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“The Schoolhouse Gate”: Public Schools, Unauthorized Immigrants, and the Overlooked Import of Plyler v. Doe

The 1982 decision prevented a Texas measure from becoming dominant, thus ensuring access to school for undocumented minors throughout the nation.

This post is the fourth in a series of edited excerpts from my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." In Plyler v. Doe, the Supreme Court invalidated a Texas law that permitted schools to exclude undocumented minors. Prominent law professors have dismissed the decision as insignificant, but closer examination reveals Plyler v. Doe rests among the most momentous cases in the Supreme Court's entire history.

In 1974, Humberto Alvarez departed Mexico City and headed north in search of a better way of life for his family. After crossing the U.S. border without authorization, Alvarez settled in Tyler, Texas, where he secured work at a local meatpacking plant and sent for his family. But one year after his children arrived, Tyler education officials declared that unauthorized immigrants had effectively been banished from the public schools. Relying upon a statewide law that refused to allocate funds to localities for the education of noncitizens and even permitted their exclusion from public schools, Tyler announced that unauthorized immigrants would be required to pay one thousand dollars in tuition annually for each child who attended school.

Tyler's school superintendent, James Plyler, contended that educating undocumented minors financially strained the district. But this explanation seems difficult to credit as unauthorized immigrants accounted for only twenty-four of the sixteen thousand students in the district. After Alvarez witnessed his children stay home from school day after day at the beginning of the 1977 school year, he joined three other families in a lawsuit contesting the constitutionality of Texas's exclusionary law. The federal trial court in Tyler ordered the schools to readmit the excluded students.

In 1982, the Supreme Court in Plyler v. Doe endorsed that assessment by deeming the measure unconstitutional in a 5–4 decision. Justice William Brennan's opinion rested on three key justifications. First, Brennan emphasized that the Texas law penalized minors, repeatedly referred to as "innocent children," not because of their own conduct but because of their parents' actions. Second, Brennan contended that the measure's absolute exclusion of unauthorized immigrants from school severely burdened this vulnerable group. The complete absence of education would "impose[ ] a lifetime hardship" on young unauthorized immigrants, harming not only their own economic prospects but also their ability to contribute to the nation's civic life. Third, Brennan suggested that upholding Texas's law would "raise the specter of a permanent caste of undocumented resident aliens" because it curtailed access to American public schools—traditionally, an invaluable aid in sociocultural assimilation. "We cannot ignore the significant costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests," Brennan reasoned.

Chief Justice Burger's dissenting opinion portrayed the Texas statute as a valid, if unwise exercise of constitutional authority. Burger left no doubt that he found the law imprudent from a policy standpoint, but he nonetheless insisted it violated no constitutional provision. "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," he contended. "[W]hen 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 Court issued Plyler v. Doe, no state in the nation other than Texas had enacted legislation eliminating unauthorized immigrants' access to education. This legislative background has, in recent years, motivated some law professors to dismiss Plyler v. Doe as an insignificant opinion that invalidated merely an "outlier" statute. According to these scholars, it would be sorely mistaken to understand Plyler v. Doe as providing a meaningful contribution to America's constitutional legacy of protecting minority rights because the opinion simply ratified the prevailing view across the country.

But such dismissive assessments of Plyler v. Doe miss the mark. Although initially rejecting a policy located only in Texas, the decision has enjoyed broad applicability throughout the nation, and has served as a vital bulwark against widespread efforts to deprive unauthorized immigrants of access to education. Plyler v. Doe's guarantee that the schoolhouse doors cannot be closed to one of society's most marginalized, vilified groups has allowed innumerable children to expand their minds and their horizons.

Examining Plyler v. Doe in context renders its major contributions to the American legal landscape unmistakable. Justice Brennan's opinion expressly noted that unauthorized immigrants "now live within various States" and framed the decision as holding nationwide implications. In addition, that four Supreme Court justices voted to uphold the Texas statute suggests it was hardly viewed as incomprehensible from a national perspective. During the Court's internal deliberations, moreover, Justice William Rehnquist referred to unauthorized immigrants as "wetbacks." That Rehnquist would use such incendiary, offensive language vividly attests to the unvarnished animus directed toward unauthorized immigrants, even in the most rarefied elements of American society.

Furthermore, Texas's exclusionary measure was perceived as neither trivial nor eccentric. The civil rights community viewed Plyler v. Doe as momentous because it feared that a decision upholding the Texas measure would invite additional states to adopt analogous statutes. As it turned out, Texas was far from the last jurisdiction seeking to ban unauthorized immigrants from school. Voters in California during the 1990s and legislators in Alabama two decades later enacted their own versions of these initiatives, as supporters of both measures hoped to spark a reassessment of Plyler v. Doe. In both instances, lower federal courts swiftly applied the precedent to reject those measures. In the absence of a Supreme Court precedent on the question, though, it seems virtually guaranteed that many additional states would have adopted similar measures.

Civil rights lawyers have utilized Plyler v. Doe around the nation to prevent school districts from adopting measures that demand information from enrolling students that unauthorized immigrants cannot provide. In recent years, civil rights groups have motivated education officials to warn school districts against requiring information from enrolling students that would force unauthorized immigrants to disclose their immigration status. The Department of Justice, under President Obama, joined the chorus condemning these enrollment practices by invoking Plyler v. Doe to inform school administrators that the practices violated federal law.

Plyler v. Doe's protection of unauthorized immigrants' access to public schools has endured for more than three decades. The opinion's durability is remarkable not least because it challenges an ascendant school of thought within legal academia, suggesting that the Supreme Court affords protection to particular groups only after a social movement has first succeeded in transforming cultural attitudes within the larger nation. That narrative surely captures many important constitutional developments, but it is virtually impossible to construe Plyler v. Doe as the culmination of a mass social movement that altered American attitudes toward unauthorized immigration. No such movement existed in the early 1980s. Scholars interested in exploring the judicial capacity to vindicate constitutional rights—even in the absence of widespread popular support—would be well advised to examine Plyler v. Doe's successful effort to retain access to education for all minors, including unauthorized immigrants.

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  • David Bernstein||

    The only problem with Plyer is that Burger's dissent is more persuasive than the majority. A better rationale for the majority would have been that Texas is de facto trying to set its own immigration policy, and enforcement of immigration law is a sole federal authority. The Court eventually adopted this rationale in U.S. v. Arizona.

  • Brett Bellmore||

    The problem with U.S. v. Arizona, of course, was that it was a supremacy clause decision, and the supremacy clause apples to laws adopted pursuant to the Constitution, and nothing Arizona was doing was contrary to a law adopted pursuant to the Constitution.

    The federal government's complaint, in fact, was that Arizona was doing something contrary to the executive branch's policy of not enforcing the law.

    Honestly, it should have been Arizona citing the supremacy clause in a lawsuit against the federal government, not the other way around.

  • David Bernstein||

    I'm not saying that U.S. v. Arizona was right, but it's more persuasive than the majority's equal protection ruling in Plyer v. Doe. Public education is not a constitutional right, and illegal residents are not a suspect class. Therefore, rational basis should apply, and Texas's rationale was not irrational.

  • ||

    Of course. Plyler was an ends-oriented decision.

  • bernard11||

    Does equal protection apply only to Constitutional rights?

  • Krayt||

    The federal government had no problem charging you with tax evasion because you didn't buy marijuana stamps for your illegal marijuana.

    So in other contexts they have no problem addressing laws to people engaged in illegal activity.

  • bernard11||

    The federal government had no problem charging you with tax evasion because you didn't buy marijuana stamps for your illegal marijuana.

    Not me, officer. No sir.

    So in other contexts they have no problem addressing laws to people engaged in illegal activity.

    But there are prescribed penalties for illegal activity. Texas doesn't get to make stuff up.

    Suppose an unauthorized (just to annoy Brett) immigrant gets beat up. Can Texas refuse to arrest the assailant?

  • Brett Bellmore||

    No. Even illegal immigrants are people, entitled to equal protection. Which was specifically directed to the problem of states deciding not to punish crimes committed against particular people or groups.

  • Dilan Esper||

    That argument doesn't work for Plyer v. Doe. There is no federal law requiring illegal immigrants to be excluded from public school.

    So the Supremacy Clause issue is simply that only the federal government gets to decide policies with respect to illegal immigrants, and it hasn't authorized throwing them out of school.

  • nonzenze||

    Brett, if you don't believe that the doctrine of field preemption is correct, just come out and say so. You don't have to dance around the issue like this.

  • Brett Bellmore||

    I thought I was clear enough: The President's failure to "take care " is more of a supremacy clause violation than a state helping enforce a law the President doesn't like.

    It's LAW that the Constitution makes supreme, not policy contrary to it.

  • Brett Bellmore||

    "After crossing the U.S. border without authorization"

    The conventional term for this is illegally.

  • Careless||

    And "without authorization" isn't even accurate in about half the cases, as they're visa frauds, so they had authorization

  • Sarcastr0||

    Interesting semantic/cultural question here.
    Illegal is not the conventional term for everyone, and you being a stick in the mud about it won't change that.

    I say illegal here because that's how people here roll, but I say undocumented elsewhere. I don't rail against improper convention in a misguided attempt to be the cultural language police. You know what they were talking about, and so mission accomplished.

  • Careless||

    conventional vs factual.

  • Sarcastr0||

    It's wrong!! 'Gay' factually just means happy, guys! Guys? Where are you going?!

  • Careless||

    "Undocumented" in this case means "quite well documented, otherwise we couldn't possibly be having this lawsuit"

    A lot different from a divergent meaning of "gay"

  • Sarcastr0||

    Everyone knows what an undocumented person is referring to.

  • Brett Bellmore||

    That's a common attribute of euphemisms. It doesn't turn euphemisms into accurate language.

  • Sarcastr0||

    ...did you just declare war on euphemisms?

  • Rossami||

    I have to agree that Burger had the much stronger legal position. The Texas law was bad policy and Brennan had the far stronger moral case but that was the Legislature's job to fix. The Supreme Court had no business stepping in.

  • Chris_Virginia||

    Overall, love the columns. I have relatives in civics class right now so this topic is particularly of interest to me and how I might involve them in the contemplation of these issues.

    However, I do take issue with how the authors state that "During the Court's internal deliberations, moreover, Justice William Rehnquist referred to unauthorized immigrants as "wetbacks." That Rehnquist would use such incendiary, offensive language vividly attests to the unvarnished animus directed toward unauthorized immigrants, even in the most rarefied elements of American society."

    I disagree that the use of "wetbacks", especially in 1982, is automatically "incendiary, offensive language"

  • John Rohan||

    "Chief Justice Burger's dissenting opinion portrayed the Texas statute as a valid, if unwise exercise of constitutional authority. Burger left no doubt that he found the law imprudent from a policy standpoint, but he nonetheless insisted it violated no constitutional provision"

    Which makes sense. Unfortunately, too many cases are decided by sentiment rather than the law. How could it possibly be unconstitutional to demand tuition from students who aren't legally in the country?

    But the decision was made, and unless it's overturned, we have to live with it. But unfortunately, that flawed decision has been twisted in ways that weren't intended. Basically Plyler v Doe said that we can deport illegal immigrants, but as long as they are here, we have to educate them. That's not perfect, but at least it makes some sense. Now the ACLU and others have twisted to to mean: "we have to aid and abet illegal immigrants as much as possible as long as they are students"

  • Krayt||

    Just today the ACLU of Michigan announced they sent a letter to a Walmart in a squeedunk town that they needed to stop selling "Redskin" items (booster items for the local high school team.)

    They admitted there was no legal way to force them, but in the modern ACLU, it is the censorship thoughts that count.

  • John Rohan||

    The controversy over the Washington Redskins basically disappeared overnight when an ESPN poll found that over 90% of native Americans supported the team name. I guess the ACLU is looking for smaller "wins" on the margins.

  • nonzenze||

    So if the letter accurately said they can't force them, what's the problem here? And can you link the actual letter so we can read the original source?

  • bernard11||

    How is a request from a private organization censorship?

    If I write my local newspaper suggesting that columnist X is an idiot and I think they should stop publishing the column, am I censoring X?

  • Brett Bellmore||

    It's the difference between, "We'd like you to stop selling "Redskin" items, and "You need to stop selling "Redskin" items. Here's this law we're going to claim you're violating. We're not saying we will initiate legal action against you if you don't comply, but do you want to take the chance?"

    Here's the letter they sent. It isn't a request, it's a threat.

  • Bob from Ohio||

    You get more of what you encourage and less of what you discourage.

  • Dilan Esper||

    Want to know why liberals think conservatives are heartless, this comment demonstrates it.

    These are LITTLE CHILDREN, Bob. They aren't your means to a policy end. How many kids are you willing to ruin just because you want to stop people from crossing a border?

  • John Rohan||

    It's "ruining" kids if they live in countries other than the United States?

  • MatthewSlyfield||

    I't ruining kids to deny kids who are in the US an education because of something their parents did.

  • Bob from Ohio||

    Boo hoo Dilan.

    The parents can simply stay where they were born. You realize that many people live normal lives in for example, Mexico.

    If you want to pay voluntarily for their education, go ahead.

  • Dilan Esper||

    "It's so simple. All they have to do is give me all the money in the bank and the tellers get to live."

    You are THREATENING LITTLE CHILDREN Bob. All to win a policy victory. This isn't "boo hoo" for the kids who get thrown out of school while you love comfortably.

  • Rossami||

    Want to know why conservatives think liberals are brainless, this comment demonstrates it.

    This case was about much more than just little children, Dilan. This is about legal precedents and the balance of powers between the intentionally-separated branches of our government. How many principles are you going to sacrifice before you realize that you have none left?

  • Sarcastr0||

    Coldly hiding behind 'this is about legal precedents' doesn't have a good history.

    Pure empathy makes for bad law. So, too, law without empathy is nothing to aspire to.

  • Bob from Ohio||

    "Pure empathy makes for bad law."

    Agreed, Plyler v. Doe is bad law.

  • Sarcastr0||

    Yeah, Bob, everything that doesn't persuade you is devoid of any reasonable legal rationale.

  • Bob from Ohio||

    This:

    "First, Brennan emphasized that the Texas law penalized minors, repeatedly referred to as "innocent children," not because of their own conduct but because of their parents' actions. Second, Brennan contended that the measure's absolute exclusion of unauthorized immigrants from school severely burdened this vulnerable group. The complete absence of education would "impose[ ] a lifetime hardship" on young unauthorized immigrants, harming not only their own economic prospects but also their ability to contribute to the nation's civic life. Third, Brennan suggested that upholding Texas's law would "raise the specter of a permanent caste of undocumented resident aliens" because it curtailed access to American public schools—traditionally, an invaluable aid in sociocultural assimilation. "We cannot ignore the significant costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests," Brennan reasoned."

    is complete empathy and nothing but empathy.

    Its a policy decision based on "for the children", nothing more, nothing less.

  • Sarcastr0||

    The existence of that paragraph does not mean the entire opinion is nothing but emotion.

    And it isn't; and you know that. And yet you tried with this cherry picking lameness?

  • Dilan Esper||

    Rossami, re-read Bob's comment. It said NOTHING about precedents. It simply said he wants to deter immigration by throwing kids out of school. Even Burger said that was wrong.

  • Rossami||

    Dilan, the entirety of the comment to which you originally replied was "You get more of what you encourage and less of what you discourage." While that says nothing about precendents, it also says nothing about immigration or children.

    You, on the other hand, went full Helen Lovejoy.

  • Dilan Esper||

    That's a highly dishonest reading.

    He is talking about discouraging immigration by throwing kids out of school. And you are defending that position through deflection.

  • Rossami||

    re: your assessment of Bob's intent - you're either projecting or you have a better crystal ball than the rest of us.

    re: your assessment of my intent - you need to get your crystal ball recalibrated because you're dead wrong.

  • ||

    Mestizo Hispanics, with their average IQ of 85, are functionally retarded compared to whites and Asians. They won't be successful in America with or without a taxpayer provided special education.

  • nonzenze||

    Absolutely. And we'd like to encourage the children of immigrants to learn the English language (99.9% by the 3rd generation) and adopt American values. So we should do more of that.

  • ||

    Most mestizos do not adopt American values.

  • WJack||

    The progressives have succeeded in turning most public schools through high school, and somewhat beyond, into institutions where parents who have sufficient money do not send their children.

  • Sarcastr0||

    You keep saying this, but never back it up. It seems like a convenient narrative, so convenient and pat as to be suspicious.

    Do you have stats about economic class and public school use over the decades?

  • WJack||

    Surely a victim of progressive educators is capable of admitting that those parents (who have enough money and with a very few exceptions) do not send their children to public schools.

    Seems to me that the progressives (who have trashed the public school system) ought to have the burden of proving this not be so by supporting a voucher system.

  • phattyboombatty||

    Just wanted to mention that I'm really enjoying reading this series of posts. I'll definitely have to pick up a copy of the book.

  • Eric VonSalzen||

    My first thought in reading the post was, When Alvarez filed the case and admitted in the pleadings that he was in the US illegally, why didn't ICE (or whatever it was called back then) arrest him and initiate deportation proceedings? But then I see that the named plaintiff was "Doe". So Alvarez and the other plaintiffs were allowed to make use of the US legal system to advance their interests while hiding their actual identities. And the federal courts allowed them to do so. This case is one of many examples of the fact that the US doesn't take enforecement of its own immigration laws very seriously. Sure, if we're going to allow a whole lot of people to live in the US who came here in violation of our laws, it makes sense to educate them. On the other hand, if we want to discourage illegal immigration, then we shouldn't be nice to the illegals while they're here. As described in the post, I don't see that Justice Brennan grappled with these conflicting policies.

  • Perseus`||

    That's Brennan at his all too frequent worst. Judges are not supposed to be unelected policy makers imposing their moral and political judgments on the citizenry. More potted plants, please!

  • ReaderY||

    The Pyler v. Doe decision was consistent with the general rule that state rules regarding aliens are subject to strict scrutiny, while federal rules are subject to rational basis. This is a consequence both of the fact there is an Equal Protrction Clause applicable to the states, but no such clause applicable to the Federal Government, and also that immigration and rules for aliens are regarded as part of international relations which are an exclusively Federal 'after.

    This posture, based on very longstanding precedents, suggests that Pylar will likely remain good law under a more conservative court. But it also suggests the federal government may have power to do things that may have been off the radar screen when Pylar was decided. Just as the Federal government has power to federalize welfare benefits and condition federal subsidies on no welfare for illegal aliens or even non-citizens, it may well have similar power to condition educational funds on no admission of illegal aliens. If Congress decides to federalize the matter in this direction - something unlikely in the current Congress - Pylar may become a dead letter.

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