by Tom Shuford

Plyler v. Doe is a little-known Supreme Court decision that is transforming schools and communities across the nation. The Court held, in a 5-to-4 vote, that children illegally in the United States have the same right to a free public education as American citizens.

The case originated in Texas in 1977. Lawyers for a group of children illegally in the state filed a class-action lawsuit seeking a free public education. Lawyers for Texas school districts argued that an influx of illegal students would ruin the public schools. A district court ruled in the plaintiffs’ favor. The ruling was upheld on appeal, first to the 5th circuit and then to the Supreme Court in 1982.

What are the practical effects of Plyler ? According to the Houston Chronicle :

Studies put Texas’ cost of educating undocumented students as high as $1.65 billion a year, an expense that easily outpaces other costs associated with illegal immigration, such as medical and criminal justice services . . .

* * *

The cost of illegal immigration to Texas’ public schools jumps to about $4 billion a year, according to one study, when the immigrants’ children - some of whom were born in the United States and are, therefore, citizens - are counted.

In return, their families contribute nearly $1 billion to the state sales and property tax coffers, according to a study by Jack Martin, special projects director for the Federation for American Immigration Reform, a group that supports tighter restrictions on immigration.

The impact on the Houston Independent School District?

In addition to requiring extra books, teachers and classroom space, HISD had to ramp up bilingual instruction, increase social services and develop programs to help countless immigrants catch up academically.

* * *

The number of Hispanic students in HISD has more than doubled since the 1982 ruling. The district now spends $158 million a year on bilingual and English as a Second Language programs and hires 2,391 teachers - about 20 percent of the teaching staff — for those classes, according to state records . (“1982 Ruling a Catalyst in Immigration Debate,” Houston Chronicle , May 21, 2006)

So it goes nationwide in varying degrees.

Plyler’s impact will intensify or lessen in coming years depending on what Congress and the President do about illegal immigration. The House and Senate are preparing to conference on separate legislation that each passed that must be “reconciled” before a final version is submitted to both bodies for a vote, and then sent to the President for his signature.

Reconciliation is a near impossibility. The House and Senate took starkly different approaches towards illegal immigration. The House took an enforcement-first approach: let’s secure the borders and then talk about “guest” worker programs and what to do with the millions in the country illegally.

The Senate and the President insist on a “comprehensive,” do-everything-at-once approach: amnesty for illegal aliens, dramatically increased legal immigration, and gestures towards enforcement. (A spoonful of enforcement helps the amnesty go down.)

“Comprehensive” is code for amnesty. No senator wants an up or down vote on amnesty (“earned legalization” is the preferred euphemism). For political cover, therefore, amnesty must be coupled with promises of enforcement — as in 1986.

The senators would not be dancing around reality were it not for the one-judge-margin Plyler vs. Doe decision of 1982.

Cartoon-style here is the issue:

Illegal alien: Does the Fourteenth Amendment guarantee my child a free public education?

Supreme Court: Yes.

How did the Supreme Court reach that decision? Below is the pertinent language from the Fourteenth Amendment:

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

The majority opinion was written by Justice William J. Brennan, whose impact on the Court is summarized by Wikipedia:

An outspoken liberal throughout his career, he played a leading role in the Warren Court’s dramatic expansion of individual rights.

Plyler vs. Doe is just such a “dramatic expansion” of rights, in this case the rights of foreign nationals illegally in the United States to partake of benefits intended for American citizens. Brennan’s application of the Equal Protection Clause was not contemplated by the framers of the Fourteen Amendment, which was proposed in 1866 by Congress to secure the rights of newly freed slaves, that is, American citizens.

While providing tax-payer-funded schooling to children illegally present in the United States may be a compassionate act by a community or state — should not the decision to provide such services rest with citizens and their elected representatives?

It is the anti-democratic impact of Plyler, its erosion of the precious rights of American citizens, that is most offensive. A notable prophet of such judicial overreaching would not have been surprised:

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine . . . The Constitution has erected no such single tribunal . . . knowing that to whatever hands confided, with corruptions of time and party, its members would become despots. (Thomas Jefferson, Sept 28, 1820 letter to William Jarvis)

One year later Jefferson wrote:

It has long, however, been my opinion, and I have never shrunk from its expression . . . that the germ of dissolution of our federal government is in the constitution of the federal Judiciary . . . working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped. (August 18, 1821 letter to Charles Hammond)

British cultural critic Melanie Phillips tried recently to explain to an American audience how Britain had become a haven for terrorists bent on the destruction of Western civilization. (See Phillips’ Londonistan.) Western countries, she says, eventually make a fetish of “human rights.” (Think Justice Brennan’s “dramatic expansion.”) They extend “rights” in all directions, forcing the majority to always give way to the minority, an illegal minority in the U. S.

and in Britain a malevolent minority.

Thus do Western countries make themselves so open, so multicultural they can no longer defend national interests, culture, borders, sovereignty.

They implode.

Plyler is a milestone on the road to pathological openness .

* * *

Notes on Understanding Plyler : The Constitutional Issues

The essay above is by a layman who doesn’t like Plyler and fears, more than most, the immense power of fallible and unaccountable human beings sitting on the Supreme Court. Fortunately, for those who would dig a deeper into Plyler, there are small doses of expert analysis which can be readily understood:

*The dissenting opinion of Chief Justice Warren Burger, in which he is joined by Justice Byron White, Justice William Rehnquist, and Justice Sandra Day O’Connor (712 words)

*a summary of Plyler by the legal team at the Federation for American Immigration Reform: “Alien Use of Public Education and Health Services” (425 words)

*an essay ranked #3 on Google for key word: “Plyler”— just below presentations by FindLaw and U. S. Supreme Court Multimedia, “Plyler v. Doe: The Solution” by Howard Sutherland (2200 words)

1) CHIEF JUSTICE BURGER, with whom JUSTICE WHITE, JUSTICE REHNQUIST, and JUSTICE O’CONNOR join, dissenting (excerpts):

Were it our business to set the Nation’s social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children — including illegal aliens — of an elementary education . . . . However, the Constitution does not constitute us as “Platonic Guardians.” nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, “wisdom,” or “common sense” . . . . The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of “effective leadership” in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders . . . . The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide “effective leadership” simply because the political branches of government fail to do so . . . . The Court’s holding today manifests the justly criticized judicial tendency to attempt speedy and wholesale formulation of “remedies” for the failures — or simply the laggard pace — of the political processes of our system of government. The Court employs, and in my view abuses, the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver. That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others . . . . In a sense, the Court’s opinion rests on such a unique confluence of theories and rationales that it will likely stand for little beyond the results in these particular cases. Yet the extent to which the Court departs from principled constitutional adjudication is nonetheless disturbing . . . . Without laboring what will undoubtedly seem obvious to many, it simply is not “irrational” for a state to conclude that it does not have the same responsibility to provide benefits for persons whose very presence in the state and this country is illegal as it does to provide for persons lawfully present. By definition, illegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expense of those who are lawfully in the state . . . . The fact . . . that there are sound policy arguments against the Texas Legislature’s choice does not render that choice an unconstitutional one . . . . The Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem . . . . Moreover, when this Court rushes in to remedy what it perceives to be the failings of the political processes, it deprives those processes of an opportunity to function. When the political institutions are not forced to exercise constitutionally allocated powers and responsibilities, those powers, like muscles not used, tend to atrophy. Today’s cases, I regret to say, present yet another example of unwarranted judicial action which in the long run tends to contribute to the weakening of our political processes . . . . The major flaw in the courts reasoning, of course, is that illegal aliens are not, by definition, citizens of the United States. No matter how you parse it, the equal protection clause just does not apply to people who are in this county illegally. They aren’t Americans.

Full text of 19,000-word decision.

2) “Alien Use of Public Education and Health Services” by the Federation for Immigration Reform (excerpts from FAIR’s analysis of Plyler v. Doe ):

In a 1982 decision in the case of Plyler v. Doe, a 5-4 Supreme Court majority held that, although education is not a fundamental right, the undocumented status of illegal alien children does not — by itself — establish a sufficient rational basis to deny them benefits accorded other children, considering the “costs to the Nation” and to “innocent children” by a denial of access to public education.

...This section reviews the conditions under which the Supreme Court indicated a future review of its decision could be made. (The case has been recognized as an anomaly in constitutional jurisprudence and has subsequently never been invoked to invalidate a state statute.)

* *

The Supreme Court majority noted that illegal aliens are not a “suspect class” for equal protection scrutiny purposes because their presence in the country in violation of federal law was not a “constitutional irrelevancy” and that public education itself was not a fundamental right protected by the Constitution . . . The majority agreed that in principle a state could withhold its “beneficence” from persons whose very presence in the U. S. was a product of their own unlawful conduct, including deportation. However, the majority opinion also held that this standard did not apply “with the same force” to the “innocent” children of illegal aliens, to the extent that they were unable to affect either parents’ conduct or their own status.

According to the Court, five of the justices were “unable to find in the [existing] congressional immigration scheme any statement of policy” that would “overcome the presumption that denial of education to innocent children is not a rational response to legitimate state concerns.” But that situation could change, the justices wrote, if Congress were to exercise its legislative power to change “the State’s prerogatives to afford differential treatment to a particular class of aliens.”

The Justices did not spell out what changes the Congress would have to make to meet that standard. The Court emphasized the probability that an alien child would not ever be deported under the current scheme as an important factor, since it would be “most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain.”

On this basis, a clear commitment by Congress to a program of interior enforcement should be sufficient to empower State governments to rescue public education programs, particularly in areas where it could also be clearly shown that the size of the illegal population was the proximate cause of inferior public education available to American citizens within the same jurisdiction.

3) “Plyler v. Doe: The Solution”  by Howard Sutherland: in-depth analysis, highly recommended..

Tom Shuford [email protected] is a retired teacher living in Lenoir, North Carolina