- The U.S. Supreme Court on Thursday announced in a 5-4 decision that the Trump administration cannot end the Deferred Action for Childhood Arrivals program, an Obama-era initiative that allows individuals who came to the U.S. as children to receive two-year temporary protection from deportation, subject to renewal, and to become eligible for a work permit.
- In September 2017, the Justice Department announced President Donald Trump’s plan to end DACA in a White House memo stating that DACA recipients should “use the time remaining on their work authorizations to prepare for and arrange their departure” from the U.S.
- The majority opinion — written by Chief Justice John Roberts — held that the Trump administration’s rescission of the program was “arbitrary and capricious” under the Administrative Procedure Act and failed to provide adequate reasoning to end the program. Roberts also wrote that Trump’s decision did not violate the Fifth Amendment’s equal protection clause, which would have more fully protected the program from future termination attempts.
The question in the case was not whether DACA can be eliminated, but whether the Trump administration acted properly in its attempt to do so.
The majority opinion, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, decided the administration did not. The remaining justices, including Sonia Sotomayor, filed opinions partially agreeing and partially disagreeing with the final decision to protect the program.
The majority decided the effort to terminate DACA was “arbitrary and capricious” on the grounds that the U.S. Department of Homeland Security didn’t consider DACA’s ability to defer removal or address whether there was “legitimate reliance” on the DACA memorandum. Instead, then-Acting Secretary Elaine Duke only discussed the legality of the benefits associated with DACA.
“Although Duke was bound by the Attorney General’s determination that DACA is illegal,” the opinion states, “deciding how best to address that determination involved important policy choices reserved for DHS. Acting Secretary Duke plainly exercised such discretionary authority in winding down the program, but she did not appreciate the full scope of her discretion.”
The decision has a variety of implications for K-12 and higher ed.
The decision comes as schools nationwide prepare to reopen for summer and fall instruction, with the possibility of closing because of coronavirus outbreaks. With a staff, nurse and bus driver shortage, along with predictions some staff will choose to stay home or retire early, districts are working through various health and safety protections, along with logistics for different hybrid models of instruction.
A decision to repeal the program would have impacted thousands of educators, and many more students — some of whom are working on the frontlines as schools reopen.
The Migration Policy Institute suggests that, as of 2016, approximately 228,000 children age 15 and younger were unauthorized immigrants potentially eligible for the DACA program provided they stayed in school. Every year, about 100,000 undocumented immigrants graduate from high school, and in 2014, 31% of the immediately eligible DACA population — or 365,000 students — was enrolled in secondary school.
Education is one of the most common professions in which DACA recipients work. As of two years ago, approximately 9,000 DACA recipients were employed as teachers or in similar education careers.
In a statement, National Education Association President Lily Eskelsen García called the decision “a much-needed and timely victory” for “nearly 15,000 educators who will continue to sustain student learning.”
“We ask Congress to work to achieve an acceptable solution and we urge the Trump administration to stop creating unnecessary angst and uncertainty among our immigrant families so that they can continue to focus on fighting this global pandemic, and, most importantly, continue to educate our students,” she said.
For higher education, the decision comes as DACA and other unauthorized students are the subject of a heated debate between the U.S. Department of Education and college groups over which students are eligible for emergency grants through the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
Unauthorized students were already excluded from other elements of the federal coronavirus relief programs, and the uncertainty over the status of DACA has compounded the precariousness of their situation.
More than 450,000 unauthorized students are enrolled in U.S. colleges, about 2% of all students, and roughly half are eligible for or are participating in DACA, a recent report found. Losing those protections could mean those students are unable to continue their education.
The department has maintained — most recently through an emergency regulation — that noncitizen students, including international students and DACA recipients, should not receive the CARES funds. But colleges and other advocacy groups have pushed back. And in recent days, federal judges blocked the rule for California’s community colleges and in Washington state.
Colleges have responded by using their own funds to support unauthorized students, wary of the uncertainty about limits the department is putting on CARES aid.
Advocates of upholding DACA have pointed to the contributions these students have made in higher education.
Last fall, DACA supporters argued eliminating the program would weaken talent and diversity on campuses, and “irreparably damage the reputation of America’s higher education system,” according to a brief filed by 44 higher ed groups. More recently, they have called out DACA recipients’ contributions during the pandemic. “Healthcare providers on the frontlines of our nation’s fight against COVID-19 rely significantly upon DACA recipients to perform essential work,” lawyers from the National Immigration Law Center and other groups wrote.
But the court’s ruling leaves a pass for the Trump administration to attempt to end DACA once more. The Trump administration did not pay sufficient mind to procedural requirements, the court wrote, such as how to address the hardship DACA recipients would endure if the program was ended.
“Even with today’s opinion, now the administration has the roadmap for exactly what it is they have to do” to end the program, Michael Olivas, a higher education law expert and former professor at the University of Houston, said in a video conference with reporters Thursday.
Undertaking the full procedural process required by the court could take at least six months, Geoffrey Hoffman, director of the immigration clinic at the University of Houston Law Center, said on the call.
In a statement emailed to Education Dive, Ted Mitchell, president of the American Council on Education, said the organization was “extremely gratified” that the court kept DACA in place. However, he implored Congress to enact permanent, legal protections for DACA recipients.
“For far too long, lawmakers used the pending Supreme Court decision as an excuse for inaction,” he wrote, adding the uncertainty has made it difficult for recipients to make long-term decisions about their lives.