Thursday, October 10, 2013
From a 'Legal Organization of Militants' into a 'Law Firm for the Latino Community': MALDEF and the Purposive Cases of Keyes, Rodriguez, and Plyler by Michael A. Olivas, University of Houston Law Center, 90 Denver University Law Review 1151 (2013) U of Houston Law Center No. 2013-A-12
Abstract: Keyes was the first school desegregation case decided by the Supreme Court that did not originate in a Southern city. Geography was its quintessence — not merely the line drawing and school assignment form — but its political geography and demography variant. In Denver, as was the case in most Southwestern cities, the number of Mexican Americans was as large or larger than the number of Black schoolchildren. In several important cases taken up at approximately the same time, Anglo community lawyers and NAACP Legal Defense and Educational Fund lawyers took up important cases in desegregation (Keyes v. School District No. 1), bilingual education (Lau v. Nichols), and Texas school finance (San Antonio Independent School District v. Rodriguez) without significant formal involvement by lawyers representing Latino interests. In part, this Article argues, it was a traditional blind spot in the Black-White legal theory that doomed the cases; even though the Chinese American plaintiffs prevailed in Lau, it was undertaken without significant Latino legal involvement. In addition, the Mexican American Legal Defense and Educational Fund was not yet the major purposive legal organization it became in the next decade, when it won significant voting rights and immigrant education Supreme Court cases. However, it had already begun to undertake Tenth Circuit education litigation and was building its organizational capacity, and the failure of White lawyers in Denver and Texas to incorporate a Mexican American theory of the case contributed to an unsuccessful litigation strategy.
The Growing Role of Immigration Law in Universal Higher Education: Case Studies of the United States and the EU Michael A. Olivas, University of Houston Law Center, Oxford Centre for Higher Education Policy Studies [OxCHEPS], Occasional Paper No. 48
Abstract: The increasingly-prominent role of immigration law in the world of higher education is evident to observers in both camps, that is, to those who specialize in the comprehensive law of higher education, across countries, and to those whose expertise is immigration and naturalization law. Of course, there has always been a substantial and broad band of intersection, such as the required visa regime for international admissions, across all nations and institutions (in the U.S., the usual F-1 process that admits and enrolls more than a million students and scholars each year — one of several categories possible for international study), and the complex process for working in a foreign country as an academic and evaluating educational credentials for employment authorization (such as the landed immigrant procedures in Canada or NAFTA-related work certification degree requirements). As common as these transactions have been over the years, the shrinking world with its increased geopolitical and diplomatic roles played by competitive higher education policies has moved the implementation of immigration to center stage as never before. Not only is there a growing propensity for these regimes to be considered in court cases and for a dizzying array of legislative/regulatory/administrative rules to be drafted in their service, but there is an astonishing move towards large scale national, international, transnational, consortial, and other interlocking legal mechanisms for advancing higher education interests across countries. Perforce, immigration law has become the technical and policy regime for effectuating and implementing these interests. In this preliminary investigation, I use case studies and detailed literature reviews from the United States and from the European Union (EU), as higher education institutions in these two systems represent the major receiver colleges in the world system, and among the major sender nations as well. Moreover, while there are many differences in the details, the large scale immigration mechanisms are similar in their organizational features. (Two unexpected findings: cases on undocumented immigrants in both venues, and widespread use of durational residency requirements.) The review of events traces back just before the most important existential event of the twenty first century, the terrorist attacks upon the U.S. in 2001, and then considers the reflexive and resultant immigration changes initiated as a direct result of these international terrorist threats. In addition, in the US, there has been an increased anti-Latino nativism and restrictionist backlash, particularly aimed at the rising number of undocumented college students, those not in authorized status; while these do not, in most instances, invoke immigration controls at the front end, the increased visibility and the sympathetic back-stories of these sojourner children have led several of the individual states to enact more accommodationist college policies. In this context, I review the political economy of the DREAM Act — both at the federal level and at the state level, and the 2011-2012 developments in the use of prosecutorial discretion to treat undocumented college students, that is, students in unlawful status presence in the U.S.