PHOENIX — Some border county sheriffs want Arizona schools to start asking students whether they're in this country legally.
Pima County Sheriff Clarence Dupnik originated the idea and said millions of dollars in Arizona taxes go to teach English to children who have no legal right to be here. He also said there's a link involving illegal immigration, social problems and gangs.
Only thing is, a 1982 U.S. Supreme Court decision appears to make it illegal for school officials to ask. In a 5-4 decision, the justices overturned a Texas law that authorized school districts to refuse to enroll anyone who couldn't prove legal residence.
But Dupnik said it may be time for Arizona to have a test case to put the issue back before the high court — to see if the current justices agree.
Dupnik has the backing of Yuma County Sheriff Ralph Ogden and Joe Arpaio, his Maricopa County counterpart. And Gov. Jan Brewer said she sees no reason why youngsters shouldn't be asked to prove they are U.S. citizens or legal residents.
"When I grew up, when I went to school, when I moved from Nevada to California, I had to bring my birth certificate to prove I was a citizen," she said.
But Attorney General Terry Goddard said he doesn't think schools have the expertise to determine legal status. And state Superintendent of Public Instruction Tom Horne said he believes the federal government should just do a better job of protecting the border.
"But as long as kids are here, they should be in school," he said. "You don't want them on the street corner."
Dupnik, however, has an answer for that: Have schools report their findings to Immigration and Customs Enforcement.
"They would identify the people that are here illegally by the thousands and send them back, kids and parents," he said.
The issue has financial implications: The Pew Hispanic Center estimates that 60,000 to 65,000 of the 1.2 million youngsters in Arizona schools are not in this country legally.
The Department of Education figures basic state aid for students is about $6,000 a year, not counting what the state pays for school construction. That puts the price tag near $390 million — minus, of course, any taxes from illegal residents that go toward education funding.
But that doesn't count the extra $360 per student Arizona now gives to schools to help English-language learners. Assuming two-thirds of these students fit that category, that adds $15 million to the tab.
In 1982, however, the Supreme Court voided a 1975 Texas law that denied state aid to districts for children not "legally admitted" into the United States. That law also allowed districts to deny admission to those students.
Attorneys for Texas argued that the 14th Amendment to the U.S. Constitution, which entitles every person to equal protection of law, doesn't apply to those not in the country legally.
"We reject this argument," Justice William Brennan wrote for the majority. "Whatever his status under the immigration laws, an alien is surely a 'person' in any ordinary sense of the term." And Brennan said education is the only way people can advance themselves.
Tucson-area education leaders were hardly supportive of the sheriffs' idea.
"Our function is not immigration, but to provide a quality education to kids who live in our district or who come in under open enrollment," said Nicholas Clement, superintendent of the Flowing Wells Unified School District.
He said it could invite new problems for schools, envisioning the need to hire additional staffers, order additional training and make difficult decisions on what kinds of documentation would be acceptable.
Eva Dong, a Sunnyside Unified School District board member, agreed. "The federal law given to us by the U.S. Supreme Court states that we are not, as a school entity, to be out there asking the students if they are here legally or illegally," she said.
"Let's face it: The little ones, how are they going to answer that? Even the older students may not know the answer," she said. "The sheriffs want us to go up against the law so they can get their test case. I am surprised they are asking us to go up against the law."
Not all Arizona border sheriffs support the idea.
Santa Cruz County Sheriff Tony Estrada said schools shouldn't be in the business of asking students their immigration status. And he said he sees that as a first step toward having other state and local public employees also doing the same thing, including his own officers.
"We can't afford it," he said.
The Pew report estimates there are another 100,000 to 110,000 youngsters in Arizona schools who are the children of illegal immigrants but were born in this country. That makes them citizens who would be unaffected by any reversal of the 1982 Supreme Court ruling.
Even if Arizona is successful in persuading the high court to overturn its 1982 decision, that may not end the debate.
Four years earlier, state Attorney General Jack LaSota issued a formal legal opinion saying the only inquiry school officials can make of parents who want to enroll their children is whether they are Arizona residents.
On StarNet: Should sheriff's deputies have the right to ask students whether they're in the country legally? Vote in a poll in the online version of this story at azstarnet . com/border