Since the election of a candidate who ran on a platform of racism and xenophobia, immigrant communities across the country have experienced dramatic increases in hate speech and hate crimes. This hit home for us in New York and Montgomery County, Maryland, where elementary schoolchildren have experienced the worst of these effects. Many communities have responded by taking every measure possible to protect the most vulnerable, including undocumented community members, whose safety and security are even more threatened due to President-Elect Trump’s declarations about deporting up to three million people. Protests promising to resist mass deportations, denounce all forms of discrimination, and continue to welcome immigrants among us have supported a full-throated call for local jurisdictions to provide sanctuary. Many local jurisdictions, churches and schools are reaffirming and expanding their existing sanctuary policies, while others have responded by developing new protective policies. In our new report out today, “Sanctuary, Safety and Community – Tools for Welcoming and Protecting Immigrants through Local Democracy,” we find that constitutional protections against discrimination support these policies.
Our research reveals the ways in which the U.S. Constitution and civil rights laws support a wide range of local, pro-immigrant rights policies, including policies that protect undocumented community members from draconian federal immigration enforcement. Due to federal preemption, federal immigration enforcement cannot be entirely stopped, but well-crafted policies such as limiting the collection of immigration status information by state and local agencies, refusing to honor requests for immigration detention without probable cause, providing sanctuaries from racial profiling and hate crimes, and providing safe, nondiscriminatory educational environments, are constitutional and within the power of state and local governments.
Our research shows that state and local policies shielding immigration status information are generally permitted. Local law enforcement’s refusal to honor federal immigration detainer requests is also permitted and may even be required to avoid liability for constitutional violations. Agreements with the federal government to enforce immigration law may lead to liability for unconstitutional local policing, so policies against participating in immigration enforcement to avoid racial profiling are justifiable. Any threats to retract federal funding which are not tied to agreed-to federal immigration enforcement obligations are over-reaching, and should be resisted.
This moment also requires local policies protecting against discrimination, including prohibitions against discrimination based on race, national origin, language and immigration status by local police, employment, housing and other public authorities; public denunciation and warnings that hate crimes will be prosecuted; and strong policies that prohibit hate speech, especially in schools and other public institutions. Public declarations that the jurisdiction is a sanctuary jurisdiction may also be helpful.
State and local criminal justice reforms may also serve to limit abuses of federal power and help to guard against potential mass deportations. These include prohibiting racial profiling, and working to end mass incarceration, decrease the influence of the private prison industry lobby, de-criminalize nonviolent offenses, reduce racial disparities in sentencing, increase access to public defenders, and other measures.
Perhaps most importantly, the heightened constitutional protections for schools show that collection of immigration status information and immigration enforcement in schools would violate the Equal Protection clause of the U.S. Constitution. State and local education policies should protect families against any measures that would create fears of exposing a child or a parent’s immigration status. No matter who is president, we have every right to expect that all children will be safe at school, and we will ensure that local government protects them, while resisting any form of tyranny or discriminatory policies promulgated by the incoming federal administration.