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 News‘ Robert 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.