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.

White House Imposes “Public Charge Rule” but 1982 Supreme Court Decision Blocks Efforts to Deny Public Education to Undocumented Children

On the front page of yesterday’s NY Times appeared, How Stephen Miller Seized the Moment to Battle Immigration, and yesterday’s Washington Post featured, The Ghostwriter: The Adviser Who Scripts Trump’s Immigration Policy.  These stories profile one of President Donald Trump’s most influential advisers—a sinister, skilled and influential manipulator of policy, other staff, and the President himself.

Miller is described by the Post‘s Nick Miroff and Josh Dawsey as a deeply involved in the “immigration restrictionist movement.” For the NY Times, Jason DeParle describes Miller as “a speechwriter, policy architect, personnel director, legislative aide, spokesman and strategist.  At every step, he has pushed for the hardest line. When Mr. Trump wavered on his pledge to abolish protections for 800,000 so-called Dreamers—people brought illegally to the United States as children—Mr. Miller urged conservative states to threaten lawsuits. Mr. Trump then canceled the protections. When the president later mulled a deal to restore them, Mr. Miller stacked the negotiations with people who opposed the move, leading Mr. Trump to abandon compromise and rail against immigrants from ‘shithole countries.'”

Miller is described as skilled at working behind the scenes to manipulate staff at all levels including the President himself, but he has worked to keep a low profile. This week’s press coverage likely results from a new executive regulation—the “public charge rule”— finalized this week to promote Miller’s obsession: making America white again. The rule will take effect in mid-October.

Neither profile focuses on the effect of Miller’s policies on children—neither on Miller’s willingness to punish children for their parents’ border crossings, nor on Miller’s efforts more broadly to discourage immigration altogether by violating children’s rights or even isolating them in cages in detention centers at the border.  But the Washington, D.C., child advocacy organization, First Focus explains the potentially devastating implications of the new public charge rule on the children in immigrant families. The public charge rule will affect later considerations for citizenship qualification when immigrants eventually seek to acquire a green card or become a U.S. citizen. The new rule applies to legally documented immigrants as well as the undocumented: “The Trump administration has finalized a rule that will expand the definition of a public charge when determining eligibility for individuals applying for admission to the U.S. or for adjustment of status to that of lawful permanent resident (green card).  This expansion will allow for the consideration of an applicant’s use of services such as Medicaid, the Supplemental Nutritional Assistance Program (SNAP), Federal, State and local cash assistance programs such as Temporary Assistance for Needy Families (TANF) and subsidized housing vouchers… The rule is expected to go into effect on October 15, 2019.”

For Bloomberg News, reporters Jennifer Jacobs and Justin Sink succinctly summarize the public charge rule: “Any immigrant who has used Medicaid, public housing assistance or food stamps for more than 12 months over a 36-month period can be denied permanent resident status under the new rule.”

First Focus explains how the new rule will possibly affect children’s eventual right to citizenship when, by no choice of their own, their parents use public services: “In the rule, DHS (the Department of Homeland Security) recognizes that children are not making decisions to apply for benefits themselves, yet they (at HHS) make no exemption for those who fall under a head of household. Alarmingly, they go out of their way to argue that there is no need for a child to have the capacity to understand the consequences of these actions.  While children are specifically exempt from Medicaid, other benefits such as the Supplemental Nutrition Assistance Program (SNAP) or federal, state and local cash assistance programs such as Temporary Assistance for Needy Families (TANF) will be used against children when seeking adjustment of immigration status… When it comes to housing assistance, there is no way to separate benefits to parents and their children who live in the same home.”  The worry is that parents will fail to seek Medicaid coverage for themselves, and thereby threaten their children’s security, that children will go hungry or lose the right to free and reduced price lunch at school, and that expanding the public charge rule “will have a broad chilling effect and will deter all immigrant households from accessing any essential services out of fear it will negatively impact their immigration status.”

In another respect, however, the rule of law has clearly blocked Stephen Miller’s efforts to discourage immigration by threatening and punishing children.  Miller’s strategy this time was to deny public education to the children of undocumented  immigrants.  Bloomberg‘s Jacobs and Sink reported on Saturday that Miller has pursued a several years’ campaign within the administration to deny K-12 public school education to the children of undocumented immigrants: “Trump senior adviser Stephen Miller had been a driving force behind the effort as early as 2017, pressing cabinet officials and members of the White House Domestic Policy Council repeatedly to devise a way to limit enrollment…. Starting in late 2017, Miller pressed hard to find a way to limit undocumented immigrants’ access to public services, including education…. That effort included consideration last year of a guidance memo issued by the Education Department that would tell states they had the option to refuse students with an undocumented status to attend public schools from kindergarten through high school.  A memo was never issued.. The White House’s push was dropped because members of the administration determined the plan would violate Plyler v. Doe, a 1982 Supreme Court case that prohibited states from denying free public education based on their immigration status.”

Newsweek reporter Matt Keeley describes the 1982 decision in Plyler v. Doe: “The Court ruled in a 5-4 decision that this policy was in violation of the Fourteenth Amendment, which says that states cannot ‘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.'” Keeley quotes from Justice William Brennan’s majority decision in Plyler v. Doe: “The children who are the plaintiffs in these cases are special members of this underclass…. Those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated… Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”

Justice Brennan’s words perfectly describe why many American’s are so alarmed by the immigration policies emanating from the Trump administration and, apparently, designed by Stephen Miller—separation of young children and their parents at the border—the filthy and crowded detention centers for immigrant children—the failure to ensure protection for Dreamers—and now the public charge rule. Not only are these policies examples of cruelty, but also: “Legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”

Growing Number of Undocumented Adolescents Warehoused in Tents, Denied an Education

Do you remember the thousands of migrant children detained at the border?  It is easy to get distracted these days by crisis after crisis in the federal government and forget about important issues. When I found myself wondering recently whether there are still children and adolescents being detained, I realized I didn’t know whether or how this had all ended or been dragged on.  Then I read yesterday’s NY Times.

Caitlin Dickerson reports: “In shelters from Kansas to New York, hundreds of migrant children have been roused in the middle of the night in recent weeks and loaded onto buses with backpacks and snacks for a cross-country journey to their new home: a barren tent city on a sprawling patch of desert in West Texas.  Until now, most undocumented children being held by federal immigration authorities had been housed in private foster homes or shelters, sleeping two or three to a room.  They received formal schooling and regular visits with legal representatives assigned to their immigration cases.  But in the rows of sand-colored tents in Tornillo, Tex., children in groups of 20, separated by gender, sleep lined up in bunks. There is no school: The children are given workbooks that they have no obligation to complete.  Access to legal services is limited. These midnight voyages are playing out across the country, as the federal government struggles to find room for more than 13,000 detained migrant children—the largest population ever—whose numbers have increased more than fivefold since last year.”

The children being moved to the tent city in Texas are not toddlers or pre-schoolers: “Most of the detained children crossed the border alone, without their parents. Some crossed illegally; others are seeing asylum. Children who are deemed ‘unaccompanied minors,’ either because they were separated from their parents or crossed the border alone, are held in federal custody until they can be matched with sponsors, usually relatives or family friends, who agree to house them while their immigration cases play out in the courts.”

Dickerson adds that the rapid growth in the number of young people in custody—fivefold since last year—may seem surprising because the number of children crossing the border has not significantly increased. So, what is causing overcrowding in detention facilities and causing the federal government to move children to tent cities?

It turns out the problem is the Trump administration’s punitive crackdown this year on illegal immigration. The Center for American Progress’s Leila Schochet and Tom Jawetz provide some details: “Facilitating the safe and timely release of immigrant children from government custody has historically been a key priority of the Office of Refugee Resettlement (ORR).  A child in ORR custody can be placed into the care of an adult sponsor in the United States—a parent, family member, or other trusted adult that the U.S. Department of Health and Human Services deems capable of providing for the child’s physical and mental well-being. Previously, HHS would vet potential sponsors with the child’s best interest in mind and would not consider a sponsor’s immigration status when determining whether or not they were fit to care for the child.”  But in April, the Trump administration changed the rules, demanding that, “Immigration and Customs Enforcement (ICE)… vet adult sponsors and other adults living in a sponsor’s household by taking their fingerprints and providing Health and Human Services their immigration status, name, date of birth, and other personal history.”

The NY Times‘ Dickerson adds that ICE reports it has, “arrested dozens of people who applied to sponsor unaccompanied minors.”  ICE confirms that 70 percent of those arrested had no previous arrest or criminal history.

The Trump administration is now warehousing in tents a growing population of young people because it has frightened family members and other responsible adults related to the children into hiding rather than encouraging them to come forward as potential sponsors.

The NY Times Editorial Board followed up the reporters’ news story: “(T)he crisis that has led federal immigration authorities to pull nearly 2,000 unaccompanied children (so far) out of shelters around the country in the dead of night and bus them to a ‘tent city’ in the desert town of Tornillo, Tex., is almost entirely of the American government’s own making… Immigrant advocates argue that the true purpose of the new sponsor requirements is to find, arrest and deport as many undocumented immigrants as possible. Given that dozens of these immigrants have already been arrested, and given that the vast majority of them have committed no other crimes, it’s not hard to agree. Meanwhile, thousands of children languish.”

The NY Times‘ Dickerson adds that avoiding licensed and well-regulated child care and educational services may be another motivation for the federal government to move young people to the Texas tent city: “The roughly 100 shelters that have, until now, been the main location for housing detained migrant children are licensed and monitored by state child welfare authorities, who impose requirements on safety and education as well as staff hiring and training. The tent city in Tornillo, on the other hand, is unregulated, except for guidelines created by the Department of Health and Human Services.  For example, schooling is not required here, as it is in regular migrant children shelters.”

The denial of schooling for the young people in the Tornillo tent city, however, remains a violation of the U.S. Constitution. The 1982, U.S. Supreme Court decision in Plyler v. Doe established 14th Amendment protection of the right to primary and secondary education for undocumented migrant children. 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.”

The Vulnerable Young People Denied Access to What We Call the American Dream

As he promised during the campaign, President Donald Trump is cracking down on immigration—pledging to deport anyone who is caught without papers and creating chaos and injustice with an outrageous executive order late last week that suspends entry for all refugees for 120 days, entirely bans refugees from Syria and for 90 days bars immigrants from seven Muslim countries—Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen.

But so far, at least, Trump has done nothing about DACA.  DACA, the Deferred Action for Childhood Arrivals program, was established by President Barack Obama’s executive order to protect adolescents and young adults—brought here by their parents when they were small children—from deportation and to allow these young adults to obtain work permits.  The protection established by President Obama under DACA is for two years and is renewable.

These young people call themselves Dreamers, named for a bill introduced in Congress in 2001 by Senator Dick Durbin, a bill that has never been passed, the Development, Relief, and Education for Alien Minors Bill—the DREAM Act.  President Obama established DACA because Congress had never acted on the broader bill that would have expanded access to higher education by guaranteeing in-state tuition and access to federal financial aid and to scholarships at state colleges and universities.

In Sunday’s NY Times Magazine, Dale Russakoff published an extraordinary profile of one Dreamer, a young woman named Indira, who left Mexico with her parents when she was six years old.  Her parents, both medical doctors in Mexico but working in menial jobs in the U.S. ever since, brought their family to the United States on an immigrant visa and never returned to a Mexican city where relatives had been killed by violence.  Indira is now enrolled in college, thanks to a privately funded foundation that offers scholarships to Dreamers.

Let me explain here that I have really never been able to follow the thinking of those who have opposed the DREAM Act. I guess they believe that educational opportunity and the American Dream are a zero sum game?  That if your kid gets a good education, she might edge mine out of entrance to a particular college or out of a job later in life?  That children are responsible for the so called sins of their fathers?  How could any caring adult possibly want children to have to grow up living in the shadows, and if the children and their families manage to get along, how could anyone want the children to be denied the right to in-state college tuition or the right to qualify for a Pell Grant or college loan?  Opposing the Dream Act has always seemed to me a particularly punitive and cruel definition of fairness.

Thanks to the U.S. Supreme Court, undocumented immigrant children do have a right to a K-12 education, despite their problems accessing colleges and universities. Russakoff explains that in their 1982 decision in the case of Plyler v. Doe, the justices on the U.S. Supreme Court guaranteed the right for undocumented immigrant children to a K-12 public education.  Russakoff quotes the majority decision written by Justice William Brennan: “Already disadvantaged as a result of poverty, lack of English-speaking ability and undeniable racial prejudices, these children, without an education, will become permanently locked into the lowest socioeconomic class.”  In a concurring opinion, Justice Lewis Powell wrote: “The classification at issue deprives a group of children of the opportunity for education afforded all other children simply because they have been assigned a legal status due to a violation of law by their parents.”

Russakoff profiles Indira, whose family resides in the state of Georgia: “She was determined to go to college and medical school and fulfill her parents’ interrupted dream. In her junior year (of high school), Indira began researching college options… She was distressed to discover that Georgia barred undocumented immigrants from attending its top public universities and charged them out-of-state tuition at all others—triple the rate for citizen residents. She then turned to researching financial aid and learned that Congress barred her from accessing federal Pell grants, loans, scholarships, and work-study jobs—the most common forms of assistance for low-income students… At a college fair attended by representatives of numerous Georgia colleges, she asked admissions officers what kind of help was available for undocumented students. No one had any to offer her. She switched her focus to private colleges and was admitted to Atlanta’s Agnes Scott, which she says awarded her $20,000 annually in financial aid, less than half of what she needed.”

Her help came from TheDream.US, a private foundation that offers scholarships to Dreamers at Delaware State University. Russakoff follows Indira to college and profiles as well several of her classmate Dreamers who managed to discover this program, several of them learning about the help it could offer only after a number of years of manual work after high school graduation.  Russakoff estimates there are 2.1 million Dreamers, “who have grown up as Americans in almost every way except for their passports.”  Educated in public schools, these children are likely not able to remember much about life in their nations of origin. They may not even speak any language other than English.

President Trump’s threat to eliminate DACA during the campaign has terrified Dreamers all over the country.  For the students in Delaware, there was some reassurance: “A lifeline of sorts arrived the week after the election, when the students received letters from TheDream.US, Governor (Jack) Markel and the president of D.S.U., pledging to stand behind their scholarships no matter what became of DACA.”  Donald Graham, founder of TheDream.US, “lined up attorneys to represent them if anyone challenged their right to be in school.”

So far, President Donald Trump has taken no action to eliminate DACA.  Please read Russakoff’s profile of Indira and her Delaware State University Dreamer classmates to become more informed about the extraordinary challenges faced by the young people who are labeled “illegal” despite their exemplary academic records and their efforts to pursue what we call, perhaps erroneously, the American Dream.