Texas Governor Outrageously Proposes Denying Undocumented Immigrant Children the Right to K-12 Public Education

In September of 1982, the U.S. Supreme Court declared unconstitutional a Texas statute denying children brought to the United States by their undocumented parents the right to public education.  In Plyler v. Doe, the U.S. Supreme Court protected the right of all children living in the United States to a free K-12 public education. The Court also defined the public purpose of our system of public schools, accessible to all children.

In the majority decision, Justice William Brennan wrote these powerful words: “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 continues, quoting from the Supreme Court’s 1954 decision in Brown v. Board of Education: “Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship.”

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.”

Now, when it looks as though today’s U.S. Supreme Court will overturn Roe v. Wade, Texas Governor Greg Abbott says he hopes the Court will overturn other precedents. When he was interviewed on a radio talk show, Governor Abbott suggested that Texas may consider challenging Plyler v. Doe: “The challenges put on our public systems is extraordinary… Texas already long ago sued the federal government about having to incur the costs of the education program, in a case called Plyler versus Doe.  And the Supreme Court ruled against us on the issue about denying, or let’s say Texas having to bear that burden. I think we will resurrect that case and challenge this issue again, because the expenses are extraordinary….”

The Dallas Morning NewsRobert T. Garrett quotes Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Education Fund (MALDEF): “First, Abbott needs some remedial education on Plyler itself… This was a case brought against Texas, not by Texas, as Abbott asserted. The case was filed by MALDEF on behalf of students threatened by a Texas statute allowing schools to exclude undocumented students from public school.”  Garrett adds, “In the four-decade-old ruling, The Supreme Court split 5-4 on declaring the Texas law unconstitutional. But even the four dissenters agreed with the majority that Texas was unwise to pass the law, Saenz noted. ‘All of the justices, including then-Associate Justice William Rehnquist, agreed that the Texas law seeking to exclude undocumented children from school was bad public policy,’ he said.”

Reporting for the NY Times, J. David Goodman explains that: “Attitudes about immigration have shifted in Texas, where former Republican governors like George W. Bush and Rick Perry adopted relatively moderate tones. Mr. Perry, during his term, signed a law allowing undocumented college students access to in-state tuition and financial aid at public universities in Texas. But taking a hard stance on immigration has been a politically comfortable place for Mr. Abbott.”

Goodman reports: “Undocumented immigrants are ineligible for many public benefits. And Texas offers fewer than most states. Edna Yang of American Gateways, an immigration legal services provider in Texas, said that undocumented immigrants in the state qualified for only a small number of benefits, including emergency medical services, food aid for children and public education.”  But, Abbott is protesting the cost of educating English language learners: “The governor’s office has said that the cost of each additional student enrolled in Texas pubic schools is about $6,100 per year, not including the cost of providing bilingual and special education services, which add more than $2,000 in additional spending.”

Goodman adds: “(I)t is against federal law to record the immigration status of students in school, (and) the number of students in question is not precisely known.  An overwhelming majority of children of undocumented migrants were born in the United States and are citizens. Researchers have estimated there are about one million undocumented young people in the country.”

Goodman quotes Justin Driver, author of an extremely significant book on public education and the U.S. Supreme Court: “I view Plyler v. Doe as among the most significant constitutional decisions in the Supreme Court’s history… That is because the decision succeeded in interring this sort of legislation (like the state law Plyer overturned in Texas) and keeping it from spreading all around the country.”

Governor Greg Abbott is, according to Goodman, a former attorney general in Texas. I am shocked that a public official schooled in the role of federal law so flagrantly suggests overturning a Supreme Court decision that protects students’ rights. Many of the children Abbot seeks to exclude from Texas public schools hope someday to become citizens of the United States. Governor Abbott’s entire purpose is to slash Texas’ investment in its public schools, which the Texas constitution defines as a primary responsibility of the state. Abbott’s priority is cutting out teachers and programs designed to serve English language learners, whatever the impact on children’s lives and their preparation for participating in our democracy. For Governor Abbott, the public purpose of public schooling, so eloquently defined and defended in Plyler v. Doe by Justice William Brennan, matters not at all.

School Funding Inequity and Overreliance on Local Property Taxes Have Their Roots in the Jim Crow South

In a powerful new article, Legacy of Jim Crow Still Affects Funding for Public Schools, constitutional law professor, Derek Black and Axton Crolley expose the largely unexamined racist past of the kind of school funding inequity we observe today across many of the fifty states.

Derek Black’s Schoolhouse Burning is the best and most complex history of American public education I know.  While the history of our public schools is generally traced back to New England and Horace Mann, Derek Black’s book examines progress toward equity in the South during Reconstruction, its reversal in the Jim Crow era, the corrections attempted during the Civil Rights Movement, and a period of reaction against the Brown v. Board of Education decision.

A year ago, a local school advocacy group here Cleveland, Ohio sponsored a three part ZOOM discussion of the book. The first discussion attracted over a hundred participants from across our state, and most of them came back for the final two evenings. Again and again people commented on how fascinated they were to explore a history they had never fully understood and how poignantly relevant this history is to the problems our schools face today.

In their new article Black and Crolley describe how, after the collapse of Reconstruction, Southern states devised policies to perpetuate inequality: “Some… used ‘racially distinct tax’ policies that reserved separate funds for white and Black schools. Other states… moved school funding responsibility and control from state officials to local communities. Local officials could then ensure inequality without any specific law mandating it… (D)uring the Jim Crow era, localism became the tool to reverse… progress and equality.  States increased reliance on local taxation, gave local white officials discretion over state funds, and constitutionally secured segregation. Some went so far as to craft color-coded funding systems where white taxes funded white schools exclusively… The development of Northern local school systems was historically distinct. Yet even in some Northern states, racial antagonism and concerns over segregation prompted pushes for local decision-making.”

The U.S. Supreme Court’s decision in Brown v. Board of Education was intended to address this long history of inequality, but there was a serious omission: “Nearly 70 years ago—in its Brown v. Board decision—the Supreme Court framed racial segregation as the cause of educational inequality… That framing rightly focused on segregation’s immediate horror—excluding students from schools based on the color of their skin—but obscured an important fact.  In addition to requiring school segregation, many states also had long segregated school funding. Some had used ‘racially distinct tax’ policies that reserved separate funds for white and Black schools. Other states had moved school funding responsibility and control from state officials to local communities. Local officials could then ensure inequality without any specific law mandating it. Brown’s focus on physical segregation inadvertently left important and less obvious aspects of local funding inequality unchecked.”

Following Brown, subsequent important U.S. Supreme Court decisions perpetuated the problem by emphasizing local control: “Later court decisions did not even recognize that a problem with local funding might exist. To the contrary, they put a preference on local funding over remedying inequality… In the 1973 case of San Antonio Independent School District v. Rodriguez, the court rejected a challenge to the inequality local school funding causes, reasoning that ‘local control’ over school funding was ‘vital to continued public support of the schools’… A year later, in Milliken v. Bradley, the Supreme Court blocked a desegregation remedy that would have spanned multiple districts…. ‘No single tradition in public education is more deeply rooted than local control over the operation of schools.'”

But school funding matters and unequal funding from school district to school district privileges some children and diminishes opportunity for other children: “A large body of evidence shows ‘money matters.’ Increased spending improves college attendance rates, graduation rates and test scores. But, as a 2018 report revealed, school districts enrolling ‘the most students of color receive about $1,800 or 13% less per student’ than districts serving the fewest students of color… Most school funding gaps have a simple explanation: Public school budgets rely heavily on local property taxes. Communities with low property values can tax themselves at much higher rates than others but still fail to generate anywhere near the same level of resources as other communities.  In fact, in 46 of 50 states, local school funding schemes drive more resources to middle-income students than poor students.”

Black and Crolley conclude: “(D)uring the South’s Reconstruction, Black people and progressive whites saw state control as the solution to inadequate and unequal education. They adopted policies to that effect, many of which were enshrined in state constitutions rather than laws reversible by the legislature… An important step in remedying entrenched school funding inequalities is to first recognize that they are rooted in the history of Jim Crow segregation.  Another potential step is to return to the more centralized approach of Reconstruction—an approach that states during their progressive eras have long recognized. And this step makes good constitutional sense, too. After all, every state constitution places the ultimate obligation to fund and deliver public education on states, not local governments.”

Trump Administration’s Rule Change on Affirmative Action Will Solidify Segregation in K-12 Public Schools

It seems unlikely that last week’s action by the Trump Justice Department—to rescind rules on affirmative action implemented by the Obama administration—will materially affect local school districts’ capacity to integrate K-12 schools by race. Although in 1954, the U.S. Supreme Court declared, “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place.  Separate educational facilities are inherently unequal,” a 2007 decision written by Chief Justice John Roberts had already caused school districts to step significantly back from a commitment to racial integration in elementary and secondary schools.

Roberts’ decision in the 2007 case, Parents Involved, banned the use of race as a factor to be explicitly considered in school assignment plans unless, of course, the school district remained under court order to remedy government-imposed de jure segregation (purposely maintaining separate schools for black and white children). Now, 60 years after Brown v. Board of Education, fewer and fewer Southern school districts that explicitly maintained separate schools remain under court order.

Today, school districts attentive to school segregation have been more likely to try to create within-district, voluntary policies to mix children by race and income across the district’s schools. Like a number of school districts, Louisville (Jefferson County, Kentucky) and Seattle had been using racial balance as an explicit factor to balance school enrollment. In 2007, two lawsuits, one in Louisville and another in Seattle, were combined into the case we now know as Parents Involved.  Here is the essence of Chief Justice Roberts’s decision: “The Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race… The way to stop discrimination on the basis of race is to stop discrimination the basis of race.”

In a strongly worded dissent, Justice Stephen Breyer wrote: “These cases consider the longstanding efforts of two local school boards to integrate their public schools.  The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation… We have approved ‘narrowly tailored’ plans that are no less race-conscious than the plans before us.  And we have understood that the Constitution permits local communities to adopt desegregation plans even when it does not require them to do so.” “Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves.  It was the promise of true racial equality—not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.”

The 2007 Supreme Court decision in Parents Involved has already had a chilling effect on school districts’ voluntary efforts to integrate their schools.  Some school districts have continued to make the effort—using family income as a sort of proxy for race. Cambridge, Massachusetts is the example we read about most often.

The Washington Post‘s Nick Anderson and Moriah Balingit describe the history of race-based affirmative efforts to integrate K-12 schools since the 2007 decision. They also describe how the recent Trump Justice Department’s action to revoke Obama-era guidance may affect public school districts across the country: “Revoking the Obama-era guidance on affirmative action could affect elementary and secondary schools that have grappled with racial imbalances. In 2007, the high court sharply limited how school districts could use race in enrollment. The ruling struck down race-based policies in Seattle and Louisville. It confused school officials, who worried that their policies for assigning students ran afoul of the law. The following year, the Bush administration advised schools to use ‘race-neutral methods’ to determine where children go to school, suggesting that officials use socioeconomic status instead of race. The Obama administration in 2011 issued its guidance, which spelled out how schools could use race in enrollment policy to promote diversity and avoid isolating students of one race in a single school. The 2011 guidance sought to help school districts thread the needle when using race or other factors in enrollment policies. That guidance also cautioned school officials that they should be careful when using race and that they could do so only in limited circumstances.”

Anderson and Balingit describe the reaction of Rachel Kleinman, senior counsel for the NAACP Legal Defense Fund, to last week’s withdrawal by the Trump administration of the Obama era guidance and its return to Bush-era rules: “Rachel Kleinman… said withdrawing the guidance could deter districts from implementing policies to increase diversity. Those districts will no longer be able to rely on the Education Department, she said, to help them craft a policy that complies with the Supreme Court’s decision (in Parents Involved). Kleinman is quoted, saying the recent action of the Trump Justice Department “might chill school districts from doing anything at all.”  She further explains that the reversion to the older Bush guidance “will have no impact on laws that govern school integration and admissions, nor will it affect the hundreds of schools under desegregation orders.”

Considering the current and future makeup of the U.S. Supreme Court, it is unlikely that Parents Involved will be overturned any time soon.  It is therefore unlikely that school districts will be launching innovative school integration programs. That is a sad reality.  Reflecting on last week’s Trump administration action to rescind Obama-era guidance on school integration and affirmative action, the Washington Post‘s Valerie Strauss quotes Richard Rothstein, whose recent book, The Color of Law, examines all sorts of government policies that have contributed over the decades to the racial segregation of our society.  Rothstein, who strongly supports racial integration, believes these actions—in the Federal Housing Administration and the Veterans Administration, for example—have in reality segregated our society in ways that could, with another kind of Supreme Court, be remedied because they are examples of de jure segregation by government.

Strauss quotes a 2014 article by Rothstein in The American Prospect in which Rothstein explains why affirmative programs in public schools remain absolutely necessary to remedy the damage of slavery and Jim Crow: “Even for low-income families, other groups’ disadvantages—though serious—are not similar to those faced by African Americans. Although the number of high-poverty white communities is growing (many are rural)… poor whites are less likely to live in high poverty neighborhoods than poor blacks.  Nationwide, 7 percent of poor whites live in high-poverty neighborhoods, while 23 percent of poor blacks do so. Patrick Sharkey’s Stuck in Place showed that multigenerational concentrated poverty remains an almost uniquely black phenomenon; white children in poor neighborhoods are likely to live in middle-class neighborhoods as adults, whereas black children in poor neighborhoods are likely to remain in such surroundings as adults.  In other words, poor whites are more likely to be temporarily poor, while poor blacks are more likely to be permanently so…. Certainly, Hispanics suffer discrimination, some of it severe… but the undeniable hardship faced by recent, non-English speaking, unskilled, low-wage immigrants is not equivalent to blacks’ centuries of lower-caste status. The problems are different, and the remedies must also be different….”

New Reports Confirm Charter Schools Promote Racial Segregation in CT and NC

For more than half a century since the U.S. Supreme Court decision in Brown v. Board of Education, our society has believed we value policies that support racially integrated public schools.  In the past two decades, however, the rapid growth of the publicly funded but privately managed charter school sector has promoted racial segregation.  Reports released this month from Connecticut and North Carolina document that when parents choose schools in the charter marketplace, they tend to segregate their children in schools dominated by large majorities of children of their own race.

Gary Orfield and Jongyeon Ee, of the Civil Rights Project at UCLA, describe Connecticut School Integration that has been accomplished in the public schools and intentionally diverse magnet schools that were the result of remedies in Sheff v. O’Neill, the 1989 school funding and desegregation lawsuit in Hartford.  “The Sheff case was a long struggle by a group of outstanding civil rights lawyers, plaintiffs and local residents who supported the change and those who worked with them… The efforts have not eliminated segregation or ended racial achievement gaps but it is the only state in the Northeast that is going in a positive direction and it has created voluntary processes that have clearly reduced severe segregation in a time devoid of national leadership.”

While the extraordinary inter-district magnet schools with specialty curricula and the inter-district enrollment program that Sheff created have increased the mixing of students from city and suburb and demonstrated that black, white and Hispanic students can happily and successfully learn together, Connecticut’s charter sector, by contrast, has become highly segregated.  Orfield and Ee explain: “A 2014 report by Connecticut Voices for Children concluded that ‘a majority of the magnet schools and technical schools were ‘integrated’… but only 18% of charter schools.’  In fact ‘the majority of charter schools were instead ‘hypersegregated’ with a student body composed of more than 90% minority students.'”  Orfield and Ee recommend that in Connecticut, where public and magnet schools have become more integrated, “Charters should come under the state’s diversity policies and requirements and should have goals, recruitment strategies, public information and transportation policies to foster diversity including diversity of language background.”

In a second paper, published last week by the National Bureau of Economic Research, scholars from Duke University document that segregation of charters has been an accelerating trend in North Carolina.  The paper, “The Growing Segmentation of the Charter School Sector in North Carolina,” by Helen F. Ladd, Charles T. Clotfelter, and John B. Holbein, is behind a paywall, but an early draft, can be downloaded here from among the papers presented at the 40th annual conference of the Association for Education Finance and Policy.  The Duke researchers describe a study conducted between 1999 and 2012 and conclude: “The state’s charter schools, which started out disproportionately serving minority students, have been serving an increasingly white student population over time.”  The authors also conclude that rising test scores in North Carolina’s charters are not the result of improved school quality—as has been suggested by promoters of charter schools—but are instead the result of a shift in population as many charters have come to enroll students with higher average family income: “Our analysis of the changing mix of students who enroll in charter schools over time… leads us to believe that a major factor contributing to the apparent improved performance of charter schools over the period (of the study) may have as much or more to do with the trends in the types of students they are attracting than improvements in the quality of the programs they offer…  Taken together, our findings imply that the charters schools in North Carolina have become segmented over time, with one segment increasingly serving the interests of middle class white families.”

Reporting on the Duke study for the Washington Post, Jeff Guo explains that North Carolina laws governing charter schools may be contributing to the diminishing number of minority students in North Carolina’s charter schools: “One problem is that disadvantaged students have less of a chance to attend a charter school.  First, they or their parents have to be plugged in enough to know which are the good charter schools and motivated enough to apply.  Then, they need to have the resources to actually attend the charter, because unlike regular public schools, charter schools in North Carolina do not have to offer transportation or lunch to students.  For poor students who rely on school buses and free meal programs, the costs associated with attending a charter school may discourage them from the opportunity.”

As school districts across the South have remedied de jure segregation and been released from their court orders and after the U.S. Supreme Court declared in 2007 that race cannot be the sole basis of voluntary desegregation plans to remedy segregation by race, neither the federal government nor the states have been proactively supporting school integration.  It is another thing altogether, however, when market-based charter schools, which are said by their promoters to be public schools, are freed from the existing civil rights policies that govern public schools and that our society still claims to value.

Rich Neighborhoods Seceding to Form Their Own Segregated Enclaves in New Trend

Racial segregation is a reality across the South and across America’s big cities.  In Reign of Error, Diane Ravitch quotes the data:  “80 percent of Latino students and 74 percent of black students attend majority-nonwhite schools. Forty-three percent of Latinos and 38 percent of black students attend intensely segregated schools, where fewer than 20 percent of students are white…  Half of the more than sixteen hundred schools in New York City are more than 90 percent black and Hispanic.  Half of the black students in Chicago and one-third of the black students in New York City attend apartheid schools.” (p. 292)

Segregation by income has also grown enormously since 1970.  Stanford University educational sociologist Sean Reardon documents that the proportion of families in major metropolitan areas living in either very poor or very affluent neighborhoods increased from 15 percent in 1970 to 33 percent by 2009, and the proportion of families living in middle income neighborhoods declined from 65 percent in 1970 to 42 percent in 2009.

While the extent of segregation is deplorable 60 years after the U.S. Supreme Court decision in Brown v. Board of Education, it is well documented and not surprising.  Last week, however, Businessweek reported what it says may be becoming a new trend that will accelerate resegregation across school districts in the South that have been released from desegregation court orders.  According to Businessweek, “About half of the almost 500 districts under desegregation orders in 1990 were released by 2009…”  These districts have been awarded what is known as unitary status, by which the court releases them from oversight because they are said to have done all they were able to do to integrate their schools.

In several metropolitan areas, wealthy neighborhoods of large school districts are now simply seceding—pulling out to form their own small, exclusive, white school districts.  “In Alabama, which makes it relatively easy to create districts, two Birmingham suburbs have left the countywide system in the past two years.  After the majority-black Memphis schools merged last year with the majority-white county district, Tennessee’s Republican-dominated legislature lifted a decades-old ban on creating new systems, and six suburbs seceded, approving sales tax increases to pay for their schools.  Parent groups in Atlanta and Dallas are considering similar proposals.”

Businessweek‘s story last week is about parents in East Baton Rouge Parish, Louisiana.  Parents supporting an effort called “Local Schools for Local Children,” including parents whose children have been attending private, segregated academies, want to take their tax dollars and pull out of the “42,000-student school district they share with mostly black neighborhoods nearby, where many families live in poverty.”  Whether the parents in Baton Rouge will be able to form their own exclusive school district remains in question because the Louisiana general assembly has not yet approved the enabling legislation.  Persistent parents are working to form a separate town in order to help their chances.

“‘It’s going to devastate us,’ says Tania Nyman, who has two elementary-age children in Baton Rouge magnet schools. ‘They’re not only going to take the richer white kids out of the district, they are going to take their money out of it.'”  According to a research report from a local university, per-pupil spending in Baton Rouge would drop from $9,635 to $8,870.  According to the Businessweek reporter, this would be “a painful cut in a district where 82 percent of students are poor enough to qualify for free or subsidized school meals.  In the breakaway district, spending would rise to $11,686 per student.”