Heritage Foundation Wants to Deny the Right to Public Schooling for Undocumented Immigrant Children

I like to think I know enough about awful public policy that it would be hard to surprise me, but I confess that the beginning of Kalyn Belsha’s new report for Chalkbeat describes a politics so indecent that I was shocked:

“An influential conservative think tank has laid out a strategy to challenge a landmark Supreme Court decision that protects the right of undocumented children to attend public school. The Heritage Foundation, which is spending tens of millions of dollars to craft a policy playbook for a second Trump presidential term… released a brief calling on states to require public schools to charge unaccompanied migrant children and children with undocumented parents tuition to enroll.”  (You can look at the Heritage Foundation’s very short  policy brief which is part of Heritage’s Project 2025 that lays out an extremely conservative platform.)

Belsha explains Heritage’s reasoning for this cruelty: “Such a move ‘would draw a lawsuit from the Left,’ the brief states, ‘which would likely lead the Supreme Court to reconsider its ill-considered Plyler v. Doe decision’—referring to the 1982 ruling that held it was unconstitutional to deny children a public education based on their immigration status.”

We like to think we are kinder and more civilized in America than we used to be in the days of slavery,  Jim Crow, and Bury My Heart at Wounded Knee, but I guess the Heritage Foundation feels comfortable taking us back to 1975, when Texas passed a law to deny undocumented children the right, enjoyed by all children in the United States, to a free public education.

Belsha explains: “Texas passed a law in 1975 saying that public schools would not receive state funding for the education of undocumented children and that districts could bar these students from attending public school for free. Two years later, the Tyler Independent School District started charging undocumented children $1,000 a year to attend school—a sum district officials knew would be unaffordable for the area’s immigrant families who often worked in Tyler’s famous rose industry, along with meat-packing plants and farms.”

A lawsuit challenging the Texas plan eventually reached the U.S. Supreme Court, which, in 1982, declared the Texas statute unconstitutional.  The Court also defined the public purpose of our system of public schools, accessible to all children. In the majority opinion in Plyler v. Doe, Justice William Brennan wrote:

“A Texas statute which withholds from local school districts any state funds for the education of children who were not ‘legally admitted’ into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment… (T)he Texas statute imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. These children can neither affect their parents’ conduct nor their own undocumented status. The deprivation of public education is not like the deprivation of some other governmental benefit. Public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage: the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological well-being of the individual, and poses an obstacle to individual achievement.”

Brennan is careful not to contradict the precedent in San Antonio v Rodriguez—that public education, never mentioned in the U.S. Constitution, is not protected as a federal fundamental right—but he comes as close as possible when he declares that for children brought into the United States by undocumented immigrants: “(W)hen the State provides an education to some and denies it to others, it immediately and inevitably creates class distinctions of a type fundamentally inconsistent with those purposes, mentioned above, of the Equal Protection Clause. Children denied an education are placed at a permanent and insurmountable competitive disadvantage, for an uneducated child is denied even the opportunity to achieve. And when those children are members of an identifiable group, that group—through the State’s action—will have been converted into a discrete underclass.”

In his decision in Plyler v. Doe, Brennan identifies the defining principles of our nation’s education system: guaranteeing free public schooling (1) to prepare every child to achieve and (2) to prepare all children to contribute socially, economically, intellectually and politically as part of our democracy.  That the Heritage Foundation has developed a strategy to threaten these rights for immigrant children confirms the abyss toward which many of us fear the far right is driving our society.

There are, however, people from all corners of our nation who are pushing back. We need to highlight their work and join them. A lot those people are public school teachers whose life work is to nurture their students.

For example: NEA Today‘s Tim Walker profiles Missy Testerman, the 2024 National Teacher of the Year: “A Tennessee native and first-generation college graduate, Testerman has been teaching for 31 years.” “The rural Appalachia town in Tennessee where Missy Testerman teaches is home to families who have been there for generations. But a growing number of students are from families who are newer to the area, representing diverse cultures from around the world. Many in the community view these newcomers with suspicion, but Testerman has dedicated herself to building bridges and ensuring that every student, no matter their background or circumstances has a chance to succeed.”

Walker describes how Testerman has continued throughout her career to expand her skills: “In 2022, as she approached her third decade teaching, Testerman added an English as a Second Language (ESL) licensure to her credentials…. Testerman currently serves as the district ESL specialist and ESL program director. She works with 21 children who hail from five different countries on four continents and speak five different languages. Wanting to ensure that immigrant students and families had an advocate in their small town, Testerman is determined to see everyone succeed in school.” “In a small town like Rogersville, with a poverty rate well above the national average, a good education can be the foundation for a brighter future. ‘Our schools enabled us to help students change the trajectories of their lives, ‘ Testerman said.

Becky Pringle, president of the National Education Association, congratulates Testerman: “Every student in every public school in this country deserves a teacher like Testerman. She stands up for those students who feel unseen, unheard, unappreciated, and undervalued in America. On behalf of the NEA’s more than three million members, we congratulate Missy for creating an inclusive environment where every student feels welcome, no matter their race, background or ability.”