues before the Texas legislature. He has received numerous awards from local, state, and national civil rights and education groups, and was selected by Texas Lawyer as one of the Ten Most Influential Lawyers in Texas. He will be moderating our panel on one of the most important issues facing our community today, which is immigration, post–September 11.
Al Kauffman: This is a panel about immigration, and our job is to try to summarize some of the major issues affecting Latinos.
We must examine the history of the relationship between the United States and its immigrants. I call it one of approach/avoidance, because, so many times in our history, this country has opened its arms to all immigrants, only to decide to expel them afterward. Many people were invited into this country to work, and were subsequently repatriated when the economy went bad. Americans used immigrants to do their farm work, to do their construction work, and to build their railroads, and then excluded them when they no longer needed them, or when they found cheaper labor in the form of a new immigrant group.
I want to provide some perspective on the issue of immigration and its relationship to other matters. Immigration is an extremely important issue for everyone in the United States, particularly for Latinos. It is, however, not the only issue. If Latinos get pigeonholed as merely being inter-
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ested in immigration and bilingual education, it deemphasizes and ignores the fact that other key issues affect our community, such as racial disparities in dropout rates, other educational challenges, and employment issues.
There are two topics that we would like to talk about today. The first is related to immigration reform—whether we need comprehensive reform of the immigration laws, what that would look like, what options would be available, and the tension between comprehensive reform and a more incremental process.
Second, the Latino community strongly supports measures to address security issues and provide security for our country, but at the same time, wants humane immigration rules. How may we accomplish both of those objectives simultaneously?
There have been proposals before Congress every session since I began working on this issue about thirty years ago. Some of these proposals eventually lead to major legislation. There were the Simpson-Rodino bills in the mid 1980s,[2] there was the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA)[3] in 1996, and there are many proposals now.[4] I think it is very important to try to put these into a broad perspective.
We will also look at the issue of socioeconomic development; more specifically, the ways in which socioeconomic development affects immigrant communities in general, and the Latino community in particular.
Finally, we will look at the effects of September 11 on the Latino community. We will explore the extent to which the Latino community and Latino immigrants have shared the experiences of September 11 enforcement with other immigrant groups, especially the Muslim and East-Asian communities.
We will start with Enrico Marcelli, who is a Foundation Health and Society Scholar at Harvard. He has a long record of looking at socioeconomic issues surrounding immigration. He will provide some background in this area, and also try to de-mythologize some of the stereotypes about the community.
We will also hear from Kathleen Culliton, who works with MALDEF in Washington, D.C. She is a lawyer who has worked with the Organization of American States and lived in South America. She has been very active on Capitol Hill, representing the Latino community on immigra-
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tion issues. She will talk about some existing legislative measures, and propose an agenda for what we would like Congress to do in the future.
Lastly, we have John Willshire-Carrera. He is an active practitioner who represents immigrants here in the Boston area, and also has a long history doing scholarly work in the area of immigrant representation. He will give us an idea of the ways in which all these policy issues play out at the local level.
Before we begin, I want us to remember that, like any immigrant group, Latinos comprise a diverse community, spread out across the United States. I come from south Texas, where almost all the Latino immigrants are from Mexico, although more recently, many are also coming from San Salvador. Newer immigrants assimilate extremely well into the existing community, which is already ninety percent Latino. Everybody fits in; everybody knows each other. You cannot easily distinguish the “undocumented” from the “documented.” There are also places, like North Carolina, which have very recent immigrant populations, and where relationships with the predominantly white local communities are very strained. People do not know each other; they do not know each other’s history. The immigrant community feels extremely isolated. Then there are areas, like Massachusetts, which have historically had many waves of immigration, and now have new immigrant communities, which have been met with a lot of anti-immigrant fervor.
Enrico Marcelli: I am not a lawyer; I am an economist. Most of my research focuses on estimating the number, the impact, and the integration of unauthorized Mexican and other Latino immigrants in California.
How does unauthorized residency status among Mexicans and other Latinos affect their well-being? By “well-being,” I am referring to labor market outcomes, access to medical care, access to public assistance, et cetera. I will discuss their probability of settling permanently in the United States, and the effects that their presence has on the well-being of other Americans. I say specifically, “other Americans,” because oftentimes we dichotomize immigrants and other groups in our society.
First, however, I will discuss the ways in which September 11 tipped public policy toward separating the “welcoming,” or service, function of the former Immigration and Naturalization Service (INS) from its enforcement functions. It is a move that emanated, at least to my knowledge, out of the U.S. immigration reform in its third and last report to Congress in 1997.[5]
The INS reorganization followed the recommendations of the U.S. Commission on Immigration Reform by separating the “welcoming” and the enforcement arms. The former was previously housed under Customs,
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and under the Department of Treasury. The enforcement side of immigration law was housed in the Department of Justice. The recommendation to split was, I think, enacted in March of 2003, with some complications.
The recommendation of the U.S. Commission on Immigration Reform was to take four different tasks—immigration enforcement, benefits, labor spendage and enforcement immigrant appeals—and put them into four different departments.[6] Prior to that time, that is, in 1997, these four tasks were divided between the Justice Department, the State Department, and the Labor Department. The argument was that they ought to be separated, because you would want to present one “face” at the border. You would want to “welcome” immigrants at the border, as opposed to performing any other function.
That was the recommendation in the 1997 report, but that is not exactly what happened. Instead, the dichotomist split that the Commission had recommended resulted in the “welcoming” function being put into what is now called the Bureau of Custom and Immigration Services (CIS). The enforcement wing was put into the Bureau of Custom and Border Protection (CBP), and the Bureau of Immigration and Customs Enforcement (ICE).
The “border” terminology has been dropped now, in favor of three- or four-word terms, or even more frequently, acronyms. Enforcement is further split into two categories. One, Customs and Border Protection, deals with the flow of goods and people at the borders. The second, Immigration and Customs Enforcement, brings together both Customs and former INS agents in the interior to work with issues such as workplace sanctions and enforcement. That is but a quick summary of the reorganization that occurred, and which I believe September 11 prompted, or at least made possible.
One can debate whether it is a fortuitous development or not, but this is, as I understand it, the organization of the new immigration system. It is not exactly what the Commission recommended, but somewhat similar. Turning now to what I am more familiar with, I will address how unauthorized status affects Latino immigrants, primarily in California. I would venture that the effects might not be too different elsewhere, but there is very limited research on unauthorized immigrants in the rest of the United States.
Unauthorized immigration is mainly thought of as a six-state phenomenon, but that is changing—or has changed—rapidly. Congress has requested numerous reports by the newly named General Accountability Office (GAO), formerly the General Accounting Office, to assess the state of national security in relation to border entry issues. There are, for example, repeated reports of situations in which unauthorized immigrants have had access to secure airport areas.
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Reports on visa management are a second example. And a third type of report relates to statistics on foreign-born residents. My main focus within this category is on the unauthorized immigrant contingent. Even before September 11, there was already movement toward trying to better estimate the size of the unauthorized population. To that end, the GAO has adopted a methodology that we developed in the mid-1990s and subsequently followed up on in 2001. It is a survey-based methodology, limited to Mexican immigrants in Los Angeles county.
Essentially, we never ask an immigrant directly, “What is your residency status?” Instead, we ask, “Are you or are you not a U.S. citizen?” Secondly, if they answer no to that, “Are you a legal permanent resident?” If they say yes to that, then we ask, “How did you obtain that residency status?” But if they say they are neither a citizen, nor a legal permanent resident, nor a green card holder, we will ask, “Are you a temporary visitor?” If not in one of those three categories, unless perhaps from El Salvador, an individual is probably an unauthorized immigrant. In this way, by looking to characteristics of that population, one can be placed into that residual category.
This in turn allows us to come up with predictors of who is unauthorized within larger public use samples, such as the census. What we and other demographers have estimated is that the unauthorized population has grown from about 3.5 million in 1990 to about 11 million as of March of this year.[7]
What should be emphasized here is that the proportion of immigrants arriving from Mexico and other Latin American countries has remained remarkably consistent, at about eighty percent. I am being somewhat evasive here, as this proportion increased by six or seven percent in the year 2000. That was a significant jump, but it has since started to decrease. I would argue, then, that it has remained quite constant when considered on the whole.
Based on my estimates from California, what I want to illustrate is not simply that the number of unauthorized immigrants has risen nationally, and the proportion of those from Latin American countries has remained fairly consistent, but from what we see in California, there has been an increase of between 61 and 75% in terms of numbers. Without going into the details of our methodology as demographers, it may be said that we essentially come up with ranges of estimates. What we see in this case is that the number of Mexicans and other Latinos in California has risen from about 1.2 or 1.3 million in 1990, to about 1.9 or 2 million as of 2002.
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What I wish to show is that whereas Proposition 187,[8] the Welfare Act[9] and the Legal Immigration Act[10] are associated with a relative flattening and even decline of the trend in unauthorized immigration in California, September 11 appears, at this point, not to have had such an impact. In fact, unauthorized immigration after September 11 continued the upward trend it had begun in the late nineties, even after September 11. Results related to how unauthorized immigrants affect other workers, how unauthorized residency status affects labor market outcomes, and whether such immigrants test positive for illicit drug use or engage in drug-related and economic crimes, have been collected. But the essential conclusion is that unauthorized residency status does not appear to affect the probability that one will settle permanently in the United States. Work I have done with Glen Cornelius of the University of California at San Diego has found that certain demographic characteristics, like being female, or enrolling in an institution of higher education in the United States, increase the probability of settling permanently in the United States. We have concluded that, contrary to popular myth, it is not unauthorized status per se, or even legal status generally, that influences whether somebody decides to settle permanently in the United States.
Instead, factors such as economic crisis in Mexico, demand in the United States for their labor, and the existence of friendship networks are the main influences on whether people settle here. In summary, unauthorized residency status does adversely affect whether Mexican immigrants are employed, and whether they earn higher wages. It also appears to adversely affect their access to needed medical care, according to our estimates. Unauthorized resident workers, in turn, do not negatively affect the labor market outcomes of other workers in California, with the exceptions of legal Latino immigrants, and possibly lower-skilled African American workers.
In closing, some important questions arise out of the issues presented here. One is, what is the relative impact of circumstances such as September 11 or similar events? Others center on research findings such as those presented, and how they relate to immigration policy formation. Also, what are the likely effects of the new Bush-Fox Amnesty Guest Worker program,[11] which was in the making before September 11, but was effectively stalled by the attacks? And finally, what of the newly reorganized Department of Homeland Security? What about the resources allocated among the three immigration-related branches of the newly
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created Department of Homeland Security? Are they sufficient? Are they misallocated? These and other related issues deserve continued attention.
Kathleen Culliton: Turning from socioeconomic to legal issues, my work is as a civil rights lawyer, and I will discuss the status of immigration law and Latino civil rights since September 11. At issue as well are several larger, very challenging public policy questions.
I work with MALDEF, which has kept its Chicano name in large part because most Latinos in the United States are Chicano. Also significant, though, is that much of the backlash since September 11, and many of the problems experienced around the country, have primarily impacted Mexican-Americans. I wish to make it clear, however, that we do represent all Latinos. MALDEF is based in Washington, D.C., and my own work relates to national immigration policy.
I personally live in a neighborhood that is largely Central American, and find it interesting to discuss different communities. Our area is called Salverse Unido, and consists of many Central American refugees. The name itself came from Oscar Arias,[12] and the neighborhood embodies a very interesting phenomenon in Washington, D.C. It is a place where national policy happens, and yet so often where the local is left out. It is encouraging, then, to follow a discussion of local issues.
MALDEF has been defending the civil rights of the nation’s Latinos for thirty-five years through public education, advocacy, and litigation. Notable in this regard is that, since September 11, over one hundred measures taken in the name of fighting terrorism have been anti-immigrant measures. However, these have not been the least bit effective at actually finding terrorists.
These anti-immigrant measures have not identified a single terrorist, but they have resulted in numerous civil liberties and civil rights violations. One area of particular concern is the increasing use of racial profiling by law enforcement officers. Arab and Muslim communities have been wrongfully targeted, and their civil liberties infringed, since September 11. While none of these policies has made America any safer, the increased use of racial profiling as a law enforcement tool has exacerbated the longstanding problem of its use in the Latino community through immigration enforcement.
Predictably, this affects not only Latino immigrants, but Latino citizens. The Latino community is one of mixed status, being forty percent immigrant.[13] For that reason, anti-immigrant measures like those taken have
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a disproportionate impact on its members. One example of such a measure is a change of policy regarding racial profiling. In 2003, for national security and immigration purposes, the Department of Justice adopted guidelines permitting exceptions to the general rule against racial profiling.[14]
Last year, the Department of Homeland Security, which is now in charge of immigration, unfortunately adopted the same policy.[15] It now appears in training manuals for all immigration officers. As a new Border Patrol agent, one is told that one is not allowed to use race, ethnicity, religion or national origin in one’s work—unless, of course, one is working on national security or immigration matters. A long history of unconstitutional racial profiling along the southwestern border has only been exacerbated by this new policy since September 11.
In Washington, D.C., we work with a large coalition which emphasizes that racial profiling was not only wrong prior to September 11, but is still wrong now, post–September 11. It is worth emphasizing here that law enforcement officials are in agreement with our position that racial profiling does not help to find terrorists. We know that we should be looking for individualized, suspicious behavior rather than blatantly targeting entire classes or races. Other unwise anti-immigrant policies enacted since September 11 include the rounding up of Latino workers. One example of this type of aggressive enforcement measure is Operation Tarmac, which involved the rounding up of Latino airport workers.[16]
None of these measures, it should be repeated, has been successful in identifying any terrorists. Indeed, if immigrants—including legal, permanent residents who are rounded up as a result—posed too great a risk because of their immigration status to work in airport food services, one would think they could not be serving so honorably in the war in Iraq. Former Secretary of Homeland Security Tom Ridge has himself stated that unconstitutional profiling and enhanced immigration enforcement have become the new status quo against undocumented persons despite the fact that they pose no per se national security risk.[17]
Prior to September 11, immigration sweeps and raids were limited because of the likelihood of accompanying civil rights violations. Immigration enforcement’s first priority was to go after criminals and terrorists.
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This focus would seem even more important after September 11, but beginning in June 2003 with the Wal-Mart raids, the practice of sweeps against Latino workforces and communities has been vigorously renewed. In 2004, for instance, 11,000 Latinos on San Diego trolleys—immigrants and citizens alike—were questioned about their immigration status.[18] Less than one-tenth of one percent, it turned out, were immigration violators.
Even in Washington, D.C., a city that has a long tradition of welcoming immigrants, Latinos have been stopped and questioned about their immigration status on Columbia Road, in the heart of the Latino community. Meanwhile, white and black pedestrians proceeded uninterrupted during the same sweep. Also affected have been immigrant women. A recent NOW Legal Defense survey revealed fear of deportation as the most significant reason that battered immigrant women are much less likely than non-immigrant women to report abuse.
This reality has been exacerbated by state and local law enforcement officers threatening to enforce civil immigration laws, in the name of fight-ing the war against terrorism. Such action on the part of law enforcement officials is in direct contradiction to the legal protections for immigrant women set forth in the Violence Against Women Act (VAWA).[19] Considering that community policing is a very valuable tool for public safety, many police departments and national police associations have issued public statements indicating their intention of becoming involved in civil immigration enforcement. Nonetheless, former Attorney General Ashcroft and the 122 House co-sponsors of the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act[20] continue to misstate the law in this area.
These politicians continue to insist that state and local police have inherent authority to enforce immigration laws. The negative effects of this are reflected in a statement that was issued through a secret memo by former Attorney General Ashcroft, which stated that the inaccurate statements are responsible for substantial civil rights violations of the Latino population by local police. In May 2003, an example of this abuse occurred in Riverside, California, when local police officers demanded to see the drivers’ licenses of all Latinos working in an avocado grove. They harassed citizens, legal residents and undocumented immigrants alike, and threatened to turn them over to the Border Patrol. In this incident, nobody was driving. One undocumented immigrant ran, and was then assaulted by the local police.[21] The Riverside Sheriff told the police that it
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was department policy that officers should not be enforcing civil immigration laws, but the officers were confused by the statements of Attorney General Ashcroft. This incident shows that the new Attorney General should change this policy. It also illustrates why drivers’ licenses should not become immigration enforcement tools.
Current litigation[22] by the Puerto Rican Legal Defense and Education Fund (PRLDEF) in New York is proving that the DMV is confusing its functions with the job of the federal government with regards to immigration enforcement, and that this leads to numerous mistakes. It also leads to racial profiling. People who are untrained in immigration law tend to use inappropriate criteria to determine who should be questioned as to their immigration status.
Another way that post–September 11 practices have been harmful to the Latino community is in the context of immigrant detention. Abuses of post–September 11 detainees did not happen under the PATRIOT Act.[23] They happened in the context of immigrant detention, through the abuse of immigration law.
Immigration conditions, which were already abysmal prior to September 11, are unlikely to improve after the abuses seen with the September 11 detainees. Negative precedents have been set. For instance, last year in Passaic, New Jersey, dogs were used violently against detainees.[24] It should be mentioned that this type of practice is something that immigration advocates have known about for a long time. The New Jersey incident made national news. We know that conditions have been abysmal, and that there have been many abuses over a long period of time, yet the situation is very unlikely to improve in the current political context.
Other essential civil rights have also been put into question by post–September 11 policies against immigrants, including access to counsel, the right to know the charges, the right to bail, and the right to a defense. These are rights that belong to every person under the Bill of Rights, regardless of citizenship status. They are fundamental human rights that apply to every person within the United States, and they are being taken away from immigrants in the wake of September 11.
Human rights violations at the southwestern border have increased. Thousands have been detained and deported, but no terrorist suspects have been identified. Violence and deaths in the desert have also increased since September 11. MALDEF has filed two lawsuits against vigilantes at
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the border,[25] yet the Minutemen[26] continue to recruit for armed paramilitary-style groups to hold organized immigrant-hunts at the Arizona border. These vigilantes are tied to and financed by white supremacy groups.
Arizona has also recently passed Proposition 200.[27] Proposition 200 is just like Proposition 187 in California.[28] Proposition 187 would have made it illegal for the state of California to provide benefits to undocumented immigrants. MALDEF successfully litigated against Proposition 187 in California, because immigration enforcement is within the exclusive jurisdiction of the federal government.[29] States and localities are not supposed to engage in immigration enforcement. For that reason, if state officials discriminate in their determination of who can receive public bene-fits at the state level, that discrimination will be subject to strict scrutiny. This is the reason MALDEF won against Prop 187, and it is also the reason MALDEF won the Plyler v. Doe litigation, which provides access to public education for undocumented students.[30]
MALDEF has filed a lawsuit against Proposition 200 in Arizona, and may have to appeal it all the way to the Supreme Court this time.[31] It is not easy to win in the local federal court. At this point, MALDEF has lost the first round, but will continue to appeal. There are propositions similar to Proposition 200 in a dozen other states across the country. Their existence illustrates how the idea that immigration enforcement belongs exclusively to the federal government has been falling apart since September 11. Nonetheless, MALDEF remains hopeful, and will continue to fight.
Finally, it is important to touch on the issue of the backlogs. Many people think that immigrants are coming here in violation of the law. This is true to a certain extent, often due to the nature of the immigration system. What has happened historically, and especially lately with the Latino community, is that immigrants have not had meaningful access to legal status. For example, right now, first-priority family immigration for Mexican American families has a backlog of eleven years. That would apply to a U.S. citizen who wants to bring a spouse or a child from Mexico. The effect of the reorganization of the Department of Homeland Se-
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curity is that immigration is now seen through the lens of security, rather than as a means to promote family unity and family values. The fact that we are spending a lot of our resources on enforcement rather than services has also increased the backlogs. That is why we desperately need comprehensive immigration reform; people in our communities who are living in undocumented status are going through very difficult times. This has become a number-one priority for MALDEF, and every other national Latino civil rights group. We desperately need to have access to legal status to pull people out of the shadows and provide equal opportunity in America, a nation of immigrants.
John Willshire-Carrera: I know that there are many people thinking about immigration, and fighting for real changes that are inclusive of all of our communities. I think this is a very useful conversation generally, but it is also a very useful conversation for myself and my clients. I am a senior attorney with Greater Boston Legal Services,[32] and at times I head the immigration unit.
I am also a clinical supervisor for the Harvard Immigration and Refugee Clinic, and I have had the pleasure of working with a number of students from Harvard Law School over the years. I am also connected to the Refugee Law Center,[33] which has done a lot of work over the years on issues involving refugee and asylum rights for women and children. To begin with, I would like to state that I am originally from South America. I am Andean; I came here when I was fourteen; I am an immigrant.
I was undocumented for a short period of time. Like many, many other people in our communities, I am where I am now because of the civil rights movement, because of people around me, because I was supported by my family, because I was able to go to school and work. Over the years, I have come to recognize that this is my home; this is the place where I will fight for betterments. Also, I am American in the very broad sense—I am from the Americas, not just the United States. That is the perspective from which I interpret America. And because of my human rights work and my immigration work, I realize that I am a global citizen as well.
We as a Latino community are very much a part of global issues involving human rights, immigration, and a range of other, different issues. My fellow panelists have touched on so many things that I think that are important, and have made their points very succinctly. I will add a couple of comments onto each piece, and then speak from the perspective of somebody who is working on a day-to-day basis with immigrants, within his own community of immigrants, as well as working on a national and international level.
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To begin with, I work in legal services. And for many years, there were restrictions on the use of Legal Services Corporation money, which was federal money, for the representation of immigrants. I believe that stemmed from anti-immigrant struggles in the 1980s, which resulted in restrictions being imposed on the use of Legal Services Corporation monies. I came to this work in the 1980s, when in fact, legal services offices were receiving federal money and could still represent immigrants as long as they got monies from other places.
Then, in 1996, anti-immigrant feelings were strong and federal legislation was on the table, including IIRIRA. This brought significant, very negative changes for immigrants, including changes that restricted due process rights and defenses. Changes that, in many ways, complicated the situation for people, and negatively affected family unity, which is a very basic part of our social existence. Around that period of time, Congress barred the use of federal LSC money for the representation of immigrants. So my office, which was here in Cambridge, ended up having to give up all of its federal money in order to continue working with immigrants, which they did.
They did the right thing, and they merged with Greater Boston Legal Services, which did the same thing. Between the two organizations, there were over 150 staff members. They lost almost a third of their staff members in order to be able to continue doing what they considered to be real work for the community. There were other issues involved, but this was a huge part of it. This history affects not only us as immigrants, but our work in immigrant rights. And it keeps on going.
I would like to go back to IIRIRA. In my opinion, IIRIRA was a very important part of the beginning of what I see as a growing apartheid against immigrants in the United States. This phenomenon is also global, in the sense that countries around the world are no longer the nation states that we knew before. It is much more of a global economy. A real restructuring of the world is going on, through free trade agreements and the imposition of structural adjustment programs, among other things. A large number of people in the world are being forced out of their communities, and feel as though their world is coming apart around them.
I believe that policy changes provide one explanation for the large numbers of people coming into the United States from Central and South America right now. I think that, at many different levels, a decision has been made that there is a need to build walls to control the people. We now have a system of laws that is being expanded every day, such that the walls are getting higher and thicker, and more intrusive in everybody’s lives.
We have to deal with this new system. I think in order to deal with immigration, we have to make some very basic, structural changes. We have to think of things very, very differently, or face the possibility that we will end up where we were in the 1960s, the 1950s, and the 1940s, when there was significant discrimination against people of color. IIRIRA said,
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“Okay, we are going to give you amnesty. But we are going to prohibit employers from hiring people without work authorization, if they are not citizens or permanent residents.”
In essence, they were licensing work. That, in its own way, has created a dynamic which has really added to all of the problems that immigrants have in the United States. There are different versions; there are different ways of looking at this. But I think this is a very important part of it. In the early- to mid-1990s, they started criminalizing immigrants in many ways. They broadened the definition of what crimes make people removable, and prevent people from coming in when they adjust, or when they get their papers here. They also took away a lot of due process rights, and a lot of defenses.
September 11 was a situation that changed things in this country even more dramatically. As a result of September 11, we have a patriarchy, but we have many other changes taking place in immigration that really end up, in a sense, broadening and strengthening this apartheid against immigrants. Which brings us to today.
The work I do means that I have clients from all over the world. Basically, I do asylum and human rights work. I also do a lot of outreach to the communities with my office colleagues. Many of us are from different communities, and what we see is that the climate is probably worse now than it has been since we can remember. It is true that right after September 11 it was really, really dangerous. But I think what has happened is that the danger for a small number of people in the immigrant communities has now broadened, so that it now definitely affects all immigrants of color, and it also affects anyone who is seen as being different. The danger affects people in very broad ways, including those addressed by Katherine Culliton. The state of Massachusetts was very clear that undocumented kids have a right to go to school here, in public schools.
I worked on these issues in the early 1990s; in fact, after the Plyler v. Doe ruling was issued by the U.S. Supreme Court, I worked on a national project that dealt with these issues, and Massachusetts was used as a model. Massachusetts is no longer a model. There are so many schools in Massachusetts where people, for one reason or another, either decide that a child is an immigrant, or they dislike that person. They begin looking for the child’s passport, without knowing how to read a passport, or what visas are about. They just hear that everybody who is not a citizen or permanent resident is illegal, which means that they are not even human. As a result, a large number of kids have a very hard time getting into school.
The other side of the struggle is that there are a lot of very good people who are fighting these issues. We are lucky to have a very strong immigrant rights community in the Commonwealth of Massachusetts. People are fighting these issues, but the truth is, many children are spending a significant amount of time out of school. When they do get into school,
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they have already been labeled. They know it, and they are afraid of being called “illegals.” Their lifestyle changes as a result of this concern.
There are other issues that affect the daily lives of immigrants. Many immigrants have problems with drivers’ licenses. In response, some people might say, “It’s good that they’re going to stop those undocumenteds.” But this does not affect only the undocumenteds. These problems also affect permanent residents and citizens, especially people who look different, and others who, for some reason, are labeled as problematic. No one wants to be the person who lets in someone who is going to make trouble, so such a label can have a far-reaching effect.
Legal residents come into our office saying, “I have a problem; I can’t get a driver’s license. Without a driver’s license, I can’t get work authorization. If I’m not work-authorized, I’m going to get fired from my job.” People do get fired from their jobs as a result, and it is not an uncommon problem. I represent asylum seekers. People who are granted asylum have a right to live here, and a right to be automatically authorized to work here. Yet they have a very hard time getting their first documents, such as their social security card. The Social Security office is backlogged, and records can be disorganized. Sometimes the system works very well, but often there is a problem.
Often, they can get a social security card, but they cannot get a driver’s license; they cannot get a Massachusetts ID, and it goes from there. It becomes a very bad situation. In terms of immigration, what used to take three months is now taking six months, or a year, or two years. A large number of people who have a legal right to have status in the United States cannot get their papers through. There are people who have been waiting for their green cards for almost ten years. There are asylum seekers who have been granted asylum, who face waiting lists of seventeen years before they can expect to receive their green card.
Part of the delay has to do with the rule changes, and part of it has to do with the fact that, in re-organizing immigration, the government has decided to privatize part of what was INS. Many INS employees foresaw the changes, and they left the agency. Fortunately for us in this area, the people who are most committed to the work have generally ended up being the people who stayed, but they are overwhelmed. The new people coming in are not trained, and a lot of functions that were being done by INS officers are now being outsourced to the private market.
Privatization creates a whole set of problems. Contractors do not have access to necessary files because they are not government officers. The courts are overwhelmed; judges are now in positions where they have 1000 or 1500 cases on their docket at any one time. Obviously they cannot hear them all in one day, and proceedings are time-consuming. The case-loads are huge, and people are on the verge of burning out.
Recently, there was a Congressional hearing on merging the three units of immigration back together again. After all the confusion created
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by the separation, there is talk of putting things back together again. It just does not make any sense.
Meanwhile, there are many people who are working every day and paying taxes. Sometimes they are undocumented, but they pay taxes. They work all the time, because in this country you cannot live without working. Like everybody else, immigrants work like hell. These people’s lives are on the line, and they are trying to get their papers processed, but the bureaucracy does not work. I spend a lot of time holding hands, trying to keep people going from day to day.
There are some positive aspects to this work. In the last ten or fifteen years, the asylum process has changed in this country. The Refugee Act was passed in 1980.[34] For ten years people did not understand asylum, and they did not want to grant it. Since 1990, however, there has been a new Asylum Corps, which is an elite corps in the immigration service. They do very good work, and we are very concerned now that they are under attack by the second term of the Bush administration. We are very concerned because human rights affect everyone, on both ends of the political spectrum.
Human rights are a key issue, and it is one area in which women’s rights and children’s rights are really moving forward. VAWA has also been a very bright spot, because women and children who have been abused at home do have access to relief under VAWA. It is a very important piece of legislation, but it is now under attack as well.
I would like to conclude by stating that I think somehow, we need to get through this. We will need to make incremental changes to accomplish that, but in the end, we need to re-think our entire approach to immigration. We live in a globalized community, and we must take that fact into consideration.
Audience Member: I think there has definitely been a slow, steady drumbeat conquering racial equality, especially in the past year. People are acting, especially the Minutemen. Democrats and Latinos, on the other hand, are reacting. I think we are on the defensive because we are not offering alternative proposals. So, if we believe that the country’s immigration problem is going to intensify, it would benefit Latinos and Latino organizations to think seriously about alternative immigration policies.
Ms. Culliton: Actually, that is a large part of what we are doing in the civil rights movement, and in the national immigration reform movement. We work very closely with the National Immigration Forum[35] and other groups. For example, the Leadership Conference on Civil Rights, an umbrella organization of 180 civil rights groups, is in favor of compre-
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hensive immigration reform.[36] Last year we helped draft the SOLVE Act,[37] but it did not pass.
This year we are working with Senators Kennedy and McCain on a bill that should be introduced in a few weeks. We also submit testimony through Senator Cronin’s immigration sub-committee, and try to suggest solutions that would work. A large part of what we are doing is trying to convince the President and the White House that in order to fix immigration, a broken system, we must do what will work in the real world. That is an approach that appeals to many people. We work with business, labor, and other groups. Immigration reform, in order to work in this world, needs to be comprehensive.
A solely guest-worker program will not work because the best employees at many companies, such as Tyson Foods,[38] for example, are Latino immigrants. Business representatives such as the U.S. Chamber of Commerce and the Essential Worker Immigration Coalition[39] agree with this assertion. These companies do not want their employees to have to return to Mexico after three years; they want them to continue working. Family unity is an extremely important part of establishing equality, as well as what would work in the real world. We cannot have a guest worker-only program.
As the Latino community knows from very tough experiences with the Bracero program,[40] many labor rights abuses happen if you have a temporary worker-only model. The National Hispanic Leadership Agenda published a special immigration report last year calling specifically for comprehensive reform with the components I have discussed. A path to permanent status, family unity, and integrating the current undocumented population are essential, or we will be back where we started.
The 1986 amnesty[41] was a one-time only shot, and that is why we are back here again. Immigration is not going to stop, and it is not a bad thing. Immigration is good for the U.S. economy, and for the country as a whole. It is something that is very helpful; immigrants make many important contributions to our society. Therefore, we want to make sure that there is a
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mechanism for the future as well. If we are very lucky and we are able to get a lot of people involved, this might happen in the next few years.
Audience Member: Dr. Marcelli, could you comment and elaborate on your findings on the labor market impact of undocumented workers in southern California? In addition, could you extrapolate, and discuss the larger impact throughout the United States?
Dr. Marcelli: Here is the issue. To my knowledge, there are only three studies that investigated the impact of unauthorized immigrants on the wages and employment outcomes of other workers in the United States. I would ask anybody to please let me know if they know of others. I have been looking at this for about ten years, and what I have found is that organizations like the Center for Immigration Studies[42] want to show that unauthorized immigrants have a negative impact on the labor market outcomes of other workers in the United States. They will assume that the lowest-skilled Latino immigrants are all undocumented, and control for other variables in particular ways.
These studies do not empirically speak to the issues in an unbiased way. There is very little research on the topic. But I think there is broad agreement among the economists that the overall impact of immigrants is positive. There are certain groups, such as legal Latino immigrant workers and lower-skilled blacks, that may present some adverse wage and employment effects. But even the evidence for that proposition is really sparse, and the effect amounts to pennies on a dollar.
Mr. Kauffman: I do not think there has been a study that has found an overall negative economic impact of immigrants in the United States. There is a lot of ignorance about immigrants and taxes. Immigrants often pay taxes without receiving the benefits of the Social Security system. They pay income taxes, sales taxes, and real estate taxes as well. There is not a lot of great research on this topic.
Audience Member: Most of the work that is being done for undocumented immigrants is through academia and human rights programs. However, every time you see undocumented immigrants in the media, they are shown like rats coming out of a sewer pipe, in a degrading light.
What is being done to portray the immigrant community to the general public as something positive, as something good? The prevailing attitude toward illegal immigrants seems to be: “Incarcerate them, prosecute them, and deport them.”
Dr. Marcelli: I want to say that I could not agree more with your critique, and I see it as a critique of some of us, in not working together more effectively to get the message out. But when I had my empirical results come out in the mid to late 1990s, about the economic effects of undocumented Mexicans, the story made the front page of La Opinión, a primar-
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ily Mexican paper in Los Angeles, and The Sentinel, an African American paper. The L.A. Times would not touch it.
Ms. Culliton: I think this is a really important and frustrating point. I feel the same way when I watch TV. Since joining MALDEF, I have been doing a lot of media work, and I have even gone on FOX. We have to get our message out there. I also agree with Dr. Marcelli that the Spanish-language media is much more receptive.
It is not that we are not trying, but we do not have as much money. Anti-immigrant forces are more organized and have more money, but they are actually a minority in the United States. We have a recent poll by a nonpartisan pollster that demonstrates that seventy-five percent of the American public is in favor of comprehensive immigration reform. It is so frustrating to watch Lou Dobbs, and it is frustrating that Samuel Huntington[43] got the attention that he did, knowing that his research was absolutely wrong and unfounded.
And so, we have to try to put together a better media strategy, and to push for comprehensive immigration reform. The fact that Spanish-language media is so much easier and so much more receptive is a very good indicator of where we should go. We should be doing more with La Opinion and Telemundo. I know it has been effective to communicate to people about what is happening in Washington, what their rights are, and what they can do.
One positive story is that the reason that the matrícula, the consular identification cards,[44] are still accepted by the federal government, is because of a Spanish-language media strategy. I think there is a huge potential through Spanish-language media, but it is a tough battle.
Mr. Willshire-Carrera: You are right. What both of you said is so important in this work. If you hear a story in the news that is anti-immigrant—for example, blaming somebody for bringing in diseases, accusing someone of taking up the money in the prisons, or even, “The illegals are driving cars in the streets!”—the next day, the next week, the next two weeks, you feel it in the community. It has an impact. Those who are concerned about it will start asking questions and start harassing immigrants.
For us, I think we always know that we are going to be swimming upstream, because the media, in reality, is going to follow the policies that are being pushed. At this point, I do think there is a very strong anti-immi-grant line that has been drawn by a lot of people in power, so others are following it. What is really important—and I think people who are orga-
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nizing around the DREAM Act[45] have done a beautiful job around this—is to get stories out about individuals affected by these policies.
I think people who have broad concerns about immigrants can learn to change their perspective when they can connect to somebody, whether it be the person next door whom they know to be a very good person, or who took care of their mother, or who is going to school, or named valedictorian. I think the individual stories are so important, and that is something that we really try to push. I think it is much better when they talk about the individual, as long as the individual is safe. That really is a very powerful way of telling the story.
Mr. Kauffman: I want to support that. We passed a bill in the Texas legislature through a Republican Senate, Republican House, and Republican Governor, that gives undocumented high school graduates the right to go to college with in-state tuition.[46] Even though there were people who would say, “We must protect our borders; we must protect America,” when they saw these very deserving people who had lived here ten or twelve years, were valedictorians of their high school, and yet could not go to college, there was increased sensitivity and support. The DREAM Act would carry that to a national scale.
Audience Member: Immigration has basically become patriotic. Family values are still good and American, and working hard is good. But somehow, those values are not associated with immigration. The issue is about banking, making money, and remitting. We keep hearing a lot about the power of remittances, and I would like to ask: How is banking playing into immigration discourse, if at all? And if you could project into the future, especially given all this reorganization, has the Treasury Department come back into the picture? Everybody wants to harness the power of money, regardless of where it comes from. Could you speak to that, in particular, to remittances in relation to immigration?
Dr. Marcelli: I am glad you asked that question. I only have information from Los Angeles County, but I have given presentations at the Boston Federal Reserve Bank on this issue. To my knowledge, there is no data in New England on the level of remittances, the mechanisms through which people are remitting, the use of those remittances, or how they affect the lives of immigrants in the United States. Essentially, we found that remitting to Mexico does not reduce the probability that the Mexican immigrants will integrate in the United States. They are actually more likely to buy homes if they remit, contrary to popular perception. They are also less likely to use welfare, so it is a transnational perspective. This is a paper that just came out last week, on a special immigration review.[47]
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Ms. Culliton: I think there is a disconnect, because in Washington we have a lot of international economists with ties to the World Bank, and the Inter-American Development Bank, who examine development issues in Latin America. What we have seen is that development aid in Latin America is the lowest proportionally around the world, and it is going down. Remittances are actually the number one component of the Mexican economy, and Mexico is very important to the economy of the United States.
There are some studies by the Dallas Federal Reserve, and by some of these development institutions that I mentioned, showing how one way that immigrants revitalize economies is through their use of financial services. The financial services industry has been somewhat abusive, and we are in favor of Senator Sarbanes’s bill that would give people who are remitters consumer rights.[48] There have been cases of people going into Western Union and having to pay much higher fees. There is corruption on the other end, as well.
So there have been abuses, and yet, if you look at the overall economic development of the region, of the Americas as a whole, for both Mexico and the United States, Latino immigrants are huge contributors, and extremely important to the well-being of our economy. For example, if you were to deport only Mexican undocumented immigrants, we would lose 220 billion dollars in GDP here in the United States. The irony is that people who are doing this do not have much access to legal status. It is really an underclass paradigm that is being created, and we have to find a way to break it.
Mr. Willshire-Carrera: Remittances are very important for all immigrant communities. If you talk to people in Haiti, it is the way that people have been able to send money home that has actually worked to help better their communities. It is a development from the bottom-up, and it has been very important. Secondly, and this is one of the big contradictions of the moment: the system wants the money to move; on the other hand, they are putting up all these restrictions which are being imposed on immigrant communities, and are having a negative effect on those communities.
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Andrew Smith[∗]
Enforcing the civil provisions of the Immigration and Naturalization Act (INA)[49] has traditionally been an exclusively federal responsibility. In the wake of September 11, however, state and local law enforcement agencies have increasingly been urged to divert their scarce resources to the enforcement of the INA’s civil provisions.[50] In light of increasing nativist pressures, the perceived need for greater cooperation between state and federal agencies in thwarting foreign terrorist attacks, and the woeful understaffing of Immigration and Customs Enforcement (ICE),[51] politicians and others have increasingly called for an expanded role for state and local police in immigration enforcement. The latest of these calls is § 220 of the “Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005,” passed by the House in December 2005, which would “affirm” the inherent authority of state and local officials to enforce immigration law.[52] In this Commentary, I shall argue that H.R. 4437 § 220 poses a threat to public safety, to civil rights, and to the rights of immigrants. I shall show that despite the fact that §220 purports to affirm existing law, the legal status quo regarding inherent authority is quite murky. Finally, I shall argue that §220 is unnecessary from a policy standpoint given the existence of other statutory mechanisms for cooperation among federal, state, and local agencies.
Local enforcement of federal immigration law creates a number of problems. Delegating enforcement to the local level exacerbates the problem of racial profiling due to state and local officers’ relative unfamiliarity with proper immigration enforcement techniques. Senator Harry Reid, among others, has expressed this concern, as well as the fear that local enforce-
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ment of immigration law may result in decreased public safety due to the diversion of police resources away from criminal law enforcement and the reluctance of some immigrants to report crimes to and cooperate with police.[53] Houston Police Chief Harold Hurtt has said that the increased responsibility of such enforcement would “stretch our manpower to the point where we could not provide the services that citizens expect from us.”[54] Recognizing that these concerns are not merely theoretical, some police agencies have resisted calls to assume enforcement responsibilities under the INA.[55]
As a matter of statutory interpretation, it is unclear whether the INA grants state and local agencies the inherent authority to enforce the civil provisions of federal immigration law. There is no question that state and local police can enforce select criminal provisions of the INA, since such authorization is clearly provided for in the text of the Act.[56] Likewise, no one disputes that state and local agencies can enter into agreements with ICE, known as Memoranda of Understanding (MOUs), whereby state and local officers receive training from ICE in return for limited authority to enforce the INA. This limited grant of power is known as 287(g) authority.[57]
Reasonable minds have disagreed as to whether the local agencies that have not pursued 287(g) authority nevertheless have inherent authority to enforce the civil provisions of the INA.[58] Despite the exaggerated claims
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on both sides of the debate, it is unclear whether the INA grants state and local agencies this inherent authority. As recently as 1996, the Department of Justice Office of Legal Counsel (OLC) took the position that state and local agencies have no authority to make arrests on suspicion of civil immigration violations.[59] However, after the passage of the Illegal Immigration Reform and Responsibility Act of 1996 (IIRIRA)[60] and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),[61] the OLC withdrew this opinion, leaving the state of the law murky. The current debate centers on the ambiguous effects of these Acts, particularly INA 287(g) and 8 U.S.C. § 1252(c).[62]
Both 287(g) and 8 U.S.C 1252(c) can plausibly be read either to preempt inherent authority or to confirm inherent authority. On one hand, certain sections of 287(g) make no sense unless they are understood as precluding inherent authority.[63] 287(g)(1), (2), and (3), which govern the train-
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ing and selection of state or local officers for enforcement of federal immigration laws, are most logically understood as conditions on a grant of limited enforcement authority. If state and local agencies had preexisting inherent authority to enforce immigration laws willy-nilly, without any training or oversight, then these sections imposing constraints on enforcement authority would be rendered meaningless. On the other hand, the plain language of 287(g)(10), a savings-clause that reiterates, in broad terms, the authority of state and local officers to cooperate with the Attorney General in immigration matters, seems to militate for the opposite conclusion, although this result is not inexorable.[64]
Likewise, 8 U.S.C. 1252(c) could be read either as an express authorization for local officers to make certain arrests that implicitly limits their general authority, or, alternatively, as an attempt by Congress to increase local enforcement of immigration law that would be perverted by an interpretation that understood it to preclude general inherent authority.[65]
Against the background of this legal uncertainty, the “Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005” (H.R. 4437), which recently passed in the House, purports to “affirm” the “in-
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herent authority” of state and local agencies to enforce immigration law [emphasis added].[66] For the House to label this provision an “affirmation” of such authority seems disingenuous given the unclear state of existing law on this question. More disturbing however, is the fact that this so-called “affirmation” of inherent authority could exacerbate the flaws endemic to the local enforcement of immigration law, including decreased cooperation between police and immigrant communities, diversion of scarce crime-fighting resources, and the inevitability of racial profiling. The current 287(g) certification process is relatively narrowly tailored and attempts to mitigate these flaws by providing specialized training in immigration law to anyone who will assume enforcement responsibilities.[67] In a major step backwards, the broad grant of inherent authority contained in H.R. 4437 § 220 contains no such corresponding safeguards. While the limited authority granted under current 287(g) process is not an ideal policy, it is at least preferable to the broad and unsupervised power that Congress is poised to bestow upon untrained law enforcement officers.
Given the legal ambiguity concerning the question of state and local agencies’ immigration enforcement power, perhaps it would be a good thing for Congress to make its intent clear. Unfortunately, H.R. 4437 § 220 would settle the debate in exactly the wrong way, affirming inherent authority and encouraging untrained state and local officers to freelance as immigration enforcers.[68] Unlike ICE’s 287(g) program, which provides certifica-tion only to officers who complete a course in immigration enforcement that covers “immigration law, civil rights, intercultural relations, and the
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issues and illegalities surrounding racial profiling,”[69] H.R. 4437 contains no mandatory training provision. Rather, it contemplates arming local enforcement officers only with “pocket guides” on immigration enforcement for “quick reference . . . in the course of duty,”[70] a concept almost laughable to any student of the complexities of immigration law. And while H.R. 4437 purports to require the Secretary of Homeland Security to provide training to state and local officers,[71] the training would not be a mandatory condition on the grant of authority, and there are no guarantees as to how extensive such training would be.
The policy consequences of H.R. 4437’s so-called affirmance of inherent authority could be disastrous. It could lead to even greater diversion of scarce law enforcement resources, reduced immigrant cooperation with police, decreased rather than increased counterterrorism capability, and increased racial profiling. To truly improve the state of immigration enforcement, Congress should repeal 287(g) and declare enforcement of the INA’s civil provisions to be an exclusively federal responsibility. It should then increase funding for ICE in combination with comprehensive immigration reform that would provide for increased legal transnational labor flows and an eventual path to legal status for those undocumented persons already present in the United States. In the absence of such action, Congress should, at the very least, keep current 287(g) programs in place and insist that ICE provide high-quality certification programs that will simultaneously accommodate the goals of increased security and respect for civil rights. Unfortunately, as this goes to publication Congress seems poised to adopt the worst solution.
Norma Dominguez: I am a second-year student at the Kennedy School of Government. I have worked with a few other students from the Kennedy School and the Law School, including José Rodriguez, to put together a panel on an issue that we are all very interested in: wealth development.
I will leave the description to our moderator, Rafael Lopez. Mr. Lopez is a mid-career student at the Kennedy School of Government, and a wonderful resource for those of us who are studying at the Kennedy School. Prior to attending the Kennedy School, he was the founding executive
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director of First Five of Santa Cruz County.[72] He was also the youngest elected member of the City Council of Watsonville, California. He brings a wealth of knowledge and experience and we are grateful to him for moderating this panel.
Rafael Lopez: This is going to be an interesting panel. I am especially glad to participate because I have observed the importance of wealth-creation issues firsthand, both in my elected role and in my role in the nonprofit sector.
As an elected official, I represented a council district that was formed from a MALDEF lawsuit, Gomez v. City of Watsonville.[73] I won that council seat on the ten-year anniversary of that lawsuit. The most important thing about that district is its constituency. That particular district is the poorest neighborhood not only in Watsonville, but also in all of Santa Cruz County.
The people of my district are mostly Latino. Historically, that particular district has been a home to various immigrant groups. For each immigrant community, one of the primary issues that had to be dealt with was the issue of asset building and wealth development. Often, these people worked very hard but were unable to cultivate the assets they needed to purchase a home or adequately provide for their children. I will tell you one quick story.
My mother, who came to this country in the 1960s with my grandfather as part of the Bracero Program,[74] retired a couple of years ago. She had worked in the fields, canneries, kitchens, and other similar jobs. At the time she retired, she was excited because she retired making $7.25 an hour. This was two years ago. It was the most she had ever made in her life. I know that a version of this story exists within many Latino families. It is, however, one of the things that we are often embarrassed to talk about. There is a lot of shame for neighbors, families, or communities that do not have a lot of physical assets.
This panel was organized to foster an open and active conversation about this issue. As the Latino population continues to grow nationally, what are we going to do as Latinos to create wealth in our communities? How will we be able to purchase homes and create legacies, financial and otherwise, to pass on to future generations? We want to address these issues so that the story that we tell to our children and grandchildren is not the
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same one that my mother had to tell after decades and decades of back-breaking work, where she was finally able to make $7.25 an hour.
With that, I would like to introduce today’s distinguished panel. We have with us Michael Barrera, who is the national ombudsman for the Small Business Administration (SBA)[75] and was appointed by George W. Bush. His second day of work was September 11, 2001. Mention of that ominous date should indicate the kinds of challenges he has faced in his role in the Bush Administration.
I would like to highlight one part of his curriculum vitae. Prior to his appointment, Mr. Barrera was an attorney in Kansas City. He did a lot of work at the local level, which afforded him a unique perspective that he brings to his role as a national official. His insights are an asset to this panel.
Our second panelist, Jordana Barton, is also one of my colleagues in the mid-career program at the Kennedy School. Ms. Barton has worked extensively in Texas, where her experiences in wealth development range from the grassroots level to academia. She most recently served as assistant director of the Latino Financial Issues Program at the University of Texas at Austin.
Our third panelist, Evelyn Friedman, is the executive director of Nuestra Comunidad Development Corporation.[76] She works with several Boston-area communities, including Roxbury, Dorchester, and Jamaica Plain. Ms. Friedman is a wonderful example of what it means to work day-to-day in a community where asset building and wealth development are major issues. Her work is something that many Bostonians, particularly those in the Latino community, appreciate.
I will now welcome the panelists. They have each agreed to give a brief overview of their relevant experiences regarding the complex issues of financial assets and wealth building in the Latino community.
Michael Barrera: As Rafael mentioned, my job title is “national ombudsman.” Very few of you probably know what that is. As the national ombudsman, I travel throughout the country conducting small-business hearings. I have been to forty-four states in the last three years. At these hearings, businesses tell me about their interactions with various federal agencies.
My role is that of a liaison, or troubleshooter, between small businesses and federal agencies. It has been a great experience. Hearing the stories of these small businesses and their owners has taught me about the roles these enterprises play in the communities and the challenges that they face.
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The subject of wealth creation is particularly significant for the Latino community. As we all know, the Hispanic community is the fastest-growing ethnic group in the United States. Many predict that by 2050, one out of every four people will be Hispanic.[77] I personally think that this will happen before 2050. We are already the largest minority group, although that was not expected to happen until several years from now.
Therefore, it is extremely important that the Latino community understand what it means to create wealth, not just for our community, but for the whole country. If a quarter of the population will be composed of Latinos, our community needs to know how to create wealth in order for this country to prosper. So, at the risk of sounding Pollyanna-ish, it really is our patriotic duty to know how to create wealth.
When you think about wealth, you have to think not only about today, but also about tomorrow. I am going to digress just for a moment and use Social Security to illustrate this point. The current problem with Social Security began several years ago. In 1950, there were sixteen people working for each person retiring. Today, there are 3.3 people employed for each retiree.[78]
Three years from now, the first of 79 million baby boomers will retire. In 2018, there will be more money going out than money coming in. By 2042, the system will go bankrupt. These are not Democratic numbers. These are not Republican numbers. These are numbers that no one really disputes.
The President’s top priority is to initiate a conversation about Social Security. Why is this important to the Hispanic community? Because, for a third of our nation’s elderly, particularly those who are not well-off, Social Security is their primary source of income when they retire.
Right now, Latinos are the youngest growing community. Social Security will be problematic for those who will retire forty years from now. When that happens, as the youngest community, Latinos will play an important role in providing funds to pay for retiree benefits. Therefore, it is important that we think about what is going to happen with Social Security.
Similarly, effective wealth-building strategies require consideration of the bigger picture. When we talk about wealth, it is important to realize that the government does not create wealth. People create wealth. All that the government can do is create an environment in which people can create wealth.
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I have had several mentors in my life, including my father. My father had a good friend, Hector Barreto, who founded the United States Hispanic Chamber of Commerce.
Hector used to talk about the “triangle of power.” The triangle of power is economic power, educational power, and political power. You need all three of these to prosper. He would say to me, “Mike, if I had my choice, if they made me choose one, I would take economic power. Because if you have economic power, you can buy the other two.”
He said that jokingly, but there is a lot of truth in his message. You have to have economic power to prosper. Therefore, it is important that we do what we can to learn about wealth creation. When I think about economic power and creating wealth, I think of two things: investment and ownership. You have to be able to invest in something that will increase in value, like a home. In contrast, you do not “invest” in a car; you buy a car. There are other things, but investment and ownership are two of the most important.
We have already mentioned the problem of poverty. My grandfather came from Mexico. My dad grew up as one of fourteen children, and he and his family lived in railroad cars. My father was very proud of that. He used to say, “Mike, it doesn’t matter where you start, it matters where you end.” My family started poor, but my grandfather worked hard. He bought several homes, rehabbed them, and then rented them. He let the money make more money. He did not work for money; he let the money work for him. That is an important lesson.
Moving on, I am now going to talk briefly about small businesses. That, after all, is my area of expertise. Right now there are twenty-five million small businesses. These businesses employ fifty-one percent of the private work force. Small business creates three-fourths of new net jobs.[79] Three million jobs have been created over the last twenty-two months, two million of those by small business. Therefore, it is crucial that small businesses prosper.
Many people, when they think about trying to develop cities, think about bringing in the big corporations. That is important, but you should also focus on small business because you never know when a small business will become a big business. Compaq, Albert Edmonds Shoes, Nike, and AOL all received assistance from the SBA.
When small businesses do well, they create jobs. When a small business becomes a big business, it does business with other small businesses. This is why it is so important that people learn how to effectively run small businesses, because they can create both jobs and wealth.
The SBA does its part to help these companies. Last year we gave out eighty thousand loans to small businesses. The amount of money loaned to Hispanic businesses has grown forty-six percent over the last three years,
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and the number of loans that we have given to Hispanic businesses has grown by over sixty percent.
The Hispanic Chamber of Commerce estimates that there are about two million Hispanic businesses, and it predicts that this number will double every five years. The fastest-growing segment of that group is Latina-owned businesses.
As you can see, things are going very well and change is occurring. It is so important to be aware of these issues. The SBA website is a good source of information.[80]
In closing, I would like to emphasize one final point: Latinos need to do business with each other. There are some statistics out there that in the Asian communities and in the Jewish communities, a dollar bill will pass anywhere from eight to ten times. In the Latino community, it only passes one or two times. We must do business with each other to grow wealth within the community.
We still need to demand the same quality and the same service, because it is still about business. If, however, we can do business with each other, that makes a big difference.
Jordana Barton: I am an MPA student at the Kennedy School of Government. I am from Benavides, Texas, and currently serve as the executive director of the Latino Financial Issues Program (LFIP).[81] It is exciting to be on this panel because the purpose of the LFIP is to work with the various sectors represented here: government, industry, and community-based organizations.
Michael touched on something very important: the triangle of economic, educational and political power. In Latino studies, we talk about education and we talk about culture. We have not, however, connected these issues to wealth and asset building in the Latino community, business development, access to health care, and strong families. We are attempting to create such connections. The work has already begun.
I am here today to provide demographic and financial information about the Latino community. Michael touched on this topic, and I will go into a little more depth. I will also discuss the LFIP and explain how we envision addressing certain challenges.
I begin with some figures for the Latino population. There are approximately 40 million Latinos in the United States. Thirty percent of the Latino population is under eighteen.[82] These numbers become very important with regard to Social Security, marketing, and training young people in
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financial literacy. By 2020, Hispanics will make up nearly twenty percent of the U.S. population.[83] The point is that Latinos will exert greater and greater influence on the economy over time. More importantly, young Latinos will soon be moving into their prime earning years and will dramatically impact the U.S. economy.
Looking at net worth and access to banks, there is a dramatic difference between median net worth among Latinos and median net worth among white Americans.[84] In 2001, Latinos had just one-tenth the median net worth of white Americans. And Latinos are more likely to be unbanked; that is, to not have access to financial services, than any other ethnic group. A study found that 50% of Hispanic households had no deposit account. By comparison, 29% of black households and 7% of white households were considered unbanked. Latinos have longstanding suspicions about banking. Some of you have probably observed this phenomenon, which tends to pass from generation to generation.
Let us consider another measure of Latino wealth and assets. In 2003, the average family income for Latinos was $44,000, compared to $73,000 for Anglos.[85] Latinos have just sixty percent of the average family income that Anglos do. But that is not the whole story. Even with an average family income of $44,000, very little of that income translates into net worth, savings, and investment. These statistics confirm that Latinos lag behind on many significant measures of income, wealth, and access to financial services.
Now, let us examine one of the primary indicators of asset accumulation. In 2000, 48% of Latinos owned their own homes. African Americans have roughly the same rate, and Anglos had a home ownership rate of 73%.[86] But what these numbers do not show is that the average value of the Latino home is worth just half of what the white home is worth. The average value is about $47,000 compared to $113,000.[87]
In certain areas of the country, like the Texas-Mexico border, you have almost ninety percent home ownership. The homes, however, are not val-
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ued as highly as in other areas. Of course, these homes are very important to the families that own them. But these families do not have the kind of wealth that readily translates into, for example, access to education.
There is a bright side to these dim facts. In 2002, total Latino consumer spending reached over $530 billion, about eighty percent of the U.S. average. Projected rates of growth over the next eighteen years are also high. These numbers suggest that the growing Latino population will be a significant factor in the U.S. economy because companies want to attract the Latino market.
But Latinos should not spend blindly. The Latino community needs to acquire financial literacy so it can avoid unproductive consumer habits such as relying on predatory lending to finance consumption. Latinos have the market power to hold banks accountable and force them to meet the needs of the Latino community. Citizen’s Bank in Boston has a program targeted specifically at the Latino community. Citizen’s Bank has benefited from the thirty million dollars in annual remittances to Latin America that have been generated by serving the needs of some of America’s poorest immigrants. Citizen’s Bank said, “Instead of sending through Western Union for fourteen dollars, you can send through us for ten.” Wells Fargo and the Matricula Consular have also joined this profitable market. We need to encourage banks and other businesses to adjust to the members of the Latino community as both consumers and as economic partners. These businesses can make a lot of money by serving the Latino community, and should therefore participate in creating an ownership society among Latinos in order to foster loyalty and enable long-standing economic relationships.
I will speak briefly about the ownership society that the Bush administration often describes, because creating such a society among the Latino community is the purpose of the Latino Financial Issues Program. How do we create this ownership society that so many believe is important to long-term economic success? LFIP seeks to remove the obstacles to this ownership society by educating Latino undergraduates and grooming them for careers. We emphasize financial literacy since many of these students are the first generation in their families to go to college. We try to create leaders to continue the work of community-based organizations. We want our beneficiaries to develop the sophistication to work comfortably with both Wall Street bankers and government officials, as well as with grass- roots organizations.
We partner with community-based organizations and try to improve their capacity to serve the community. In other words, we are not going to reinvent the wheel. We want to serve by enhancing the efforts of others already on the ground. We want our students to gain hands-on experience serving their communities. We want to change the way wealth is talked about in this country, and do pragmatic research for the benefit of community-based organizations. These organizations need to conduct sophis-
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ticated impact analysis in order to obtain funding from foundations, the government, and individual donors. We want to strengthen and amplify the existing efforts of these community-based organizations.
Ours is a multi-sector approach to creating an ownership society. Our students are spending eight thousand hours to take a pilot program to the national level. The pilot program will expand LFIP to universities throughout the country. These groups will partner with community-based organizations and other entities that emphasize wealth and asset building.
Evelyn Friedman: I am going to talk about Nuestra Comunidad Development Corporation, which is a Community Development Corporation (CDC), a nonprofit right here in Boston.[88] The people we serve are at the low end of the financial spectrum. Nuestra is in Roxbury, which is the lowest-income community in Boston. It is a community that has experienced a lot of devastation and disinvestment. When I first started working at Nuestra, there was more vacant land than there was housing in Roxbury because the buildings had burned down or fallen down. Over time, however, that has begun to change.
One of the things that the community is dealing with is the beginning of gentrification. The community is not the same as it used to be, but most still view the residents as the same folks: Latinos, African Americans, and a smattering of others. From the outside, people still think of the community as Puerto Rican or African American, when in fact the community has become much more diverse. We all have to address the fact that not everybody is Puerto Rican or Mexican. Neither are they necessarily African American. Even if they are black, they may be from the Caribbean islands or Africa.
Nuestra was started twenty-two years ago by a Social Service agency called Alianza Hispana.[89] At that time, Nelson Merced was the executive director. He went on to become the first Latino state legislator in Massachusetts. He now works for a national neighborhood reinvestment agency that supports CDCs. Since he saw some problems with housing, he decided to create an agency to become a receiver of property near their offices. They acquired and developed the property until they realized that they did not know anything about development. They then created Nuestra Comunidad. We currently own about one thousand units of housing and rental housing, and we own about sixty or seventy thousand square feet of commercial space. All of our property is for low- and moderate-income people, with some commercial space available for small businesses. In fact, we do not have any credit tenants. Credit tenants are tenants with a lot of credit, like a Starbucks.
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We perform several asset-building functions. Besides providing affordable housing in the rental market, we also provide a lot of owner-occupied housing. We do this in two ways. First, we take a property that costs us about $200,000 or $300,000 to build and we sell for about $150,000. This lets a family that is making $44,000 a year actually acquire a house.
We also have a home ownership program that provides loans and technical assistance to people purchasing homes. We offer financial literacy training so that people can understand what banking is about and what to look for in a loan. We also provide two kinds of loans: acquisition loans for up to one hundred percent financing for people who want to buy homes in the area, and second mortgages for people who want to rehabilitate their homes.
Why do we do that? Why do banks not do it? Banks do provide mortgages generally, but not for this segment of the population. Banks do not give loans to people who are low-income or of modest means who need to finance one hundred percent of a mortgage. Presently, banks are not willing to absorb that kind of risk. We hope that over time, however, banks will see that this is a good market for them. Why do we want that? Because banks have a lot more money than Nuestra.
We also provide second mortgages for rehabilitation purposes. Most of these folks do not have enough equity in their homes to get a home equity loan to rehabilitate their houses or to pay off debt. We are able to do that for them.
We also have a small business program. We provide loans, training programs, and technical assistance to small businesses. We have a couple of “business incubators.” One is a pushcart program where we lease pushcarts to people and provide them with technical assistance. People can purchase their own materials for $200–$500 or so, and can then sell and learn about business and marketing with very little risk.
We also have an auto mall. That sounds a little strange. But the year we started that project, seventy-seven small businesses had been closed by the Inspectional Services Department (ISD) in the city of Boston for failure to dispose of their materials properly or for other code violations. Each of these small businesses employed four or five people, including the owner. It was a tragedy that they were going out of business.
Most of these business people were not native English speakers. In order to support these businesses, we developed an old neighborhood garage so that five or six businesses could rent space affordably and properly dispose of all their oils and so forth. Some of those businesses eventually moved out into larger spaces because we became too small for them. They have now bought their own spaces and have expanded their businesses.
The third incubator that we have right now is a commercial kitchen. A lot of small business people want to be in the food industry, because it
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is an easy industry to get started in, or at least they think so. People want to eat their own food, and they want to sell it to other people. But it is very expensive to equip a certified commercial kitchen. So we have a commercial kitchen where we rent space by the hour to caterers and specialty food producers. We also provide them with technical assistance, marketing, and a variety of other support services. Some of those specialty food producers are now slowly getting their products into Whole Foods Market, or Harvest Co-op here in Cambridge, as well as other markets. The incubator has allowed them to sell their products and grow their businesses without much overhead.
I want to talk about some of the other things that Nuestra is doing, so that you can understand how a community-based organization can help businesses. The first is a grocery store that we helped to secure financing. It was a small Latino-owned grocery store in our neighborhood that was paying about twenty-three percent interest to a loan shark. We helped the owner refinance with an intermediary lender, a non-institutional lender that gets its funding from the SBA or other places. The owner did not have a bank account. He did not have a lot of the things lenders usually want to see. But we were able to work with him, and with Nuestra’s support he was able to get through the refinancing process. In the end, we helped him secure a loan at a rate of about ten percent.
Just by refinancing, he was able to fix up his shop and improve his business significantly. He was able to really change his whole business environment. Two years went by, and we helped him refinance again, this time with a bank, at around a 7.5% interest rate. In addition to the loan, he was able to get a line of credit from the bank so that he could acquire more materials and things that he needed for his business. He was also able to send his kid to private school and buy a house.
Another way that we have helped small businesses is by providing loans directly. For example, we do a lot of construction loans. We gave a contractor a $15,000 loan so that he could buy a truck. Then, his business grew a little, and he needed to increase his bonding. We worked with him and his bonding company so that he could do a $650,000 project for us. Today, just about ten years later, this businessperson from our community is doing multi-million dollar projects because he was able to get loans and support from a small organization like ours.
Finally, we try to do partnerships in some cases where we really feel that it works for both of us. The first one that we did was with a business called Meringue Restaurant, which is on Blue Hill Avenue in Roxbury. Meringue was a small business. They only had five tables, but they had done a lot of Meals-on-Wheels programs, providing Latino meals in the city of Boston. The catering part of their business was growing, but they could not fit their catering business and their restaurant business in one kitchen. They wanted to move out of the neighborhood because they could not find a place in the neighborhood that could accommodate both sides
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of the house. But we did not want them to leave because it was the only sit-down restaurant in the whole neighborhood.
So we acquired a property next door and we built a new restaurant with the owner, Hector Pena. Mr. Pena and Nuestra Comunidad are partners in ownership of the building. He has now about a forty-seat restaurant that has become a gathering place for all the folks from the neighborhood, including the Latino baseball players. He has pictures of them all over his walls. It is a wonderful place. And this businessperson is gaining equity in the property because he is a part-owner of the building. Over time, the plan is for him to buy us out so that he will be the sole owner. And when he does that, he is going to have additional equity so that he can do other business ventures or whatever he would like to do.
Audience Member: I am a Masters in Public Policy student at the Kennedy School. I want to know if there is a big picture strategy. I see the problem of wealth creation in our community as multi-faceted. It includes the fact that we do not have immigration reform and we cannot get a minimum wage raise in this country. Our youth are not being well-educated in our public schools and we do not have access to financial education.
We also need to be better-educated about our attitudes toward spending, debt and investment. These problems obviously require action from a lot of different stakeholders from the private sector, government and nonprofits. But, is this happening? Is there a coalition of groups talking? Do they have a strategy? How can we as students become involved?
Ms. Barton: I can address that. In fact, that is the very purpose of creating this national Latino Financial Issues Program, in partnership with the National Association of Latino Community Asset Builders.[90] The Bush administration has presented us with a challenge: how are we going to create an ownership society?[91] We want to take responsibility for that. It is not about somebody saying, “What do you need? Where can I help?” It is about saying, “This is who we are, this is what we need and this is how we are going to coordinate it.” So it is about changing the whole dialogue in this country, about how people talk about poverty.
We must make people recognize that the “bottom of the pyramid” is an amazing market and has amazing potential. Many female small business owners started on the Texas-Mexico border, through micro-enterprise and the work of some of the Community Development Corporations there.
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It is, more specifically, the National Association of Latino Community Asset Builders, along with the Latino Financial Issues Program. When we talk about the sectors, nobody talks about the universities; they are somewhat irrelevant. But those faculty and those students have a service to provide and the community can greatly enrich the curriculum of the university.
So we are sending students into the communities and the communities are coming in to teach. Earlier, I just glossed over what the LFIP program does. The first semester, the students get financial literacy training and gain an understanding of where the Latino community is. The second semester is all taught by the Community Development Corporations: the community development of financial institutions, major Latino bankers in this country, the Securities and Exchange Commissioners, and so forth.
Representatives from many sectors come in to teach the students and do workshops with them. In the process, the students learn about the work and the kinds of people that need to get together to make a coordinated change. How do you change the way this issue is talked about in this country? How do you make a coordinated effort and join the right people together? That is what the Latino Financial Issues Program and the National Association of Latino Community Asset Builders are all about.
This program was founded by, among others, Claudia Guerrero of the Rural Development and Finance Corporation,[92] an amazing woman. She was one of the Fannie Mae Foundation’s Johnson fellows and was instrumental in creating affordable housing along with Pete Garcia from Chicanos Por La Causa[93] and others. We know that as a university, we have this human power of students who want this information, who have not thought of how they can not only do well in business, but also serve the community.
Mr. Barrera: I think you ask a great question. But as with any program, there must be a way to deliver it. We can have a great national policy, but if there is no delivery aspect to it, it will not be effective. I think the fact that you came here and asked that question is very important, because we have to start a national conversation. A lot of people say to me as I travel, “Well, why doesn’t the government do this? Why doesn’t the government do that?” What I have learned in my three years working in the government is to be careful what you ask the government to do, because they may do it. Good intentions may have unintended consequences. I think it is important that, like the universities and the busi-
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nesses themselves, you as students go out there and do it. I think a local politician here once said, “Politics is local.” Having a national policy is important. But the national policy discussion on issues you mentioned, such as immigration and finance, really has to start in the local communities. We cannot rely on any one entity to do it.
Here is an example: when I was an attorney, I had a client from Peru. We were able to get a settlement check for him in the amount of $40,000. Rather than putting the money in a bank, he cashed it. We simply have too many people who believe in what I call the “Mattress Banking System.” They take the money and put it under their mattresses. That really does have to change. People must build their credit history in order to start getting investments. It really takes a lot to go back and educate people one by one.
Ms. Friedman: I think that the fact of the matter is that it is very difficult. It is very difficult to get people across disciplines to work together even though everybody wants to do it, and even though everyone sees the need to do it.
I was at a presentation in this very university where we were talking about housing. I asked one of the professors there a question about economic development. He said, “I don’t know the answer to that question, because we do housing.” So I think you asked the right question. One of the things that we need to do is to think across disciplines, which is very challenging. But I think if we can do it, we will definitely be much stronger.
Mr. Barrera: I think Evelyn will tell you that it is difficult just getting Puerto Ricans and Mexicans and Cubans to work with one another. Even coming from the Mexican community, getting Mexicans to work with other Mexicans is sometimes difficult. We must be willing to start working with each other across those different disciplines.
Norma Diaz: The story you shared, Ms. Friedman, about the gentleman who was able to cut his interest rate and what that helped him accomplish reminds me of Mr. Barrera’s narrative about making your money work for you. Growing up, we were told, “Go to school, and work hard for your money.” What can financial institutions do, or what do we need to do as a community, to get that narrative engrained in us?
Aside from savings accounts, which are the lowest-paying cash accounts out there, I do not feel that the community is investing in other types of assets, such as mutual funds. Aside from home investment, what else needs to happen for us to change that narrative to make those assets accumulate? I feel like that conversation is not happening. So what can financial institutions do, or what kinds of products need to be out there, so that our community really makes our money work for us, instead of the other way around?
Mr. Barrera: I think there are a few things we can do. For one thing, we must become bankers ourselves. People even form investment clubs to make investing fun. A lot of people are afraid of money because they
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are afraid of losing it rather than making it. I think that happens to many of us; I grew up that way.
My father said, “Get that job; make sure you get that insurance.” Getting a job is important, but if you look at entrepreneurs, they are not afraid of losing money. Although you have to be smart with it, we have to want to make it more than we fear losing it. I think that really is a lot of it, and so I think we start changing. It is really just a cultural change, and we’re going to learn that. I think we can always learn; it is just a matter of not being afraid.
Ms. Friedman: I just want to make one comment. Citizen’s Bank is important. Banks have interests. What we have to do is figure out what those interests are and how to capitalize on them. This remittance thing is huge, not just for the Latino community, but for other communities of immigrants. The banks are desperate to figure out how to break into that, and we can use that as leverage for something else that we want.
Audience Member: What are we doing to help the small businesses build beyond the communities? I think that if you just focus on serving the small communities, there is a limit to wealth development. With increased competition, you might even argue that everybody will earn less. So to what degree is your organization or others helping communities expand? And, given the fact that most of the business owners might be immigrants, is it going to be a question of language skills, or a lack of education that limits growth beyond the communities where they were born and started to serve?
Ms. Friedman: I would say that not speaking English as a first language is not really the problem. But I mention that because, for example, Boston is home to mostly white-collar kinds of industry. Those employers tend to want people who speak and write well in English. So the challenge is, if you are not in that group, how do you support businesses? You are absolutely right; one of the big challenges is how to get people beyond the neighborhood borders, beyond their rural community.
For example, one thing we do with the pushcarts is that we have stations in Boston’s Downtown Crossing where we help with marketing. The food industry is great for that because right now ethnic foods are very “in.” We also get people into new venues. For instance, if we have a reception and we invite bankers to it, we have our small businesses cater the function. The bankers pick up the cards and pamphlets from these businesses and then hire them for later events. So those kinds of marketing efforts help, but you are absolutely right, that is a big challenge.
Audience Member: I think you mentioned, Mr. Barrera, that we need to change the cultural acceptance of finance, or expand the degree to which we incorporate it into our everyday family life. But I would venture to say that I think that the Latino culture may embody this already. I just think the mechanism by which we engage in economic activ-
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ity or take advantage of financial opportunities is not standardized and is not economically regulated.
One really good example: In Texas, near the borders, there is a lot of participation in tandas, in the rotating credit associations.[94] So we know that people are saving money and we know that people are spending money. These activities are happening within the communities, but not within the traditional banking structure. So the extent to which we are involved in the traditional financial system is what needs to change. I would not say that it is not within our culture or not a part of an ethic that we already embody.
My question relates to how we are going to change from a government perspective to a strictly ownership society. The federal government has facilitated opportunities for middle- and upper-income families to build wealth and assets in this country through home mortgage interest rate deductions and programs like Social Security. That is a large part of the reason why middle- and upper-income families have the assets that they have.
That has not happened with low-income families, because, as you mentioned, either they do not own a home or they have insufficient equity built up. So how are we going to use federal programs and the work that we are doing to really change paradigms completely to recognize that low-income families also need to build assets and wealth? What can the federal government do to facilitate those opportunities?
Mr. Barrera: That is a good question. I did not mean to disparage when I said, “among our culture,” but you saw the statistic. Fifty percent of Latinos do not have bank accounts, and that is significant.
The SBA is going to facilitate $16 billion in loans this year. We do not give out the money; we guarantee it. A lot of loan programs are not like that. So anyone who applies for a loan has to have the proper credit scores; they have to have a good financial history. As the government, we cannot make people put money in banks. I think, however, that there was a good point raised earlier that what is going to happen, and what we are already seeing a lot more of, is that businesses are going to get smart about it. When I was in nonprofit, we used to go to corporations or banks and say, “You should give us money, because it is the right thing to do.”
This is no longer the approach of nonprofit organizations. Now they say, “You should do business with us because it is the smart business thing to do.” That is what we are starting to see a lot more of because government resources, believe it or not, are shrinking. The budgets of all the federal agencies right now are very small except for Homeland Security and
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Defense. Even the SBA’s budget was reduced. Most agencies are undergoing cuts, so we are going to have to develop new strategies and actually use the private sector to start helping businesses.
When people actually gain that ownership, that is good business for them. When banks realize that there is such a great market out there and that this market is where they are going to get their future profits, that is going to have a lot to do with it. Now, what we as government agencies need to do is to get that education out there as best as we can. Not only the federal government, but also state and local officials need to get that out there. But you are right, we have to be out there talking to folks like you, to find out where we are.
What I have noticed in D.C. is that people there think they know it all for everybody. It is very paternalistic. So it is very important that we get out of D.C. and talk to people in the middle of Kansas City, for example. Different areas have different needs and we have to get out there, talk to them, and find out what solutions the government can provide to make things better and easier for low-income families.
Pablo Ormachea[∗]
The United States government should promote asset building among demographic groups that have traditionally earned and saved significantly less than the rest of American society. These groups are in an especially precarious position in the face of unexpected medical emergencies, impending retirement, and any other change in financial circumstances. Unfortunately, the Bush Administration and Congress have a long way to go. America’s largest minority group, Latinos, earns a median household income of $34,241, which is 43% lower than that of their white counterparts and 30% lower than the general national median.[95] In addition, one in four American Latinos lives at or below the poverty level. In 2000, Latinos numbered 35,622,000, constituting 12.6% of the population. By 2050, this demographic will almost triple (102,560,000) and nearly double as a percentage (24.4%).[96]
The United States must invest in its people to maintain its position as an economic superpower. The United States cannot afford to allow a large percentage of the rapidly expanding Latino population to continue living
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from paycheck to paycheck. Government disregard of this issue could result in unsustainable private and public savings deficits precipitated by the costs of an aging population made up of individuals who never received the education or wherewithal to invest in their own future. A panel of experts recently congregated at the Harvard Kennedy School of Government all agreed that by incentivizing home ownership and small business entrepreneurship, the United States could go a long way toward achieving this essential goal of fostering asset-building among American Latinos.
Small businesses play a vital role in the American economy. The approximately 22.9 million small businesses that existed in 2002 employed about 50.1% of the private workforce and represented 97% of all U.S. exporters.[97] By fostering small business in any segment of the population, the government could increase the number of employers. Small businesses already contribute three-fourths of all new jobs created.[98] The Global Entrepreneurship Monitor has also found a strong correlation between national economic growth and the level of entrepreneurship in prior years.[99] The United States should use a variety of tools to stimulate this key engine of the economy.
The panelists focused on one particular proposal that some believe will accomplish the desired growth in small businesses: low- or no-interest loans, offered either through the government or through charitable organizations. Increasing access to investment capital, whether in a home or in a small business, has indeed proven effective in building assets among lower-income families. There are, however, other equally beneficial programs that would only require a small financial commitment by the government. For example, heavily subsidized English classes would greatly promote investment among Latinos, as there is a strong correlation between English skills and financial literacy. Hispanic families that are more comfortable with English have a strong tendency to be more financially secure, with 79% having a bank account, 70% owning their own homes, and 66% working in white-collar jobs.[100] In contrast, only about half of Spanish-dominant families have bank accounts, only 50% own their own homes, and 74% work in blue-collar positions.[101] Helping Latinos improve their English, already a goal for many immigrant families, could lead them from “mattress banks” to investment accounts and drive them toward greater financial
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stability and home ownership. Moreover, bilingual fluency significantly expands the economic reach of sole proprietors by allowing them to serve both English and Spanish markets.
Another often-overlooked proposal to help small businesses survive involves removing the $0 floor on the Adjusted Gross Income (AGI) on the 1040 tax form. By an unfortunate quirk in the tax code, a less successful sole proprietor is frequently taxed at a higher rate on net income than he or she would be if the income had instead been a salary, looking at what the self-employed must file—among other things, the standard 1040 (or 1040A) and a 1040SE. On the SE, the self-employed who earns a net income between $400 and $90,000 pays taxes at 15.3%. The proprietor is awarded a deduction of half their self-employment income, but because all deductions and adjustments on the 1040 are taken out before adding in the self employment tax, any family who would have had an AGI in the negative were it not for the $0 floor pays the flat 15.3% tax rate on their entire income (assuming it is all from the self-employed business). It is the low-income family that most needs those exemptions or deductions who gets hit with the floor, paying 15.3% instead of the 0% often paid by the lowest-income families.
Congress permits salaried employees to deduct expenses such as health account savings, student loan interest, and tuition and fees. Why not grant this same benefit to the self-employed? Currently, the government fails to provide low-income, small business owners with an additional incentive to save money for pre-tax health care. About half of start-up businesses with employees fail within four years, and this increased tax burden makes it that much more difficult for businesses to stay afloat in their turbulent first years.[102]
The benefits of the above-mentioned reforms will enable not only wealth creation among Latinos, but also will expand the dream of financial stability and home ownership to many other Americans. When coordinated with loan programs already available through organizations such as the Small Business Administration and Community Development Corporations such as Boston’s Nuestra Comunidad,[103] these reforms could help elevate Latinos to the income levels enjoyed by the American populace as a whole. With seventy-five percent of new jobs in the economy coming from small businesses,[104] to do otherwise could condemn entire segments of
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society to dependency on financial support from federal or state governments, particularly as the more than eight million Latino baby-boomers begin to retire en masse.[105] If it wishes to avoid such a fate of stagnancy and popular dependence on welfare, the United States must develop this rapidly growing demographic, and thereby ensure its own continued prosperity and economic dominance for decades to come.
Marie Scott: I have had the pleasure of putting together this panel with a lot of help from students at the Graduate School of Education, the Kennedy School, and the Law School. I would like to introduce our moderator, James Montoya. He is the vice president of the College Board. In that role, he manages the SAT and other standardized tests. He also supports the work of colleges in recruitment, admissions, and retention.
Throughout his career, Mr. Montoya has worked in college admissions and education policy. Before he came to the College Board, he was the vice provost of student affairs at Stanford. For many years, he was the dean of admissions and financial aid at Stanford. Before coming to Stanford, Mr. Montoya was the dean of admissions at Occidental College and Vassar. He is a great advocate of need-blind admissions and need-blind financial aid. We are very happy to have him here today.
James Montoya: I was thinking about how I wanted to start this panel, and I remembered Michael Barrera’s comment that in the year 2050, one out of every four Americans will be Latino.[106] So, I sat back and said to myself, “Okay, in 2050, I will be ninety-seven years old.” Now I have the inspiration to live until ninety-seven. Not only do I want to see an America where one out of every four people is Latino, but more importantly, I want to see an America where educational opportunities for all students, particularly for Latino students, are available.
As we begin this panel, I want to make a few introductory remarks about the framework in which we work. Liz Montoya made some wonderful comments this morning when she talked about mentorship. One of the people who is a mentor to me is Tomás Rivera, the first Latino to be a chancellor of a University of California campus.[107] He was a poet, a writer, and an activist.
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One of the things he knew was that education is the surest route to empowerment in this country. Although we learned earlier today about the triangle of finance, politics, and education, education is the area where we may have the greatest control. Beyond his awareness of education as the surest route to empowerment, Tomás Rivera said, and I believe, that denying access to high-quality education to any group of individuals is not only bad public policy; it is immoral. It is immoral because we understand how important education is as we move forward, particularly for our community.
I have some wonderful panelists here, and I would like to introduce them.
Heydi Foster came to us from the education world where she worked with a pilot school, the New Mission School in Roxbury. The New Mission School works with students who are not ordinarily identified with educational opportunity. However, that opportunity changes where there is a school like this one, with the kind of leadership that Heydi Foster has provided.
I am particularly interested in hearing Heydi’s perspective on the situation of immigrant students. We understand that the educational path for Latinos is split into two: one for Latinos born in the United States, and another for Latinos who are born outside the United States. The challenges are different, and we want to discuss today how the educational system is serving both groups as well as the group as a whole. We especially want to think about issues related to drop-outs and what keeps students in school.
We also have Melissa Lazarin, whom I had the privilege of admitting to Stanford when I was the dean of admissions. Her work with the National Council of La Raza is important, because it focuses not only on English Language Learners (ELLs), but also on community-based education. These are two areas that we must consider as we think about the Latino population and education. I am glad the College Board and NCLR are able to work together on issues related to how we can better meet the needs of the Latino community.
We also have Jesse Ruiz, who you would think after seven months of serving as the chairman of the Illinois State Board of Education, might look more haggard. It is a tough job, especially on top of being an attorney with a major firm. Jesse has really been put into a very challenging situation.[108]
I spoke about Tomás Rivera and his strong feeling about students having access to quality education. What we currently know is that Latinos
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are overrepresented in the population of students who do not have an opportunity to go to schools with adequate resources. Among the most poorly trained teachers are often those in classrooms where Latino students sit. We also know that, in terms of dropout rates, Latinos are significantly over-represented. Finally, we know that, when Latino students do graduate from high school, they are underprepared to be successful in college.
I have been working with the California State University (CSU) campuses. It is important to look at California as a sign of our future, because the population we see in California today will be the population we see across the country in 2050. In California, among students entering four-year institutions like CSU, 38% need remediation in math, and 48% need remediation in English.
A recent study that focused on the four Los Angeles Basin CSU campuses found that 75% of the Latino students who start at those institutions do not continue beyond the freshman year. Even if we are able to get students to college, the most important issue, for them at least, is graduating from college. Academic preparation is clearly an issue that we need to be thinking about.
At a place like Harvard or Stanford, all too often we do not think about the important role of community colleges. However, they play an incredible role in the education of Latinas and Latinos. Seventy-two percent of Latinos who go to college will start at a community college. Only 18% of those students will go on to a four-year institution. In California, where 39% of the students in high school are Latinos, 30% of the students at California community colleges are Latinos, 24% of CSU students are Latinos, and only 13% of UC students are Latinos.
This is an issue to which I have given much thought, because I am now responsible for the SAT.[109] As a responsible educator, one has to look at issues related to the role of standardized testing and its unintended consequences. We must think about the future and the role testing will play. With No Child Left Behind (NCLB)[110]—or, as one of my colleagues recently said, “no child left untested”—one has to think very seriously about the impact that testing has on our community.
We know that Latino parents understand the power of education. Latino parents understand that their students’ staying in school will provide, on average, greater opportunity. Yet Latino parents, particularly those who were not educated in the United States, are disconnected by cultural and language differences.
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These issues have a dramatic impact on Latino parents’ ability to be supportive of their children and to be advocates for them in the way that parents need to be. For example, consider the situation of Latino parents who have children with special needs. For them, it is particularly challenging to ensure that their students move forward in the public school system.
I am glad we are at the Law School, because it is hard to think about education without thinking about its legal foundation. This quarter, I am teaching a course through the Comparative Studies in Race and Ethnicity Center at Stanford. My class focuses on the nexus of public policy, educational policy, and the law. Given the relations between these disciplines, it is appropriate that we are here today to discuss the important issue of education.
Heydi Foster: I am originally from Guatemala. I had to learn English when I moved to the United States at twenty-two. At that point, I already had a college education. However, I came to the United States as a single parent raising my two nephews. At the time, they were three and seven. When we arrived I could not find a good school. I lived in a very poor neighborhood in Boston, and I was absolutely horrified by the options I had. Our difficult educational situation was compounded by the language barrier.
That first year all of us struggled; it was just horrendous. I fought with everybody in an effort to find a school that would work for the boys. I ended up placing them in a parochial school with total English immersion. Today they cannot read or write in Spanish. The whole situation was just too much for us. That is how my involvement in education began. I partnered with a couple of friends to start a school that could service low-income immigrant students. That was my original intent, because I was thinking of my children and I wanted a place where they could go to school.
We realized that only 57% of Latino students graduate from high school. In comparison, 84% of their white counterparts graduate. We set out to create a school that specifically addressed the needs of Latinos. Instead of talking about statistics and data, I will describe some of the ideas that worked for us.
I received a lot of flexibility from the City of Boston in starting our school. It is a pilot school, which means we have autonomy over our curriculum, our budget, and our hiring and firing decisions. The hiring power was very important to us, as well as how we used our resources. Having access to better-trained teachers was crucial. We partner with Boston University, the Harvard Graduate School of Education, three other universities, Roxbury Community College, and Bunker Hill Community College.
In our high school we found that having a very small classroom setting and having nearly everybody on staff speak Spanish worked for us. Everybody spoke Spanish, from the principal to the people in the cafeteria. We got a lot of flack from the City of Boston that we were discriminat-
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ing because we demanded a Spanish-speaking staff. We said, “Yes, we are.” We found that language has a lot to do with our success. Some of the elective classes are actually conducted entirely in Spanish.
We placed great emphasis on reading, and we created a lot of space for students to stay after school. The school is usually open until 6:00 p.m., which means that we had to adjust our budget.
Parental involvement is also essential. We have done a lot of recruiting and a lot of work with the Latino parents. We make sure that we have a lot of informational sessions, and that we are in constant contact with parents.
One aspect of our program that was extremely controversial for our Latino parents was having their children stay with us for five years, instead of four. We insisted on this policy, because it was cheaper for the students to stay with us for an extra year rather than going to a university and failing miserably. Our graduation rate right now is between ninety and ninety-five percent for Latino students, which is phenomenal. In comparison to most charter and pilot schools, our graduation rate is very high.
Additionally, having paid internships for forty Latino students has made a huge difference. Our students often face competing interests. We always want our students to stay in school, but they may also have to contribute to the income of their households, and that is not easy. To deal with this dilemma, we established partnerships with different banks and other organizations so our students can have paid internships while remaining in school.
Melissa Lazarin: I am with the National Council of La Raza (NCLR).[111] NCLR is the largest national constituency-based Latino civil rights organization in the country. We are affiliated with over three hundred community-based organizations across the country. We depend on them to be our eyes and our ears, since they are working on the front lines with the Latino community. We depend on them to tell us what the issues are, and we work to make sure that their voices are heard in D.C.
We work on a variety of issues including education, immigration, criminal justice, health, and economic mobility. I work on education, and I have been asked to talk about two issues: NCLB and the Development, Relief, and Education for Alien Minors (DREAM) Act.[112]
One immediate benefit of NCLB is that it has spurred a lot of dialogue about the education of diverse groups of students, including Latinos and ELLs. Schools, policymakers, and researchers have started paying a lot more attention to these groups. Some do so out of fear, which is
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not necessarily a bad thing. We think the increased dialogue around these issues is a positive phenomenon.
NCLR is paying particular attention to how ELLs are doing and how they are being affected by NCLB. There are several reasons why we should pay particular attention to this group. First of all, there are 5.1 mil-lion ELLs in our K–12 schools.[113] They make up at least ten percent of that school population, and that number is growing exponentially.
Eighty percent of ELLs are Spanish-speaking, so we know that the majority are Latinos. There are 8.1 million Latinos in our K–12 schools, and we estimate that close to half are ELLs. So how Latinos are faring in K–12 schools really depends heavily on how ELLs are doing. And overall, how schools are doing very much depends on how ELLs are doing.
Before NCLB, ELLs received very little attention from the education community. Under the Improving America’s Schools Act, which is the federal law that preceded NCLB, eighteen states were silent as to how they would address the needs of ELLs. There was no real accountability for the education of this group of students. While we hope that NCLB continues to bring a lot more attention to ELLs, we at NCLR insist that it be the right kind of attention.
This has not always been the case. For example, it is commonly agreed that there are few appropriate assessments for ELLs. Unfortunately, the Administration has not shown any leadership or targeted any resources at increasing the development of effective assessments. Although states and districts that have little experience working with ELLs need a lot of help to provide appropriate assessments, there has been no targeted assistance for them.
We cannot make this law work on the cheap. Unfortunately, the Administration has not requested a single penny increase for the bilingual education program, which is obviously intertwined with how these students fare academically.
However, there are some good signs. For example, the Hispanic and im-migrant-serving community-based organizations throughout the country do see NCLB as an opportunity to increase achievement for Latino students and ELLs. These community-based organizations are not shying away from accountability; they are trying to hold their school districts and states accountable for the learning of these students.
We have a couple of recommendations, and we believe that there must be a lot of dialogue in Congress about NCLB. We do not expect anything to change in the immediate future, but when NCLB is reauthorized, we hope that several things will be considered.
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With respect to assessments, we do understand that many school districts have more than one hundred languages represented in their schools. Of course, a test cannot be developed for every language, because there are very few resources out there. However, given the fact that eighty percent of English language learners are Spanish-speaking, we believe that native language assessments in Spanish should be a priority. We should at least provide that and succeed in covering eighty percent of our ELLs, rather than doing nothing and covering none of them.
We also need more research on testing accommodations for ELLs, because the ones that are being used are mostly for students with disabilities. That is not always the right thing for our children. On general accountability, we believe that ELLs must continue to be counted as they are now. If they are not counted, then they will not matter. However, we encourage the use of multiple measures instead of just accountability based on one test. There are a lot of other measures that we could consider—for example, graduation rates and attendance rates. These alternative considerations are allowed under NCLB; however, they are not being enforced and encouraged as much as they should be.
Finally, we have recommendations on resources. The President’s budget eliminates parent assistance programs. We really need these programs to be well-funded. Obviously, we also need to increase our resources for bilingual education.
Now I am going to turn to the DREAM Act. Many people are familiar with the DREAM Act. I think that says a lot about the bill, its progress, and the advocacy that has been done at the local, state, and federal level on this issue. It is a well-known subject in the Latino community.
The bill is essentially a proposal that would do two things. First, it would facilitate state efforts to offer in-state tuition to undocumented students. Second, it would provide a path to U.S. citizenship for undocumented students who have grown up in the United States.
We estimate there are 65,000 immigrant students each year that have been in the United States for at least five years and graduate from high school here, but who cannot go on to college because of their immigration status. Although there are no federal or state laws banning their admission to college, the issue is one of affordability. These students typically have to pay out-of-state tuition or the type of tuition that an international student would pay to attend a public university in the state where they live.
These students have no access to grants or loans because of their status and, obviously, they cannot work legally for the same reason. They have no way to pay their way through college, especially when facing out-of-state tuition costs. We end up seeing a lot of these students drop out of school because they see no future beyond cleaning houses, working at McDonald’s, and getting other low-wage jobs. Unfortunately, we are missing out on a lot of talent.
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Many of you are familiar with Plyler v. Doe, a U.S. Supreme Court case.[114] It allowed students, regardless of their status, to be enrolled in U.S. K–12 schools, but it was silent on the issue of postsecondary education. So the only language that we have to guide current policy on this issue is two lines from the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which was passed with welfare reform in 1996.[115]
Essentially, IIRIRA says that states cannot offer a postsecondary education benefit to undocumented students unless they offer the same postsecondary education benefit to all U.S. citizens. Some states have interpreted this to mean that they cannot offer in-state tuition to undocumented students because then they would have to offer in-state tuition to every U.S. citizen, regardless of which state they come from.
However, nine states have worked with this language and have passed state legislation offering in-state tuition to anyone who has graduated from high school in that state and has lived in the state for two or three years, depending on the state. If you happen to be undocumented and do not have status, as long as you sign an affidavit saying that you will seek legal, permanent residency as soon as you are able to do so, then you qualify for in-state tuition.
The states that have adopted these acts are Texas, California, New York, Utah, Illinois, Washington, Oklahoma, Kansas, and New Mexico. It may be surprising to hear about some of the states that are included, like Utah and Kansas. However, there are actually about twenty other states trying to do the same thing, which is why we really need clarity at the federal level to make this process a lot easier for states who want to help these students.
The DREAM Act would create that clarity by repealing those two lines from the IIRIRA that make it difficult for states to offer in-state tuition. But it would go further and make sure that states see the full benefit of their investment in these students by allowing these students access to U.S. citizenship.
Under the DREAM Act, students would be eligible for conditional legal permanent resident status. If a student entered the country before the age of sixteen, has good moral character, graduated from a U.S. high school, and has lived here for five years when the bill becomes law, the student would get this conditional status for six years. That conditional status would be lifted and the student would get a green card after he or she has pursued college or served in the military for at least two years.
In terms of the chances of this happening in the political landscape today, we actually have a lot of bipartisan support. This is a bill that is spon-
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sored by both a Democrat and a Republican.[116] Nearly half of the Senate has officially signed on in support of this bill, and there are a lot more senators that would vote for it. About 150 members in the House of Representatives are also supportive.
Jesse Ruiz: I am thrilled to be a part of this discussion. However, I might have switched the order of the panels. Today, we started out with immigration, then heard about wealth creation, and now we are talking about education. I think there is a progression from immigration to education, and then finally to economic empowerment and building wealth in the community.
My parents came here as Mexican immigrants; my dad was a bracero. From 1943 to 1947, he picked crops all over the country. He then stayed here illegally for eight years before he went back to Mexico, got his papers fixed, met my mother, came back, and raised me and my three older sisters on the South Side of Chicago.
My parents always told us that the only legacy they were going to leave us was our education. My father never made more than a low hourly wage, but when I was growing up on the South Side of Chicago the public schools were not a good option. So my parents spent their money—the only money they had to spend—on sending us to private schools. In that way, I feel I got a good education, and I thank them for their insightfulness in doing that and giving me one great legacy.
Some folks ask me, “Why are you, a corporate lawyer, involved with education?” There are two reasons. First, I am honoring my parents’ emphasis on education and their hard work. When I was in school, I did this by studying hard and getting good grades. Now I do it by working so that others have the opportunity my parents worked so hard to give me. Second, I happen to represent a group of legislators in Illinois. When they were forming the Latino Caucus, the thirteen Latino legislators in Illinois were looking for a Latino corporate lawyer. Believe it or not, there are not too many in Chicago. They found me, and I befriended that group and represented them for three years.
One of the leaders in educational reform in Illinois is State Senator Miguel del Valle. Last fall, Senator del Valle pushed for reform when there was a debate between the governor of Illinois, Rob Blagojevich, and the legislature. The governor wanted to bring the State Board of Education in-house and make it an executive department, but the legislators did not want to politicize the education officials’ office too much. However, I have learned that education is very political.
Senator del Valle struck a deal in which the Board of Education would remain outside of the executive branch in exchange for the legislature
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giving the governor the opportunity to appoint seven of the Board’s nine members. The governor’s office would also be very involved in the search for the State Superintendent of Education. Before this compromise, the governor would come into office and inherit a State Board of Education. Governors really could not impact education policy, because they did not appoint the superintendent or any of the board members.
Under the former structure, the Board of Education did not answer to the governor’s office, and there was not a lot of accountability. For better or for worse, I do find that in general the buck does stop on the governor’s desk. So I can understand his rationale for wanting to be involved by having the power to appoint seven out of nine of us.
I was appointed chairman on September 14, 2004. Some folks asked me, “You have no experience with education beyond having shown up for class, so why are you chairman of the Board of Education?” In fact, State Senator del Valle asked that same thing. He said, “Yes, I recommended you, but I never thought they would make you chairman.” He was literally shocked. He walked in to the State Capitol on the day they were making the appointments, and I thought he was going to faint.
The rationale behind my appointment was that they wanted somebody who knew how to run a board, which is something corporate law teaches you. It was also important to have somebody who was going to come at these issues with fresh approaches and new ideas. I did a brief stint in management consulting in my career, so I can approach the problems of education as a consultant. I like to form my hypotheses, collect data, use the scientific method to make data-driven decisions, and try to improve the processes of the Board of Education. So far, that is what we have done.
Of course, between the other eight board members there are collectively around 250 years of formal education administration experience. Half of them have doctorates in educational administration. Most of them are retired and so have spent over thirty years in education. It is interesting to talk to these folks who are, on average, about twenty years older than me, and yet we still seem to get along.
The State Board of Education in Illinois sets the policy for 878 school districts across the state. These districts are very diverse. They range from large urban districts, Chicago being the largest, to one-school rural districts in the far southern tip of Illinois.
We have a budget of approximately eight billion dollars, but even this is not enough. About 17% of the approximately 2.4 million preschool–12 students in Illinois are Latinos, and the bulk of those reside in Chicago. In Chicago, the Latino student population makes up 40% of the general student population.
The goal is for these students to receive higher education. The Board of Education must help them during the years from preschool through twelfth grade. The Board must help make sure that they are prepared to
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go to college. This is especially important when we consider the achievement gap in high school education in this country. In 2003, while 89% of whites over age twenty-five had graduated from high school, only 57% of Latinos had done so.
The gap is obvious. But what can we do about it? I can tell you about some of the things we are trying to do in Illinois.
On the day we were appointed to the State Board of Education, the governor gave us several mandates. The first mandate was to deal with an incredible backlog of teacher certifications. The State Board is responsible for certifying all of the state’s teachers. In the era of NCLB, given the need for highly qualified teachers, this is an important function. However, the Board was very behind, and this was becoming a burden to teachers. We needed to make sure they spent less time worrying about administration and getting their certifications, while still ensuring that we had quality teachers in the classroom. We cleaned through the backlog and brought the certifications up to date.
The governor also wanted us to help the districts save money. We are unable to provide more money than what we are already distributing. However, financing is a huge issue, so we are trying to help districts be more creative. For example, we are reducing the amount of administrative rules with which they are obligated to comply. There are 1700 pages of administrative rules in Illinois that are promulgated under the School Code.[117] It is quite burdensome for many of these districts to comply with all these rules, ranging from the number of days they have to go to school to the number of physical education classes they have to provide. We are currently working through those.
Two other issues are a little harder to get a handle on. The governor wanted us to be more collaborative with districts, so we have focused on increasing services. We set up an e-mail account through which we have gotten hundreds of suggestions to reduce time wasted maneuvering through red tape. It is always interesting to read these letters. We try to implement a lot of the ideas and report back to the districts on what we are doing. We also focus on simple things, including returning phone calls in a timely manner and making sure that there is reasonable “customer service.” We want to make sure that we are not an administrative anchor around the educators’ necks, but that we are actually facilitating the process of education in the state.
The last challenge the governor gave us was to come up with innovative ideas. That was a tough one. He directed us to focus on three things: preschool, early reading, and parental involvement. We are currently crafting a strategic plan to address those issues.
The governor has helped us on the preschool question by providing funds for an additional 16,000 preschool slots in Illinois. We also provide
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grants. I recently had a chance to visit the Cicero-Berlin area of Chicago, a suburb that has a high concentration of Latinos. There are not enough preschool slots in Cicero-Berlin to serve the growing community. We are trying to give grants to community organizations and work with a community network of daycare providers to help them hire a certified teacher. We are having them collaborate and use creativity to ensure that there is access to preschool for those children who are in daycare, even those who are in licensed private home daycare.
One issue that has come up that was especially interesting to me as a lawyer. I studied Plyler[118] in law school under then-Lecturer in Law, Professor Barack Obama, during my second year. A similar issue came up in Illinois when MALDEF pointed out one district which had denied a preschool student admission on the basis of her immigration status. I was happy to jump in on that case. Two months ago, the State Board changed the administrative rule to require access to education for all children, regardless of their immigration status. The old administrative rule had only covered K–12.
As a Latino, it felt great. And as a lawyer, to take what Barack had told me about Plyler v. Doe and apply it to this case was wonderful.
We also got House Bill 60, the In-State Tuition Bill, passed.[119] Two years ago, State Representative Edward Acevedo put forth the bill to make sure that undocumented Illinois students who were residents of the state could avail themselves of in-state tuition.
These students still cannot get federal funding for grants and loans, but at least allowing access to in-state tuition makes higher education more attainable. They are now able to attend schools like the University of Illinois at Chicago, which is a fine public university within the Chicago city limits, and which has a high concentration of Latino students who commute to the school. Paying in-state tuition makes a big difference in helping them get their degrees.
The governor also recently signed Senate Bill 2918.[120] In Illinois, we have almost a fifty percent dropout rate for Latino students. The bill raises the age at which a student can voluntarily drop out. We are also lowering the mandatory age to enter elementary school. In Illinois, a child was not required to attend school until age seven. I thought it was hypocritical that we were promoting preschool, and yet legally a child was not required to go to school until seven. The age is now being dropped to five; in other words, kindergarten is now mandatory.
Preschool is not mandatory; unfortunately, I do not think there would be enough funding if we did make it mandatory, because there would not be enough buildings to house all the children. Lack of proper facilities is
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already a problem in Chicago, as it is in a lot of urban centers. In the cities, populations move around and shift. Areas with adequate school facilities may not have enough kids. Areas with many children may not have enough school buildings. Then you have to bus students to the school facilities.
For example, near the Gold Coast of Chicago, which is a very affluent area, there was a building that was empty. Now it is used by a high-performing school with all bilingual education and a one hundred percent Latino student population. Yet, those kids are all bused from the Latino area of Pilsen, because they do not have an available building in that area. It is a difficult problem to solve, because we do not have the capital funds to build more schools in the areas where schools are needed.
Another initiative in Illinois is something called the GRADS initiative, which stands for “Getting Results, Achieving Dreams and Success.” GRADS gives resources to targeted communities and develops innovative approaches to help students graduate with a high school diploma. It basically supports services like mentoring, after-school programs, and working with teachers to develop alternative curricula.
Another initiative seeks to deal with the number of students taking college entrance exams. In Illinois, students primarily take the ACT.[121] So, a few years ago we made it part of their Prairie School Achievement Exam. In other words, taking the ACT is now mandatory. Before, a lot of the students were not taking the test, and then could not apply to college because they did not have those test scores. Now we have many more students taking the ACT, and thus many more students applying to college. Since 2001, the number of minorities enrolled in Illinois colleges has increased by seventeen percent. This effort is part of our strategy to get students to realize that they have to prepare for the next step in order to move forward.
This effort has brought other issues to the surface. The biggest problem for the students who took the test was that many of them expressed a desire to go to college, and yet many of them were not prepared in terms of the coursework they had taken. The governor’s recent proposal, which the State Board of Education supports, is to make the high school graduation requirements more stringent.
I went to a Catholic high school, so I had to take four years of math. I had to take three years of science. I had to take four years of English, and I assumed everybody else did. I was shocked to learn that that was not the case in Illinois public schools. Some students are getting out of high school with only one year of math. This is unacceptable, and we realize we are do-
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ing them a disservice. They may graduate, but we have not prepared them for college.
We are trying to make algebra and geometry mandatory. We want students to have four years of English, two years of science, and three years of math. The requirements will transition over a period of five or six years, but we want to get the students better prepared. Even if they get into college, they may not finish their degrees if they are not prepared. They may go to community colleges, but they may not be able to transfer to a four-year program if the academic challenges are too high.
Finally, the biggest issue we are facing in Illinois is adequacy and equity in funding. Latinos in Illinois are in large urban districts that traditionally do not have a large tax funding base. Education in Illinois, as in many other places, is primarily financed through property taxes. The wealthier districts that have multimillion-dollar homes in the North Shore suburbs of Chicago can afford to spend $20,000 per pupil, whereas in Chicago, we spend somewhere closer to $4,000 to $5,000 per student.
So how do we change that funding gap? There is a bill pending in the Illinois legislature that State Senator Miguel del Valle is pushing. This bill, Senate Bill 750, would in essence create a tax swap. It would raise Illinois’s income tax from 3% to 5%, allowing the state to have more money in its coffers so that it can, through general state aid, give it to those districts that need it most.[122] In exchange, there would be about a 20 to 30% decrease in the property tax.
The governor opposes this measure, obviously because it is not good to have an income tax increase when he is facing reelection in one year. This is how politics impact the funding of public education.
Gary Orfield: It is an honor to be here, and to talk about what I think are some of the most important issues facing education in the United States today. In the mid-1960s, our schools were perhaps 3% Latino. Now, about 17% of our students are Latino. We are moving toward a society where 30% of our students will be Latino by the middle of this century.
We have an educational catastrophe that is not just theoretical, but that has already happened. We are losing about half of our Latino students before they finish high school. Most of those students are in high schools that are visibly inferior in every respect, and extremely segregated. Often, these schools are segregated by race, by poverty, and by language. Latino students are in schools that do not adequately prepare them for postsecondary education. They have less experienced teachers, and they have more teachers teaching out of their subject of expertise.
There are almost no effective provisions in high school for non-Eng-lish-speaking students and there is virtually no curriculum for them. Their average achievement often declines during high school. Additionally, there
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are some states in which large numbers of students immigrate during their high school years.
For college, there is a whole set of barriers facing Latino students. There are testing barriers: English language exit tests from high school, entrance tests into college, tests between second and third year preventing the movement between community colleges and four-year colleges. Other obstacles include inadequate financial aid and inadequate provision of spaces in the states where the Latino population is growing. Many students are ineligible for financial assistance because they do not have U.S. citizenship status.
In college, we have a tremendous dropout rate and a very disproportionate concentration of Latinos in community colleges. On community college campuses, there is very little successful transfer to four-year colleges, and for Latino students who do make it to four-year colleges, there is a large attrition rate.
We have a problem at every level that is very serious. Instead of addressing it, we are compounding it. NCLB is singularly designed to hurt schools where language-minority kids are concentrated. One of my students did a study that showed that every single middle school in North Carolina that has a language-minority population is already being sanctioned. The Act is designed with almost no understanding of the conditions of a school with a high language-minority population. It is designed with very little assistance for, and many sanctions enforced on, these schools.
Let me go through some of these issues and talk about their legal and policy dimensions. First of all, the isolation and segregation is extraordinary. The right of Latino students to desegregated education was recognized by the Supreme Court in 1973, in Keyes v. Denver.[123] It was basically not enforced except in Colorado; almost every other state has experienced increased segregation since that decision.
We did not collect data on Latino students in the United States in any significant way until 1968. Every year since then, isolation has increased. In 1970, the average Latino student in California was in a 53% Anglo school. Today, on average, Latino students attend a school with a non-white population of around 90%. The Latino students in California are much more segregated than black students in Mississippi or Alabama, and have been so for quite a while. Almost always, the segregation is based on poverty as well as ethnicity. The probability is about nine out of ten that a child in a segregated Latino school will also be in a high-poverty school.
Increasingly, Latino students are in schools where there are few native English speakers. You must add that reality to the fact that the right to bilingual education, which was established in some of our court orders
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and under regulations following the Lau v. Nichols[124] decision by the Supreme Court, has almost been eviscerated in a number of states. It is now illegal to conduct bilingual instruction in any significant way in California, Arizona, and Massachusetts, and the practice is also being abandoned elsewhere. Many state laws allowing bilingual education have been allowed to lapse; there is no enforcement of this right at all from the federal Office for Civil Rights.[125]
Catherine Snow, a professor at the Harvard University Graduate School of Education, who headed a committee for the National Academy of Sciences, wrote that it is very difficult for a student to learn to read in a language they cannot speak.[126] If they have not learned to speak English, they are not going to be able to use it effectively. We have a very serious problem, because the children who need to become fluent in English need to interact with children who are already fluent in English at an academic level. However, they do not have that opportunity, because they do not have contact with them. Very few foreign language majors in the United States can speak the language they studied unless they have lived abroad and interacted with native speakers.
This is a huge problem, because we are putting up very strong barriers in the form of examinations. Most states now have mandatory exit tests from high school, and many have grade-promotion tests that require fluency in academic English. Yet we do not have procedures in our schools to get these kids fluent in academic English, and it will not happen naturally in their communities.
In high school, we have a catastrophe in the ninth grade transition for Latino students, which feeds the high Latino dropout rate. This is particularly true in segregated urban schools that we call the “dropout factories.” Most of these schools, which have very high concentrations of minority and impoverished children—which are often one and the same—graduate less than half of their students.
Almost all of our states are publishing graduation rate data that is completely fraudulent. Our book, Dropouts in America, documents this situation.[127] For example, California is reporting about a 3% dropout rate, and it is actually about 50% for Latinos and blacks. In Texas, it is even higher, and they are reporting a 1% dropout rate.
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There was a big conference in California recently, where we revealed accurate dropout statistics for California. The data we presented has sparked controversy around the state, because the state has admitted that it has no idea how many students actually graduate, and that there is not even a system in place for tracking that data. The state is relying on school principals to indicate whether or not kids have dropped out, but there are many ways administrators can classify a child as “not dropping out” when he or she does not graduate.
The transition into high school is when students start failing. They cannot take their classes, because they are not ready for them. They have not received academic counseling, and they enter into the wrong classes. Many of these high-poverty urban schools do not even offer necessary courses taught by qualified teachers. In other words, needed classes either do not exist, or they are watered down because of the students’ low level of average preparation. Either way, students do not learn the subject. Then they are exposed to a high-stakes test on something they have never been taught.
The most important factors that affect a child’s achievement level on standardized tests are his parents’ education, the peer group with which he is associated, and the qualifications of his teacher. All of these things are systematically unequal in these segregated, “dropout factory” high schools.
For students who enter these schools not speaking English, there is very little support. In theory, in many states, they are supposed to be brought in with sheltered instruction in their native language equivalent, in terms of material, to the material being taught in the mainstream classes. However, there is rarely any kind of adequate curriculum available in the student’s native language; the districts and states simply have not developed it. The teachers may be able to speak the child’s language, but oftentimes they are not experts in the subject matter. So sheltered physics or sheltered biology is likely to be taught at virtually an elementary level.
These are basic concerns. Almost none of these students can pass an English-language exit test from high school, and there really are no exit tests given in their native language. The Mexican government is actually trying to export curriculum to the United States to help some of these students. There are ten million people in the United States who are Mexican citizens, and their children are in schools where there is no curriculum for them. Mexico publishes 900 million textbooks a year, which are all free under their laws. They have actually offered them to some American school districts; as of yet, none of these offers have been accepted.[128] The Mexican government does not know how to negotiate with 13,000 school districts.
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Basically, many of these schools just have nothing to offer these children; they are simply put in custodial holding classes. If a student continues to attend these schools, there is a very low exposure, for example, to AP courses. Based on the admissions formula for colleges, students receive extra credit for taking AP classes. If AP classes are not offered at the student’s school, the student cannot access this benefit. The ACLU in California has filed a lawsuit regarding this issue.[129] But this is the general pattern across the country: many high schools with a large population of Latino students do not offer college-prep curriculum taught at an appropriate level.
There are also many other challenges facing the students in these communities, particularly the young men. The Justice Department predicts that approximately one-sixth of young Latino men are going to end up in prison. Of course, gangs and other kinds of problems are serious threats to the lives and educational success of our children.
Families in these communities have very little information about college. Without information, students are not likely to take the right courses or understand the college system. Moreover, four-year colleges typically do not recruit seriously in these schools, because they do not think any of these students are ready to succeed in college classes.
These schools in some ways are a giant lie, because they tell students they are doing okay, but the students develop no skills that will help them in the larger world. It is assumed that the best students in these schools will fail out in the first semester at any decent four-year college. Research shows that an “A” in a central city school is equal to a “C+” in a suburban school. However, the problem is, if we raise the standards, we increase the catastrophic dropout rate even more.
These problems are particularly severe because we do not know how to run high-poverty high schools in a functional way. Only minorities end up in these schools. Whites who are in these schools, in places like rural Appalachia, have similar kinds of problems. A poor white is much more likely to be in a middle-class school than a middle-class black or Latino.
We need to do something to give students choice so that they can exit these schools. In theory, there is a choice under NCLB. The Act says that if students are in a school that is failing to make adequate yearly progress toward a very high standard that should be achieved everywhere by 2013, they have a right to choose to go someplace else. In fact, we have researched NCLB in high-poverty school districts around the country, and there are almost no good transfer options available for these students. So it is a false “right.” To make it a real right, the choices would have to include suburban schools.
We must create desegregation rights for the students who have never gotten them. For example, in many places in the South, court orders in de-
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segregation cases involving black students have been terminated and desegregation rights have been eliminated before those rights could be recognized for the huge Latino populations coming into places like North Carolina, Georgia, and other parts of the country. Federal court decisions are eliminating rights that were never extended to what is now becoming a very large population group.
We ought to think about how to produce pre-college instruction and advising in schools that have high poverty concentrations. These schools are financed in such a way that a certain number of students must be able to take a course before it can be offered. So we either have to figure out methods of transferring students out of these schools to create adequate concentrations of students, or we have to be willing to pay for small classes. If we just offer “pretend” classes and water down the curriculum, students will not be able to make it when they arrive at college.
When Latino immigrant students think about going to college, the immigration status issue is just a tiny part of the problem. Even in the states that have made rights available for students regardless of their status, the students cannot afford to go, or cannot pass the tests to get in. We have to think about all of these issues as multiple dimensions of the problem of access to higher education. Each of these issues must be overcome for a student to actually get into college and complete a degree. We must examine the fairness of using English language tests as a primary measure and reconsider factors like the use of AP credits as the primary means of admission to college. These indicators really do not measure the true capacity of a student to benefit from college.
We also have to think seriously about financial aid. Many of our states are now shifting from need-based aid to aid to the students with the highest test scores, and Massachusetts is one of them. This is a very serious problem because almost no Latino students, especially those with immigrant backgrounds, would ever qualify for those grants. So making a decision to change aid from grants to loans, from so-called need to so-called merit, and so forth, is really a decision about what happens to Latino students.
When we think about higher education, we have to think about holding community colleges responsible for what happens. There is an extremely low successful transfer rate in the community colleges where most Latino students are concentrated. This demonstrates a continuation of the pattern of segregated high schools. Much of the instruction in these community colleges is at the high school level. Students do not receive information on transferring, and very few students transfer to a four-year college. Students also have difficulty understanding the college financial aid system. And of course their parents, particularly if they are immigrants, find the entire system incomprehensible. Often, if the parents are divorced or one of them is in another country, there is no way the family can comply
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with the requirements necessary to get a Pell grant. Without that grant, the chances that a student can actually go to college are minimal.
This reality is significant if Latinos are going to actually have access to higher education. The 2000 Census shows that only one of nine students in the Latino community is getting a post-secondary baccalaureate degree. People with those degrees get almost all the gains in our society, while people with high school diplomas or less can look forward to a continuous decline in their standard of living. This situation has already been going on for thirty years, and it will only continue in the kind of economy that we have.
To actually increase the numbers significantly and change the outcomes for Latinos, we must start looking at the Latino population and thinking about what it actually needs. In the Latino community, we do not have a leaking pipeline to college; we have a sieve. Most of the children drop out; most of the children do not make it. It is not a “pipeline” if only one-ninth get through; it is a catastrophe. We have to think about how to solve these problems at every level.
A few of the concerns surrounding Latino education are rights issues, but a number are priority issues about expending public funds. For example, we made a big investment in expanding higher education when the last generation, the baby boom, came to school in our Sunbelt states, like California and Texas. However, we are not making a similar effort for the immigration boom; we are writing these children off. There will be a huge cost as this society develops if we do not correct it.
So we need to think in political terms to explain the necessity for making serious investments, and in sociological and educational terms to recognize where this pipeline is hemorrhaging and how to repair it. We need to think about actually enforcing some of the rights that simply have not been enforced.
Student: I have a question for Dr. Orfield and Ms. Lazarin about NCLB. The Attorney General of Connecticut recently said that he is going to file suit against the federal government based on the statutory provision that says that the law can have an unfunded mandate.[130] What do each of you think about that litigation strategy in terms of increasing school funding and following through on the promise of this law?
Gary Orfield: On this and many other issues I discussed, there is material on our website.[131] Right now, there are many actions coming up to challenge NCLB. It would not be good if the law were just ruled illegal and nothing else happened, because there are some very good things in the Act, such as data to give us some accountability leverage on the schools,
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the expectation that we get qualified teachers in all the classrooms, and so forth.
Now, these provisions have not been enforced very well. There is also dropout accountability, which has not been enforced at all. However, I would not like to see the whole Act go down, and I do not think the Court is going to order Congress to fund it. I am afraid that it would just suspend its requirements.
What we need to do with this Act is to revise it seriously. We have a definition of “adequate yearly progress” which is just unreasonable. No school system has ever achieved it. It requires all children to be above average and results in very disproportionate requirements and sanctions directed to Latino schools. These provisions are being enforced in a counterproductive way, which is leading qualified teachers to exit these schools rather than to enter them.
In sum, we need to think about ways to make the good objectives of the Act actually work, and to engage in serious debate about those methods. So I think the court actions are a good idea to get people’s attention and to raise the political issue, but I do not think they are likely to produce a really educational solution.
Melissa Lazarin: I agree. There is a lot of backlash happening against NCLB in Connecticut, Utah, and many other states. Litigation is an important tool to use and to bring these issues to light by spurring a lot of dialogue. Hopefully these court challenges will help the administration and the Department of Education understand that this law is not perfect, and that we cannot be afraid to tinker with it. We cannot be afraid to open it up again and look at what some reasonable changes are.
This law is here to stay, and the testing is here to stay. We really need to put more resources into it and look at what we can do with it, and how we can improve it in the future.
Student: I would like to learn a little more about the success of the New Mission School, and the process that it went through to be created as a pilot school. It must have been a long, arduous process, and I would like to hear more about it, and its success.
Heydi Foster: It was a nightmare. It was a four-year process, and we had to fight with the school district. We had to fight with everybody. We applied, I think, three or four times. Our proposal was denied every time.
Finally, we started teaching in the projects of Roxbury, and at the time, I had no idea where I was teaching. All I knew was that people were asking me with concern, “You’re teaching in Roxbury?” I had no idea that the neighborhood meant drugs, prostitution, and so much poverty. I had no idea; I had no concept of it. Perhaps that was a blessing, because otherwise I probably would not have done it. I had no idea of what I was getting into. I acted out of pure ignorance and the desire to help. And self-interest, of course, based on the desire to have my children go to a better school.
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The first year we got two thousand dollars less per kid than any other Boston school. And again, we had no idea. Besides the Fenway School, we were the very first pilot school to open, so we had no idea how to handle the district. But the second year, we came together as a unified force, and they granted us exactly the same money as any other Boston public school. That made a huge difference.
We did not get any startup cost money; we did not get anything the first year. We found an abandoned building in Roxbury, and that is how we began. We had no desks, we had nothing! But we involved the community. We involved the parents. We involved the Latino community and the African American community. And we started to apply for grants, which we did not know that we were not supposed to do. But we did not know, so we got a lot of money. When they came and told us that we were not supposed to do that, we just said, “Oops, sorry, we already have the money.” That money made a huge difference.
Hiring was also a huge issue. We created partnerships with the teachers’ union, the Latino community, and foundations and corporations that wanted to make a difference. We hired from all over the country. Again, we violated a lot of rules. I am not advocating for that, I am just saying it is something that worked for us, partly out of ignorance. We did not know that we had to go through the teachers’ union to hire people. Well, we kind of knew, but we wanted to have access to teachers that were familiar with the culture and that were good at their subject. We brought in scientists from NASA, and we had people from everywhere who wanted to teach but who did not have certification. But they had master’s degrees and they had doctorates. And they were Latinos. So we went through a lot of hoops to get them.
One problem that we currently have is a very high teacher turnover. We keep hearing, “I love to teach. I want to stay, and I want to make a difference. It is just too hard.” Our teachers last about two to three years, and then they either go to private schools or they go back to the private sector. We have not been able to solve that problem. I am an example of it. I am burned out, and I cannot do it anymore. I do not have an answer to that.
There are things that have worked for us, but there are other problems that we have not been able to solve, including teacher retention. It is a huge issue for us, because we lose a lot of expertise when we lose teachers. We spend a lot of money training staff, and we spend a lot of money on curriculum and materials that teachers will feel comfortable with. Then, every time we lose a teacher, we feel that we have to train a new person. We just do not know how to fix it.
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Marie Scott[∗]
The Development, Relief, and Education for Alien Minors (“DREAM”) Act has been a key issue for Latino and immigration advocacy groups since it was first introduced in 2001.[132] As Melissa Lazarin of the National Council of La Raza stated in her comments at the 2005 Harvard Latino Law and Policy Conference, the DREAM Act has become “a household name in the Latino community.” The Act concerns the estimated 65,000 students who graduate from high schools in the United States each year but who, because of their lack of legal immigration status, are severely limited in their ability to attend college.[133] The DREAM Act would allow states to grant in-state tuition eligibility to all state residents regardless of immigration status, and therefore make college a more affordable option for undocumented high school graduates. Despite bipartisan support, the DREAM Act has twice stalled in the Senate and was reintroduced in November 2005. A parallel bill in the House of Representatives has also failed to produce a vote.[134] The lack of action on this basic issue in the Latino agenda signals the unresponsiveness of Congress to the needs of the growing Latino population.
The DREAM Act addresses two issues. First, it seeks to repeal Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) that prohibits states from extending the identical benefit of in-state tuition enjoyed by legal residents of the state to undocumented students who reside within the state.[135] Second, it creates a pathway for undocumented high school graduates to gain legal immigration status while pursing a college degree or completing two years of military service.[136] For this subset of students, the provisions of the DREAM Act are particularly critical, because other means of financing a college education are closed to them, including government loans, federal financial aid, and the ability to work legally to support themselves while in school.
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While Congress has continually neglected to act on the matter, the issue of in-state tuition for undocumented students has received a lot of attention in the state legislatures. At least thirty states have considered legislation regarding undocumented immigrants’ access to in-state tuition.[137] Nine states—Texas, California, Utah, New York, Washington, Oklahoma, Illinois, Kansas, and New Mexico—have passed legislation that guarantees in-state tuition for students who graduate from state high schools and who have resided in the state for a certain number of years.[138] Conversely, a number of states have considered bills that would expressly forbid in-state tuition benefits for undocumented students, while a few states have considered both bills to award and bills to restrict access to in-state tuition.[139]
The large amount of state legislative activity regarding in-state tuition and undocumented students stands in contrast to Congressional unwillingness to consider the issue. Debates surrounding these state bills often include questions of whether the state action would violate Section 505 of IIRIRA. For example, the governor of Maryland vetoed that state’s equivalent of the DREAM Act, claiming that it was preempted by federal law.[140] Although state DREAM acts do not seem to violate Section 505 since they demand undocumented students meet tougher residency standards than other students to qualify for in-state tuition benefits, the confusion has led to frustration for both state legislatures and students.[141] In Massachusetts, one of the most recent states to consider the in-state tuition issue, the legislature voted nearly unanimously to urge Congress to act on this issue before ultimately voting to defeat a state DREAM act proposal.[142]
State DREAM acts have become targets of litigation in the absence of clear federal law on the issue. A lawsuit filed in Kansas by non-resident students was dismissed because the court held that plaintiffs lacked standing.[143] However, that decision is now being appealed to the 10th Circuit Court of Appeals.[144] A recent suit filed by out-of-state students against the University of California system has drawn national attention. The stu-
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dents are challenging the legality of Assembly Bill 540, the California law that allows students who have graduated from California high schools to pay in-state tuition in the California public university system.[145]
Echoes of the wider immigration debate can be heard in the rhetoric surrounding the DREAM Act and corresponding state initiatives. Any policy that supports immigrants and finds a way to bring them out of undocumented status is a target in today’s environment, even one that benefits the entire society by helping to achieve the laudable goals of an educated workforce and equal educational opportunity for all children. In the Senate report offered on the last failed introduction of the DREAM Act, Jeff Sessions (R-Ala.) blasted the DREAM Act as “legislation [that] erodes the rule of law and promotes future illegal immigration.”[146] After the Massachusetts bill to grant in-state tuition failed in January 2006, a legislator who opposed the bill declared, “America is fighting for its sovereignty today.”[147] In contrast to the politicians’ and plaintiffs’ lawyers’ verbal posturing on the issue, a young high school graduate from Massachusetts who is undocumented and unable to attend college due to the expense, voiced the reality of the DREAM Act’s impact on the larger issue of illegal immigration, saying: “When you are facing poverty, war or hunger at home, you’re not choosing a state based on an in-state tuition rate.”[148] People who make the difficult choice of immigrating to the United States without proper authorization are not motivated by the idea of receiving in-state college tuition for their children.
Although enacting the federal DREAM Act may seem minor, especially since over fifty percent of undocumented students live in states that have state DREAM acts,[149] the presence of Section 505 of IIRIRA continues to confuse state legislatures and invigorate challenges against the state legislation. It may even be difficult to understand why this issue is so important to Latino advocates and the immigrant community when the 65,000 students that this might affect each year represent an insignificant percentage compared to the estimated 10 million undocumented immigrants in the United States. However, it symbolizes a crucial choice both to the Latino community and to those who have trouble coming to terms with the continued growth of this largest minority population. In the face of a changing immigrant population and a growing Latino community, will this country chose sensibility and compassion when considering the
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difficulties that will arise, or will our nation’s leaders ignore the concerns of those populations in a shortsighted effort for political gain? As James Montoya noted in the panel discussion, the idea of the U.S. population being twenty-five percent Latino is exciting to many. However, even for those who are not excited about that demographic likelihood, it remains the reality of our future, and the entire country will be affected regardless of race or immigration status if the concerns of the Latino population are ignored and their children are denied the opportunity to be properly educated. The Latino community faces enough barriers in education with segregation, poorly funded schools, and high dropout rates without Congressional inaction prematurely squelching the potential of some of its most intelligent, hard-working, and promising students.
[1] See, e.g.,
Perry v. Del Rio, 67 S.W.3d 85 (2001); Richards v. League of United Am. Citizens,
863 S.W.2d 449 (1993); Edgewood Ind. Sch. Dist. v. Kirby, 804 S.W.2d 491 (1991).
[2] See, e.g., the Immigration
Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (codified
as amended in scattered sections of 7 U.S.C., 8 U.S.C., 18 U.S.C., 20 U.S.C.,
29 U.S.C., 40 U.S.C., and 42 U.S.C.). This statute was sponsored by Sen. Alan
Simpson, with corresponding legislation in the House of Representatives sponsored
by Rep. Peter W. Rodino, Jr., H.R. 3810, 99th Cong. (1986) (enacted).
[3] Illegal Immigrant Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified
as amended in scattered sections of 8 U.S.C.).
[4] See, e.g., H.R. 4313, 109th
Cong. (2005); Comprehensive Immigration Data and Technology Accountability
Act of 2005, H.R. 4412, 109th Cong. (2005).
[5] U.S. Comm’n on Immigration
Reform, Becoming An American: Immigration and Immigrant Policy (Report to Congress,
1997), available at http://www.utexas.edu/lbj/uscir/becoming/full-report.pdf.
[6] Id.
[7] See, e.g., Wayne A. Cornelius &
Enrico Marcelli, The Changing Profile of Mexican Migrants to the United
States: New Evidence from California and Mexico, 36 Lat. Am. Res. Rev.
105 (2001).
[8] 1994 Cal. Legis. Serv. Prop. 187
(West).
[9] The Personal Responsibility and
Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat.
2105 (1996).
[10] The Immigration Act of 1990,
Pub. L. No. 101-649, 104 Stat. 4978 (codified as amended in scattered sections
of 8 U.S.C.).
[11] See generally Mike Allen, Bush
Proposes Legal Status for Immigrant Labor; Workers Could Stay Six Years or
More, Wash. Post, Jan. 8, 2004, at A01.
[12] Oscar Arias Sánchez
served as President of Costa Rica from 1986 to 1990. In 1987, he won the Nobel
Peace Prize for his work to bring peace to Central America. See generally Nobelprize.org, Oscar
Arias Sánchez—Biography, at http://nobelprize.org/peace/laureates/1987/arias-bio.html (last
modified Jan. 16, 2006) (on file with the Harvard Latino Law Review).
[13] U.S. Census Bureau, U.S. Dep’t
of Commerce, P20-535, The Hispanic Population in the United States: March 2000
3 (2000), available at http://www.census.gov/population/socdemo/hispanic/p20-535/p20-535.pdf.
[14] Dep’t of Justice, Guidance
Regarding the Use of Race by Federal Law Enforcement Agencies: June 2003 (2003), available
at http://www.usdoj.gov/crt/split/documents/guidance_on_race.htm.
[15] Dep’t of Homeland Security,
The Department of Homeland Security’s Commitment To Race Neutrality in
Law Enforcement Activities (2004), available at http://www.dhs.gov/interweb/assetlibrary/CRCL_MemoCommitmentRaceNeutrality_June04.pdf.
[16] Ricardo Alonso-Zaldivar, Airport
Worker Arrests Assailed as Too Sweeping; Though No Terrorists Have Been Caught,
Federal Officials Defend The Action. Critics Say Immigrants Are Among The Hundreds
Held, L.A. Times, Nov. 19, 2002, at 12.
[17] See, e.g., James Janega &
Robert Manor, U.S. Raids 60 Wal-Marts; 250 Night Workers Rounded Up in Immigration
Blitz, Chi. Trib., Oct. 24, 2003, at 1.
[18] See, e.g., Border
Patrol’s Searches Protested, San Diego Trib., Sept. 29, 2004, at
B2.
[19] Violence Against Women Act
of 2000, Pub. L. No. 106-386, 114 Stat. 1491 (codified in scattered sections
of 42 U.S.C.).
[20] Clear Law Enforcement for Criminal
Alien Removal (CLEAR) Act of 2003, H.R. 2671, 108th Cong. 101–02 (2003).
[21] See, e.g., Louis Sahagun &
Lance Pugmire, Officer in Videotaped Attack To Stay on Duty; Internal Probe
Focuses on Deputy Shown Hitting Undocumented Worker, Riverside Sheriff Says,
L.A. Times, May 2, 2003, at Part 1, 2.
[22] Cubas et al. v. Pataki et al.,
No. 04112371 (N.Y. Sup. Ct., filed Aug. 27, 2004).
[23] Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 276 (codified
as amended in 8 U.S.C., 12 U.S.C., 15 U.S.C., 18 U.S.C., 22 U.S.C., 28 U.S.C.,
31 U.S.C., 42 U.S.C., and 50 U.S.C.).
[24] All Things Considered, Immigrant
Detainees Claim Brutal Treatment and Abuse By Guards and Dogs At The Passaic
County Jail in New Jersey (NPR radio broadcast Nov. 17, 2004).
[25] MALDEF filed at least one of
these lawsuits in conjunction with the Southern Poverty Law Center. See
generally SPLC Report, Migrants Sue Vigilantes for Violent Assaults (June
2003), available at http://www.splcenter.org/center/splcreport/article.jsp?aid=30;
Andrew Pollack, 2 Illegal Immigrants Win Arizona Ranch in Court Fight,
N.Y. Times, Aug. 19, 2005, at A16.
[26] This term refers to a controversial
civilian group who, beginning in 2005, patrolled the U.S.-Mexican border in
order to deter persons from illegally entering the United States. See generally Scott
Gold, Border Watchers Gear Up for Expanded Patrol, A Grass-Roots Group Has
Big New Plans: Covering All 2,000 Miles Between the U.S. and Mexico, L.A.
Times, July 3, 2005, at A22.
[27] Ariz. Rev. Stat. Ann. §§
13-901.01–13-901.02 (2006).
[28] 1994 Cal. Legis. Serv. Prop.
187 (West).
[29] Gregorio T. by & through Jose
T. v. Wilson, 59 F.3d 1002 (9th Cir. 1995).
[30] 42 U.S. 202 (1982).
[31] Friendly House v. Napolitano,
419 F.3d 930 (9th Cir. 2005).
[32] Greater Boston Legal Services
provides civil legal services to low-income people in Boston and surrounding
areas. See http://www.gbls.org.
[33] The Refugee Law Center is a
nonprofit organization that advocates for the human rights of refugees and
immigrants through legal representation, research, educational initiatives,
and policy development. See http://www.refugeelawcenter.org.
[34] Pub. L. No. 96-212, 94 Stat.
102 (1980).
[35] The National Immigration Forum
advocates for public policies that support the interests of immigrants and
refugees in the United States. See http://www.immigrationforum.org.
[36] The Leadership Conference on
Civil Rights is a coalition of national organizations that work to promote
and support civil rights legislation and policy. See http://www.civilrights.org.
[37] The Safe, Orderly, Legal Visas
and Enforcement Act of 2004, S. 2382, 108th Cong. (2004).
[38] Tyson Foods, Inc. processes
and markets chicken, beef, and pork products. See http://www.tysonfoodsinc.com.
[39] The Essential Worker Immigration
Coalition (EWIC) advocates for policies that support semi-skilled and unskilled
labor. See http://ewic.org.
[40] Under the Bracero Program,
Mexican farm workers could work in the United States on a temporary contract
basis, returning to Mexico when the contract expired. See, e.g., http://www.farmworkers.org/bracerop.html.
[41] Legal status was granted to
almost three million undocumented immigrants under the Immigration Reform and
Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100 Stat. 3359 (1986) (codified
as amended in scattered sections of 8 U.S.C.).
[42] The Center for Immigration
Studies conducts immigration-related research and policy analysis. See http://cis.org.
[43] Harvard University professor
and author. See, e.g., Samuel P. Huntington, Who Are We?: The Challenges
to America’s National Identity (2004).
[44] The matrícula consular,
or matrícula, is an identification card issued by the Mexican government
to Mexican citizens living abroad. See, e.g., http://house.gov/appropriations_democrats/press/pr_040723mexicogovid.htm.
[45] Development, Relief, and Education
for Alien Minors Act, S. 2075, 109th Cong. (2005).
[46] H.B. 1403, 77th Leg., Reg.
Sess. (Tex. 2001) (signed into law on June 16, 2001).
[47] B. Lindsay Lowell with Enrico
Marcelli, Transnational Twist: Pecuniary Remittances and Socioeconomic Integration
among Authorized and Unauthorized Mexican Immigrants in Los Angeles County,
39 Int’l Migration Rev. 69 (2005).
[48] International Remittance Consumer
Protection Act of 2004, H.R. 5315, 108th Cong. (2004).
[∗] J.D. Candidate, Harvard
Law School, Class of 2007.
[49] Immigration and Nationality
Act, 8 U.S.C.
§§ 1101–1537 (2006) [hereinafter INA].
[50] See, e.g., Press Release,
Senator Jeff Sessions, Sessions Calls For Expansion of Federal Immigration
Enforcement Training in Alabama (Feb. 21, 2005) available at http://sessions.senate.gov/pressapp/record.cfm?id=232438.
[51] Immigration and Customs Enforcement
(ICE) is the arm of the Department of Homeland Security that enforces immigration
laws inside the United States.
[52] H.R. 4437 § 220 would
“affirm” the “inherent authority” of state and local
agencies to “ . . . investigate, identify, apprehend, arrest, detain,
or transfer to Federal custody aliens in the United States . . . for the purposes
of assisting in the enforcement of the immigration laws of the United States
in the course of carrying out routine duties.” H.R. 4437, 109th Cong. §
220 (2005).
[53] Press Release, Senator Harry
Reid, Reid: Realistic Laws Make Good Immigration Laws (Oct. 5, 2005), available
at http://democrats.senate.gov/~dpc/press/05/2005A06426.html.
[54] Editorial, A Question of
Priorities; Houston’s police can’t enforce immigration laws without
being diverted from their primary mission of public safety and crime prevention,
Hous. Chron., July 31, 2005, at Outlook 2.
[55] See, e.g., Sheila Burke, Midstate
Authorities Balk at Possibly Enforcing Immigration Laws, Tennesean, Apr.
15, 2005, at 7B.
[56] INA § 274, 8 U.S.C.A.
1324c (2006).
[57] ICE has entered into such Memoranda
of Understanding with the law enforcement of several jurisdictions, including
the state of Alabama, Orange County, Cal., and the city of Costa Mesa, Cal. See,
e.g., City Puts Itself on Immigration Watch, USA Today, Jan. 26,
2006, at 6A.
[58] For the argument that the INA
does not provide broad inherent arrest authority to local agencies, see Migration
Policy Institute, Authority of State and Local Officers to Arrest Aliens Suspected
of Civil Infractions of Federal Immigration Law (2002), http://www.migrationpolicy.org/files/authority.pdf.
For the contrary argument that the INA does nothing to preempt state and local
agencies’ inherent authority to make arrests for civil violations of
the INA, see Kris Kobach, State and Local Authority to Enforce Immigration
Law: A Unified Approach for Stopping Terrorists (2004), http://www.cis.org/articles/2004/back604.html.
For more information on the 287(g) certification process, see U.S. Immigration
and Customs Enforcement, Section 287(G) Fact Sheet, http://www.ice.gov/graphics/news/factsheets/section287g.htm (last
visited Mar. 12, 2006).
[59] The Department of Justice (DOJ)
has shifted its position on this legal question over time. The DOJ’s
historical position was that state and local agencies did not have inherent
authority to enforce the INA’s civil provisions. See Memorandum
from the Department of Justice Office of Legal Counsel to the U.S. Attorney
for the S.D. of Cal., available at http://www.usdoj.gov/olc/immstopo1a.htm (last
visited Mar. 12, 2006). However, the DOJ withdrew this legal opinion in the
wake of the 1996 Amendments to the INA.
[60] Illegal Immigrant Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996)
(codified as amended in scattered sections of 8 U.S.C.).
[61] Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(codified as amended in scattered sections of 8, 18, 22, 28, 40 & 42 U.S.C.).
[62] 8 U.S.C.A. § 1252c (2006),
also known as the “Doolittle Amendment,” was enacted as AEDPA § 439.
It provides:
§ 1252c. Authorizing state and local law enforcement officials to arrest and detain certain illegal aliens
(a) In general. Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who—
(1) is an alien illegally present in the United States; and
(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction,
but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.
(b) Cooperation. The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) is made available to such officials.
[63] For instance, § 287(g)(1)
provides that a state or local officer “who is determined by the Attorney
General to be qualified to perform a function of an immigration officer . .
. may carry out such function” 8 U.S.C.A. § 1357 (2006). § 287(g)(2)
mandates that MOUs require state and local officers to have “knowledge
of . . . Federal law” and “training regarding the enforcement of
relevant Federal immigration laws . . . .” Id. § 287(g)(3)
provides that,“[i]n performing a function under this subsection, an officer
or employee of a State or political subdivision of a State shall be subject
to the direction and supervision of the Attorney General . . . .” Id. These
provisions seem incongruent with the Congressional understanding that state
and local agencies have inherent authority to arrest suspected civil violators
of the INA. It would make no sense to impose these limitations on state and
local agencies entering into MOUs with ICE while simultaneously understanding
that agencies that do not cooperate with the federal government have untrammeled
authority to make arrests without federal supervision or training. In context,
these provisions of 287(g) seem to be conditions on a grant of limited authority,
which would be inconsistent with the notion that state and local agencies already
have such authority to begin with.
[64] § 287(g)(10); 8 U.S.C.A. § 1357
(2006) provides:
Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State (A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
This provision, at first glance, would seem to support the view
that § 287(g) does not preclude state and local officers from making arrests
under the civil provisions of the INA. However, it might be argued that in
context, this provision merely affirms that officers may cooperate with federal
authorities, rather than affirming their authority to make unsupervised immigration
arrests.
[65] H.R. 4437, 109th Cong.
§ 220 (2005).
[66] H.R. 4437 contemplates a vastly
increased role for state and local officers in the enforcement of federal immigration
law. The bill would require the Secretary of Homeland Security to furnish State
and local law enforcement with immigration enforcement “pocket guides”
for “quick reference . . . in the course of duty.” H.R. 4437 §
221(a). It would require the Secretary to provide extensive training to state
and local officers. H.R. 4437 § 221(e). The bill is explicit in stating
that it would not require state and local officers to make immigration
arrests. H.R. 4437 § 220(b). This provision was apparently inserted to
avoid an Eleventh Amendment constitutional challenge. See Printz v.
U.S., 538 U.S. 1036 (1997). However, the bill does make $250 million in appropriations
to state and local law enforcement agencies conditional upon their adopting
an immigration enforcement policy. H.R. 4437 § 222(b)(c). Likewise, states
that prohibit law enforcement officers from enforcing immigration laws would
no longer receive federal funds under § 241(i) of the INA. H.R. 4437 § 225.
While they do not raise commandeering concerns, these two provisions could
be considered instances of coercive exercise of the conditional spending power.
Finally, § 607 would provide counties adjacent to the southern land border
with automatic reimbursement for the costs of arresting aliens suspected of
unlawful presence and transferring them to federal custody.
[67] In order to receive § 287(g)
authority, officers must complete ICE’s “specialized training course
(typically five weeks) for that group focusing on immigration law, civil rights,
intercultural relations, and the issues and illegalities surrounding racial
profiling.” For more information, see U.S. Immigration and Customs Enforcement, supra note 58.
[68] Of course, even if this inherent
authority were affirmed, state and local governments could still pass laws
prohibiting their officers from enforcing the civil provisions of the INA. See,
e.g., Steven Terrel, House Passes Bill to Limit Enforcement of Immigration
Laws, Santa Fe New Mexican, Mar. 19, 2005, at A7.
[69] See U.S. Immigration
and Customs Enforcement, supra note 58.
[70] H.R. 4437 § 221(a).
[71] Id. § 221(e).
[72] First
Five of Santa Cruz County is an executive commission established in 1998. First
Five oversees early childhood development programs and services in areas such
as education, health, and child care. See http://www.first5scc.org/?page=faq (last
visited Feb. 4, 2006).
[73] 863 F.2d 1407 (9th Cir. 1988).
[74] The Bracero Program was an
agreement between the United States and Mexico from 1942–64 that allowed
Mexican citizens to take temporary agricultural work in the United States,
primarily in California and Texas. See, e.g., In the Bracero Program:
Legal Temporary Farmworkers from Mexico, at http://sunsite.berkeley.edu/calheritage/latinos/braceros.html (last
modified May 17, 2004).
[75] The United States Small Business
Administration is a federal organization that primarily aids, counsels, and
assists small businesses in start-up and operations. See http://www.sba.gov/aboutsba/index.html.
[76] Nuestra Comunidad is a community
development corporation located in the Roxbury area of Boston. See Nuestra
Comunidad Community Development Corporation, http://www.nuestracdc.org.
[77] See, e.g., Robert Montemayor &
Henry Mendoza, Right Before Our Eyes: Latinos Past, Present & Future (2004).
[78] See, e.g., Statement
by David M. Walker, Comptroller General of the United States, Social Security
Reform: Demographic Trends Drive Social Security’s Long-Term Financing
Problem (July 29, 2003), in Almanac of Policy Issues, available
at http://www.policyalmanac.org/social_welfare/archive/social_security.shtml.
[79] See SBA Small Business
Statistics, at http://www.sba.gov/aboutsba/sbastats.html (last
visited Mar. 15, 2006).
[80] See http://www.sba.gov and http://www.sba.gov/espanol to learn about
the basics of running a business and how to prepare a request for financing.
[81] The Latino Financial Issues
Program promotes Latino financial literacy and researches issues pertaining
to Latino wealth. See http://www.utexas.edu/depts/cmas/projects/lfip.
[82] For similar statistics, see,
for example, 2004 U.S. Census Bureau Tables 1.1 and 1.2 on Age and Hispanic
Origin, available at http://www.census.gov/population/www/socdemo/hispanic/cps2004.html.
[83] Id.
[84] See Rakesh Kochhar,
Pew Hispanic Center, The Wealth of Hispanic Households: 1966 to 2002 (2004)
[hereinafter Wealth of Hispanic Households], available at http://pewhispanic.org/files/reports/34.pdf; see
also Brenda Muñiz, Addressing Barriers to Latino Wealth (June
2004), available at http://www.wid.org/publications/?page=equity&sub=200406&topic=fa (Citing
a disparity in net worth of 8:1 in 2000 and 12:1 exclusive of home equity).
[85] See U.S.
Census Bureau Table 12.1 Total Money Income in 2003 of Households by Type, available
at http://www.census.gov/population/www/socdemo/hispanic/cps2004.html (last
visited Feb. 4, 2006).
[86] See Wealth
of Hispanic Households, supra note 84.
[87] But see U.S. Census
Bureau Home Values: 2000, available at http://www.census.gov/prod/2003pubs/c2kbr-20.pdf.
(The Pew Report finds that in 2000 the median Hispanic/Latino home value was
$105,600 and the median white alone home value was $123,400. The Census, however,
uses median and not average home values. Extremely low home values for a large
enough number of Latinos homes could reduce the average value.)
[88] See http://www.nuestracdc.org.
[89] See http://www.laalianza.org. La Alianza Hispana
was founded in the 1970s and is also located in Roxbury. The Alliance runs
a variety of community-based programs such as tutoring, job training, public
health awareness, and family counseling.
[90] Founded in 2003, the National
Association of Latino Community Asset Builders [NALCAB] represents Latino Community
Development Corporations and other community-based organizations that focus
on asset building. NALCAB aims “to build financial and human assets as
well as real estate and technology resources in Latino families, communities,
and organizations.” NALCAB–National Association for Latino Community
Asset Builders, http://www.nalcab.org (last
visited Feb. 4, 2006).
[91] See, e.g., President
George W. Bush, Remarks by the President at Bush-Cheney 2004 Reception (Mar.
8, 2004), in 2004 WL 419028, at *5.
[92] A private nonprofit organization
based in San Antonio, Texas, the Rural Development and Finance Corporation “works
to help underserved communities build assets through home ownership, business
lending, and expanded financial proficiency.” Rural Development &
Finance Corporation, RDFC, http://www.rdfc.org (last
visited Feb. 4, 2006).
[93] Chicanos Por La Causa, Inc.
[CPLC] is a statewide community development corporation committed to building
stronger, healthier communities through advocacy, coalition building and the
provision of direct services. CPLC promotes positive change and self-sufficiency
to enhance the quality of life for those they serve. See http://www.cplc.org.
[94] See generally Rosalba
Gama, Delma Medrano, & Luis Medrano, Tandas and Cundinas: Mexican-American
and Latino-American Rotating Credit Associations in Southern California, available
at http://www.anthro.uci.edu/html/Programs/Anthrop_Money/Tandas.htm (last
visited Feb. 4, 2006).
[∗] J.D. Candidate, Harvard
Law School, Class of 2008.
[95] U.S. Census Bureau, Income
Stable, Poverty Rate Increases, Percentage of Americans Without Health Insurance
Unchanged (Aug. 30, 2005), http://www.census.gov/PressRelease/www/releases/archives/income_wealth/005647.html.
[96] U.S. Census Bureau, U.S.
Interim Projections by Age, Sex, Race, and Hispanic Origin (Mar. 18, 2004), http://www.census.gov/ipc/www/usinterimproj.
[97] United States Small Business
Administration, Small Business Statistics, http://www.sba.gov/aboutsba/sbastats.html (last
visited Mar. 2, 2005).
[98] Id.
[99] Maria Minnitti & William
D. Bygrave, National Entrpreneurship Assessment: United States of America (Global
Entrepreneurship Monitor Executive Report, 2004), available at http://www.gemconsortium.org/download/1142438244671/GEMUSReport8.5x11.pdf.
[100] Affluence in Two Cultures,
Hisp. Bus., Dec. 2003, available at http://www.hispanicbusiness.com/magazine/?issue=2003m12 (follow “Affluence
in Two Cultures” hyper-link).
[101] Id.
[102] Keith Darcé, Entrepreneur
Struggles in High-Tech Market, Times-Picayune (L.A.), Jan. 2, 2005, at
Money 1.
[103] Nuestra Comunidad has provided
more than $700,000 in home improvement and acquisition loans and $3.9 million
in small business loans to Boston’s underserved populations. Among its
initiatives, Nuestra Comunidad hosts an Economic Development Program, which
provides small business development services, and a Homeownership Services
Program, which offers lending, counseling, and training courses for new home
owners. See Nuestra Comunidad Community Development Corporation, http://www.nuestracdc.org/Index.html (last
visited Feb. 4, 2006).
[104] See supra note 79.
[105] Oldest Baby Boomers
Turn 60!, Facts for Features, United States Census Bureau, Jan. 3, 2006, http://www.census.gov/Press-Release/www/releases/archives/facts_for_features_special_editions/006105.html.
[106] See supra p. 120.
For more information, see generally Robert Montemayor & Henry Mendoza,
Right Before Our Eyes: Latino Past, Present & Future (2004).
[107] Tomás Rivera (1935–1984)
was a Mexican American educator, author, and scholar. He advanced a wide-ranging
vision for Latinos, including envisioning a future where Latinos would play
an integral role in government. See http://www.trpi.org/updates/aboutus.html.
[108] Professor Gary Orfield
also participated on the panel. Professor Orfield is a professor at Harvard
Graduate School of Education and director of the Civil Rights Project at Harvard.
His research focuses on civil rights, education policy, urban policy, and minority
opportunities.
[109] The SAT Reasoning Test
is a standardized test designed to measure critical reading, writing, and math
skills. The SAT is usually administered to high school students and is used
for college admissions. See http://www.collegeboard.com/student/testing/sat/about/sat/FAQ.html.
[110] No Child Left Behind Act
of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (codified as amended in scattered
sections of 20 U.S.C.).
[111] The National Council of
La Raza is a national civil rights and advocacy organization that works to
improve opportunities for Hispanic Americans. See http://www.nclr.org/.
[112] Development, Relief, and
Education for Alien Minors Act, S. 2075, 109th Cong. (2005).
[113] Press Release, U.S. Dep’t
of Educ., National Progress Being Made in Serving Students with Limited English
Proficiency (Mar. 16, 2005), available at http://www.ed.gov.news/pressreleases/2005/03/03162005.html.
[114] 457 U.S. 202 (1982).
[115] Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009
(1996) (codified as amended in scattered sections of 8 U.S.C.).
[116] The DREAM Act was reintroduced
in the United States Senate in November 2005. The sponsor of the Act is Senator
Richard Durbin (D-Ill.), and Senators Chuck Hagel (R-Neb.) and Richard Lugar
(R-Ind.) are the lead Republican cosponsors.
[117] 105 Ill. Comp. Stat. 5/1–5/36.
[118] 457 U.S. 202.
[119] 2003 Ill. Laws 7.
[120] 2003 Ill. Laws 858.
[121] The ACT is a college entrance
exam that is designed to assess high school students’ general educational
development and their ability to complete work at a college level. See http://www.act.org/app/.
[122] S. 750, 94th Gen. Assem.,
Reg. Sess. (Ill. 2005).
[123] Keyes v. Sch. Dist. No.
1, Denver, Colo., 413 U.S. 189 (1973).
[124] 414 U.S. 563 (1974).
[125] The U.S. Department of
Education Office for Civil Rights has the stated mission to “serve student
populations facing discrimination and the advocates and institutions promoting
systemic solutions to civil rights problems” and acknowledges that “[a]n
important responsibility is resolving complaints of discrimination.” U.S.
Department of Education Office for Civil Rights, Overview of the Agency, http://www.ed.gov/about/offices/list/ocr/index.html (last
modified Mar. 8, 2005).
[126] Improving Schooling for
Language-Minority Children: A Research Agenda (Diane August & Kenji Hakuta
eds., 1997).
[127] Dropouts in America: Confronting
the Graduation Rate Crisis (Gary Orfield ed., 2004).
[128] For discussion of such
a program, see for example, Instituto de los Mexicanos en el Exterior, Program
Donations of Books in Spanish, http://portal.sre.gob.mx/ime/index.php?option=displaypage&Itemid=153&op=page&SubMenu= (last
visited Feb. 5, 2006).
[129] Daniel v. California, No.
B C214156 (L.A. Super. Ct. filed July 27, 1999).
[130] To view Connecticut’s
Complaint, see Complaint for Declaratory and Injunctive Relief, http://www.npr.org/documents/2005/aug/ct_nclb_suit.pdf (last
visited Feb. 5, 2006).
[131] The Civil Rights Project,
Harvard University, http://www.civilrightsproject.harvard.edu.
[∗] J.D. Candidate, Harvard
Law School, Class of 2007.
[132] The Development, Relief, &
Education Act of 2001, S. 1291, 107th Cong. (2001).
[133] Jeffery S. Passel, The
Urban Inst., Further Demographic Information Relating to the DREAM Act, available
at http://www.nilc.org/immlawpolicy/DREAM/DREAM_Demographics.pdf (Oct.
21, 2003).
[134] Student Adjustment Act
of 2003, H.R. 1684, 108th Cong. (2003).
[135] The Development, Relief, &
Education for Alien Minors Act of 2005, S. 2075, 109th Cong. § 2 (2005).
The IIRIRA § 505 reads, “[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 benefits
unless a citizen or national of the United States is eligible for such benefits
(in no less amount, duration, and scope) without regard to whether the citizen
or national is such a resident.” The Illegal Immigrant Reform &
Responsibility Act of 1996, Pub. L. No. 104-208, § 505, 110 Stat. 3009–672
(1996) (codi-fied at 8 U.S.C. 1623(a)).
[136] S. 2075 §§ 4–5.
[137] Carl Kruger, Education
Commission of the States, In State Tuition for Undocumented Immigrants, http://www.ecs.org/clearinghouse/61/00/6100.htm (Apr.
2005).
[138] National Conference of
State Legislatures, In-State Tuition and Unauthorized Immigrant Students (2005), http://www.ncsl.org/programs/immig/tuitionandimmigrants05Nov22.htm.
[139] See id.
[140] Governor’s Veto Message
from Robert L. Enrich, Governor of Maryland, to Michael E. Busch, Speaker of
the House, State House of Maryland (May 21, 2003), available at http://mlis.state.md.us/2003rs/veto_letters/hb0253.htm.
[141] Rene Galindo et al., Dual
Sources of Influence on Latino Political Identity: Mexico’s Dual Nationality
Policy and the DREAM Act, 11 Tex. Hisp. J. L. & Pol’y 75, 92
(2005).
[142] Yvonne Abraham, Immigrant
Tuition Bill Defeated, Boston Globe, Jan. 12, 2006, at A1.
[143] Day v. Sebelius, 376 F.
Supp.2d 1022 (D. Kan. 2005).
[144] Rachel L. Swarns, Suit
Challenges California’s Tuition Rule for Illegal Immigrants, N.Y.
Times, Dec. 15, 2005, at A28.
[145] Martinez v. Regents of
the Univ. of Cal., No. CV-05-2064 (Yolo County Super. Ct. filed Dec. 14, 2005).
[146] S. Rep. No. 108-224, at
12 (2004).
[147] Steve LeBlanc, House
Defeats In-state Tuition Bill for Undocumented Immigrants, Associated Press,
Jan. 11, 2006, available at http://www.miracoalition.org/index.pl/press/mira-in-the-news/house-defeats-in-state-tuition-bill-for-undocumented-immigrants.
[148] Id.
[149] Galindo et al., supra note 141, at 92 (noting that fifty-four percent
of undocumented high school graduates live in Texas and California, the first
two states to pass state DREAM acts).
Copyright © 2006 by the President and Fellows of Harvard College
Harvard Latino Law Review - Volume 9, Spring 2006
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Last modified: October 01, 2009.