Immigration and K-12 Education — Revised Public Charge Rule

State of California, et al. v. U.S. Department of Homeland Security, et al. Case No. 19-17213 – Federal Court of Appeals, Ninth Circuit New

Member(s) Involved: On behalf of all California school districts and county offices of education

Current status and/or outcome:

On Dec. 2, 2020, in a victory for immigrant families, as well as for states and municipalities, including school districts and county offices, the United States Court of Appeals for the Ninth Circuit, in a combined appeal, affirmed lower court orders barring the Department of Homeland Security from enforcing the revised public charge rule in several states, including California, until the validity of the rule is determined.

Importance of statewide issue:

The revised public charge rule would place an additional burden on schools, as children of immigrant families potentially become increasingly reliant on school-based health, nutrition, and other services.

Summary of the case:

On Aug. 16, 2019, California, Maine, Pennsylvania, Oregon, and the District of Columbia filed suit against the U.S. Department of Homeland Security, among others. The suit challenges the expanded definition set forth in the Final Rule on Public Charge Ground of [Immigration] Inadmissibility (“public charge rule”). Plaintiffs sought a declaratory judgment that the revised rule is unlawful under the Administrative Practices Act and the U.S. Constitution’s equal protection guarantee.

Historically, the public charge rule required immigration officials to examine whether a noncitizen was “primarily dependent” on the government for subsistence when reviewing an application seeking an extension of stay, change of visa category, or lawful permanent resident status. The new public charge rule requires immigration officials to consider as a negatively weighted factor, the use of cash-based assistance programs as well as a wide variety of federal non-cash-based subsidies, including subsidies that an immigrant may be legally eligible to receive, such as Medicaid, SNAP/food stamps, Section 8 housing, etc. The revised public charge rule could impact immigration related decisions for non-citizens receiving such subsidies and/or act as a strong deterrent for non-citizens who may want to apply for such subsidies in the first place. This could place an additional burden on schools, as children of immigrant families become increasingly reliant on school-based health, nutrition and other services to avoid using federal programs. The District Court for the Northern District of California issued a preliminary injunction prohibiting implementation of the new public charge rule.

On appeal, CSBA and the ELA filed an amicus brief before the Ninth Circuit Court of Appeals, focused on the impact the revised public charge rule is likely to have on public education in California.

On January 27, 2020, the U.S. Supreme Court ruled in a 5-4 decision in a separate case, Department of Homeland Security v. New York, to allow the revisions to the public charge rule to go into effect while legal challenges to the expansion of this rule, like this case, could proceed through the lower courts.