Abstract

Excerpted From: Nina Rabin, Second-wave Dreamers, 42 Yale Law and Policy Review 107 (Fall, 2023) (253 Footnotes) (Full Document)

Over the past twenty years, two waves of child migrants have been at the heart of U.S. immigration law, policy, and advocacy. They are epitomized by two images. First, the undocumented high school graduate, in cap and gown with fist in the air, demanding justice for a generation of children who arrived in this country as small children. Second, the separated child migrant, crying as she is torn from her parent, or wrapped in foil blankets in a tent camp for detained unaccompanied minors.

At varying times, these images and the populations they evoke have captivated the nation's attention, shaped fierce debates, and led to policy agendas and certain reforms. Yet year in and year out, whether in the headlines or more often not, undocumented immigrant youth sit in school classrooms and join the workforce. Their experiences and future trajectories are often shaped by these oversimplified profiles rather than the reality of their complex lives.

Thus, the first wave of undocumented children, for better or for worse, came to be understood as the DREAMers. This paper uses the term “first-wave DREAMers” to refer to immigrants who entered the United States as children between 1986 and 2007. For reasons I discuss, this was a unique period in U.S. immigration law and policy that created a sizable population of undocumented children often referred to as DREAMers. I use the term “DREAMers” well aware that it is controversial and politically fraught, given all that has transpired since it was first adopted by advocates for undocumented immigrant youth in the early 2000s. As the discussion of this population will make clear, “first-wave DREAMers” is intended to encapsulate the aspirations and certain shared characteristics of this group, as well as the troubling ways in which it essentialized and separated young people from the broader community of undocumented immigrants. As a category, DREAMers have been the subject of repeated attempts at legislative reform and the implementation of administrative reform in the form of the Deferred Action for Childhood Arrivals Program (DACA).

This paper uses a new term for the second group of child migrants, those who have entered the country since 2014: “second-wave DREAMers.” Most of the focus of policy advocacy when it comes to this second group of child migrants has focused on their treatment at the border. As a category, they are identified by very different characteristics: their desperate flight, their demands on the immigration system, and the pressure they place on U.S. border policies. While public attention and policy advocacy have focused largely on their immediate processing at the border, their numbers grow in schools and communities, with very little focus on the longer-term future of this population. And yet with current backlogs and trends, a significant portion of these young people will come of age unauthorized to live in this country, and eventually raise urgent questions about their social incorporation.

This Article compares and contrasts these two waves of child migrants-- first- and second-wave DREAMers--in furtherance of two goals. The first is descriptive. I offer a more robust depiction of newcomer children today than what is often portrayed in media accounts or policy analyses. Comparing the two populations conceptualizes recently arrived immigrants as more than a transitory population. All too often, when it comes to today's child migrants, much of the attention of legal scholars, policymakers, and journalists tends to focus on their treatment at the border, their experience in the immigration detention system, and their need for legal representation. There is good reason to focus on these issues, given the shocking mishandling of children at the border in recent years, and the stark injustice of detaining and prosecuting children without a guaranteed right to counsel.

But the fact is that many young people leave immigration detention after a matter of weeks, and then encounter years of different but equally profound challenges as they struggle to integrate into communities and schools. While part of this struggle is due to their lack of representation in immigration court, this Article aims to widen the lens, to consider their experiences and trajectories more broadly. Comparing their experience with first-wave DREAMers is illuminating in this regard. For years before DREAMers became a known social category and before DACA was created, many undocumented children lived in a social context in which their individual struggles were borne out silently, in schools and communities where any mention of immigration status was taboo. Through the DREAM movement, undocumented students emerged from this social isolation through political activism and solidarity that enabled them to demand greater social inclusion. DACA is one imperfect but highly significant outcome of their mobilization.

In some ways, today's newcomer youth face a lonely struggle that is similar to that of the DREAMers before DACA. They, too, must forge their way in a new country in schools that are ill-equipped to meet their needs, and in a society that lacks a policy framework to address their vulnerability. Yet this Article's descriptive account illustrates crucial differences between the two groups and their likely future trajectories. Central to this contrast is the case Plyler v. Doe, arguably the most significant legal framework shaping the experiences of immigrant children in U.S. society.

Plyler, issued by the Supreme Court in 1982, held that undocumented immigrant students have a right to public education without any distinctions drawn based on their immigration status. This Article contrasts the experiences of these two waves of child migrants through the lens of Plyler. Three critical aspects of Plyler's implementation by public schools are particularly illuminating. First, Plyler's holding that immigration status has no place in the school context created not just a legal rule, but a school culture that views assimilation as the primary goal of schools vis-à-vis immigrant students. Second, this commitment to assimilation results in a focus on formally equal treatment in the classroom. Teachers and school administrators are acculturated to focus their efforts on ensuring that no distinctions are drawn between immigrant students and their nonimmigrant peers. This is most often manifest in an aversion to any overt references to students' migration histories or current legal status. Third and finally, Plyler was premised in part on the innocence of undocumented children. While the Court's reasoning was also grounded in justifications that would apply broadly to immigrants of all ages, the innocence rationale has been particularly emphasized in the years since Plyler. Innocence continues to be a deep social norm shaping schools' approach to immigrant children. This, too, results in a school culture that is reluctant to engage with the distinctive challenges immigrant students face as a result of their migration journeys, as this is associated with “culpable” behavior.

For first-wave DREAMers, assimilation, education, and innocence came to be defining characteristics of the DREAMer social movement. This paper's descriptive account illustrates how the implementation of Plyler for this generation of undocumented youth was both a blessing and a curse. On the one hand, it created schools as a place of refuge from matters of immigration status, which proved to be a crucial formative experience for undocumented students. At the same time, the insistence on assimilation and innocence is at the heart of the intractable state of limbo in which these now young adults find themselves.

For today's child migrants, second-wave DREAMers, this paper's descriptive account aims to show how the key tenets of Plyler's holding apply very differently, and with far more significant downsides. In light of their migration histories and the current social and legal context, today's newcomer students are not well-served by a school culture that views immigrant children through a lens of assimilation, formally equal education, and innocence. Many schools see it as part of their mission to avoid drawing attention to the migration journeys and legal challenges their students face. Yet today's recently arrived children are not like the undocumented immigrant children for whom this approach was tailored. Most are already in removal proceedings and face urgent legal, economic, and social challenges. Many would benefit from adult intervention rather than silence when it comes to their immigration status. As a result of these realities, the school culture created by Plyler no longer provides a place of refuge and thriving for today's child migrants.

The final section of the Article takes up my second goal: to propose an alternative, modernized reading of Plyler for schools, policymakers, and advocates for immigrant children. Over the years since the Supreme Court issued its decision, there has been extensive scholarly discussion of Plyler's jurisprudential basis. This commentary is more important now than ever, when the decision's future before the current Supreme Court is at high risk. This Article, however, is not a proposal for a new doctrinal justification for Plyler's holding. Rather, it offers new guideposts for implementation of Plyler's holding by public schools. Whatever happens to Plyler in the courts, school districts throughout the country will continue to grapple with how best to serve recently arrived child migrants in their classrooms. In fact, many schools around the country have already recognized the need for new approaches to effectively educate immigrant students in light of the unique characteristics of today's child migrants. Yet these efforts are currently the exception to the rule. A new, updated understanding of Plyler is needed for more robust and systematic implementation of these measures.

This Article conceptualizes the need for change in the form of shifts along all three of the prior guideposts that shaped schools' implementation of Plyler: from assimilation to inclusion, from formally equal to equitable education, and from innocence to collective responsibility. The shifts I propose are summarized in the chart below. They are elaborated at greater length in the remainder of the paper.

GOAL

MEANS

JUSTIFICATION

First-wave DREAMers

Assimilation

Equal Education

Innocence

Second-wave DREAMers

Inclusion

Equitable Education

Collective Responsibility

This Article is rooted in my experience representing young immigrant clients in a legal clinic based in a large public school in Los Angeles. As described further in the final section of the Article, the clinic itself is a model of what a shift in Plyler's implementation can look like. Rather than a culture of silence when it comes to students' immigration status, our clinic is embedded in the school community as a safe place for immigrant students and their families to address their legal needs. In close partnership with teachers, administrators, and school social workers, we have been providing legal services to immigrant students and their families since 2019. In those years, we have had the opportunity to serve both waves of child migrants I describe in this Article. The bulk of our docket is made up of recently arrived young people, whom I refer to in this Article as second-wave DREAMers. In addition, due to tumultuous changes and uncertainty with regard to the DACA program in recent years, we have also had the tail end of the first-wave DREAMers come through our clinic's doors.

These clients form the backbone of this Article, which proceeds as follows. Part II opens with three brief profiles of first-wave DREAMers the clinic has served. It then describes the migration dynamics that created this population, and the social context in which they grew up. Part III opens with three profiles of second-wave DREAMers our clinic represents, followed by a description of the migration patterns and social context that account for the sharp contrast between these clients and those in the preceding section. This is the paper's descriptive account.

Part IV proposes a new reading of Plyler for schools, policymakers, and advocates for immigrant children. It argues for a shift to inclusion, equity, and collective responsibility as the goals, means, and justification animating public schools' approach to immigrant students. These alternatives reenvision Plyler's legal command in modern terms that learn from our past and acknowledge our current reality. It grounds these conceptual shifts in specific measures some schools and school districts around the country have already implemented to better serve today's newcomers. With sufficient resources and political will, these could be more widely adopted. The Article closes with a call for policies that allow schools to lead the way, as they did for first-wave DREAMers, in serving as a catalyst for the greater recognition and social integration of today's immigrant children.

[. . .]

One final unmistakable lesson from the history of first-wave DREAMers is that the ability of schools to enable social integration can only go so far. Section I demonstrated how, thanks in large part to Plyler, schools functioned as a site of and catalyst for integration of first-wave DREAMers into society. For DREAMers, the integration has been real, but also incomplete. DACA--deferral of action on deportation--is the literal instantiation of the DREAMers' ongoing struggle for complete social membership. Without a pathway to citizenship, this generation of undocumented immigrants continues to live in limbo. The role of schools as engines of social equality and bulwarks against caste has been greatly limited by the many other social spheres in which DREAMers have been unable to live unfettered by their lack of permanent legal status. Their ongoing struggle for full social membership has brought into stark relief the limitations of the innocence narrative.

The prospects of social integration for second-wave DREAMers is even more daunting, particularly because the vast majority of immigrants' rights advocacy addresses the needs of today's young people on an individualized basis, fighting for due process and fair treatment in the court and by immigration enforcement. By not drawing attention to the growing ranks of children without immigration status on a community and population level, these children's numbers grow inexorably larger with little attention to long-term prospects for social integration.

If schools do not shy away from implementing and advocating for policies and practices explicitly designed to serve the distinctive needs of newcomer students, they can again play a key role as a catalyst for social recognition of the population of undocumented young people and families. This, in turn, can lead to greater efforts to address undocumented young people's social integration and fight against marginalization.

Schools today are true to Plyler's holding when they understand their responsibilities for child migrants as an active, resource-intensive undertaking that does not attempt to ignore the migration histories and future trajectories of immigrant students. This, in turn, may pave the way for immigrants' rights advocates and policymakers to recognize the growing population of newcomer children in schools who, with resources and security, could bring myriad contributions to society, as do first-wave DREAMers. Last time around, young people demanded social recognition. This time around, schools and policymakers must recognize their responsibility to today's child migrants, to provide them the same space to become agents of change in their communities and U.S. society.

Clinical Professor of Law and Director, Immigrant Family Legal Clinic, UCLA School of Law.