The 1982, U.S. Supreme Court decision in Plyler v. Doe established 14th Amendment protection of the right to primary and secondary education for children of undocumented immigrants. Writing for the majority, Justice William Brennan renounced those who had advocated against the protection of the rights of undocumented children, declaring: “It is difficult to understand precisely what the state hopes to achieve by promoting the creation and perpetuation of a sub-class of illiterates.”
At the Law Professor Blogs Network last week, Derek Black explains further: “This flows from the general principle that ‘all persons within the territory of the United States,’ including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government…. The Fourteenth Amendment was designed to afford its protections to all within the boundaries of a State.”
The Supreme Court decision in Plyler v. Doe has been in the news because last week Betsy DeVos, our U.S. Secretary of Education, appeared ignorant of the meaning of federal law when she testified before the House Education and the Workforce Committee. The Washington Post’s Moriah Balingit describes the interchange between Rep. Adriano Espaillat of New York and DeVos: “Education Secretary Betsy DeVos said on May 22, that individual schools should decide whether to call I.C.E. if they suspect their students are undocumented… Rep. Adriano Espaillat (D-N.Y.), an immigrant from the Dominican Republic who was at one time undocumented, pressed the secretary for her positions on immigration enforcement. ‘Inside the school,’ Espaillat asked, ‘if a principal or a teacher finds out that a certain child is undocumented, or his or her family members are undocumented, do you feel that the principal or teacher is responsible to call [Immigration and Customs Enforcement] and to have that family reported?'”
Balingit quotes DeVos’s response to Rep. Espaillat: “Sir, I think that’s a school decision… That’s a local community decision.”
Balingit explains that when, in 1994, California voters passed Proposition 187, “which required schools to kick out undocumented students and to report students they suspected of being undocumented to federal authorities… the law was struck down in federal court.” In 2011, Alabama passed a law requiring educators to question students about their immigration status, but the law was later declared unconstitutional by a federal appellate court.
Balingit describes the responses to DeVos’s comment last week from civil rights and education organizations. Lorella Praeli, ACLU’s director of immigration policy, declared: “Secretary DeVos is once again wrong.”
MALDEF, the Mexican American Legal Defense and Education Fund, responded: DeVos “desperately needs competent legal advice.”
Lily Eskelsen Garcia, the President of the National Education Association commented on the law but also went further as a teacher to consider the impact of the Secretary’s words on the children in America’s public schools: “Betsy DeVos should know better, and to suggest otherwise only serves to frighten children.”
One can only hope DeVos’s statement on Plyler v. Doe represents her own ignorance of the law and that this isn’t one more example of DeVos pushing to relax her own department’s enforcement of what has been considered settled Constitutional law. Four years ago, in May of 2014, the U.S. Department of Education and the U.S. Department of Justice together sent a “Dear Colleague” letter to state education agencies and public school districts across the United States precisely to clarify the implications for schools of the law our current Secretary of Education seems not to understand.
Here is some of what that letter says: “Under Federal law, State and local educational agencies (herinafter ‘districts’) are required to provide all children with equal access to public education at the elementary and secondary level. Recently, we have become aware of student enrollment practices that may chill or discourage the participation, or lead to the exclusion, of students based on their or their parents’ or guardians’ actual or perceived citizenship or immigration status. These practices contravene Federal law… As Plyler makes clear, the undocumented or non-citizen status of a student (or his or her parent or guardian) is irrelevant to that student’s entitlement to an elementary and secondary public education.”
The Department of Education’s “Dear Colleague” letter warns school personnel about specific practices: “(Y)ou must ensure that you do not discriminate on the basis of race, color, or national origin, and that students are not barred from enrolling in public schools… on the basis of their own citizenship or immigration status or that of their parents or guardians. Moreover, districts may not request information with the purpose or result of denying access to public schools on the basis or race, color, or national origin…. (A) district may require copies of phone and water bills or lease agreements to establish residency. While a district may restrict attendance to district residents, inquiring into students’ citizenship or immigration status, or that of their parents or guardians would not be relevant to establishing residency within the district… Similarly, we are aware that many districts request a student’s social security number at enrollment for use as a student identification number. A district may not deny enrollment to a student if he or she (or his or her parent or guardian) chooses not to provide a social security number.”
Derek Black of the Law Professor Blog concludes: “As one commentator remarked of her performance, DeVos ‘makes Sarah Palin look like a Rhodes scholar.’ I generally try to avoid personal attacks of this sort, but it struck me as revealing a painful underlying truth.. Time and again, she reveals that she has absolutely no grasp of the basic rules of the road on which she is traveling. She instead makes her way based on gut instincts that are wrong more often than not. They are wrong because her instincts are grounded in political agendas that do not come close to approximating the law as it stands—the law that is her job to administer and reinforce, not twist and ignore.”
We can only hope that Betsy DeVos has listened to the criticism of her interpretation of federal immigration law. And we must continue relentlessly to remind her that a primary purpose of the U.S. Department of Education’s Office for Civil Rights is to intervene when the states’ and local school districts’ education policies violate children’s civil rights.