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.

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Major Civil Rights Organizations Come Together to Demand Closing of Public School Opportunity Gaps

Eleven of our nation’s most prominent national civil rights organizations released a strong statement on Tuesday to support new investments in the public schools, the institution these groups call “the backbone of our democracy.”  The statement is a rejection of the test-and-punish strategies that have dominated federal and state policies around public schools for over a decade.

The statement’s authors are Advancement Project, the Lawyers Committee for Civil Rights Under Law, the League of United Latin American Citizens (LULAC), the Mexican American Legal Defense and  Educational Fund (MALDEF), the National Association for the Advancement of Colored People (NAACP), the National Opportunity to Learn Campaign, the National Urban League, the NAACP Legal Defense and Educational Fund (LDF), the National Council on Educating Black Children, the National Indian Education Association, and the Southeast Asia Resource Action Center.  It is noteworthy that these organizations—which have not always been able to agree on public education strategies—have now come together to insist on the urgent need for improving the public schools that serve the majority of children represented among their constituents.

The statement, sent to the President, the Secretary of Education and leaders in Congress emphasizes: “The current educational accountability system has become overly focused on narrow measures of success and, in some cases, has discouraged schools from providing a rich curriculum for all students….  This particularly impacts under-resourced schools that disproportionately serve low-income students and students of color.  In our highly inequitable system of education, accountability is not currently designed to ensure students will experience diverse and integrated classrooms with the necessary resources for learning and support for excellent teaching in all schools.  It is time to end the advancement of policies and ideas that largely omit the critical supports and services necessary for children and families to access equal educational opportunity…”

Criticizing the overly punitive policies of the No Child Left Behind Act, these civil rights organizations urge policy makers to “strengthen, rather than weaken, schools in our communities, so that they can better serve students and accelerate student success.”  Accountability must be expanded to monitor resource inputs as well as outcomes and “should evaluate the extent to which productive learning conditions are in effect for all students in each school…”  Federal, state, and local accountability should be expanded to cover (1) equity of resource opportunities including funding and access to instructional materials, technology and facilities and considering students’ needs based on poverty, and culture/language learning needs; (2) access to high-quality curricula and enrichment; (3) individualized services that build upon children’s specific cultural and linguistic assets; (4) qualified, certified, competent, and racially and culturally diverse teachers, principals and other education professionals and including ongoing professional development; and (5) adequate and equitably distributed social, emotional, nutritional and health services.

In the midst of the punitive accountability strategies of the No Child Left Behind Act and the Obama administration’s competitive programs that prescribe radical turnaround programs that fire staff, close schools, and encourage privatization, the civil rights organizations endorsing the new declaration advocate improving traditional  public schools in the communities that serve our nation’s most vulnerable children.  “Students of color represent more than 50 percent of youth and are more than twice as likely to attend segregated schools.  Second language learners whose first language is not English now represent 10 percent of all public school students nationwide, and students living in poverty represent virtually half of all U.S. public school students.”  “On behalf of millions of students and families, and civil rights organizations, communities of color, and organizations that reflect the new, diverse majority in public education, we write urging implementation of a set of strong recommendations for advancing opportunity and supporting school integration, equity, and improved accountability within our nation’s systems of public education.”