Unequal treatment of students is not fair.

Sunday, May 8th, 2011
By: Jonathan MontagJ.D.

A remarkable thing a parent learns from raising children is their innate understanding of fairness. There is no toddler indoctrination camp that teaches fairness. Barney, Teletubbies, and Blues Clues don’t teach it. In the olden days, Sesame Street, Zoom, or the Three Stooges (yes, in the olden days, toddlers watched the Stooges) didn’t. Maybe Mister Rogers and Davey and Goliath did, but not enough to completely indoctrinate kids. Split a sandwich, cut a piece of cake, share a can of soda, allow a child to stay up late, and the “That’s not fair,” complaint is raised immediately. Have you ever heard a child say, “Well, Timmy got a slightly larger slice of pizza than me (no English-speaking child outside of Belgravia would say, “a slightly larger slice of pizza than I”) but, you know, it is not that easy to cut a pizza into eight equal slices, I am still getting an ample slice, and do not really need more empty calories. Besides it will all work out in the end, next time I may get a larger portion of something. It’s not like my parents hate me. It’s just the way things are.” No, never.

In American law, the concept exists as well in the equal protection clause. Section 1 of the 14th Amendment says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Instead of screaming, “That’s not fair,” lawyers scream, “That’s a violation of equal protection.” (We also scream, “That’s violation of due process,” complaining about how the pizza is sliced rather than what the slice looks like at the end, but we’ll leave that for another day).

Immigration law is chock full of laments about things not being fair. The outcome of events seems to be so full of serendipity. Given a set of similar facts, one person gets caught, another is let go. One person gets a bond, another is denied one. One person gets forgiven, another is ordered removed. One person wins on appeal, another loses. One person gets media attention or phone calls to officials from influential people, another gets no outside support.

We are seeing this a lot with students being deported. For years immigration law followers have been watching DREAM Act  legislation be considered and rejected by Congress. The legislation is designed to allow foreigners who came to the United States as children to legalize their status, essentially to prevent the iniquities of the parents to be visited on the children (in the first generation – three or four times more generous than in Exodus). Without the DREAM Act, many of these people get deported. Some become eligible for relief, such as adjustment of status or Cancellation of Removal or asylum and related relief. Most are not eligible for anything and must leave the country.

But for a lucky few, the government suddenly backs off. One encounters these stories in the news quite frequently, like here, and here, and here.

A system where some people get very lucky and some people get the shaft is not fair, is not just, and is not equal treatment under the law. One solution is to treat everyone equally horribly. Hopefully, policy makers will take a more humane tack. Posted May 8, 2011.



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