Plyler v. Doe and the Bill States Pay for a Decision Congress Never Made

Here is a question for your next civics quiz. Who decides whether a Texas school district must enroll a child whose parents are in the country unlawfully? If you said the Texas legislature, you have the right answer for how a republic is supposed to work. If you said five justices in Washington, you have the right answer for how it worked in 1982.

That gap, between who should decide and who did, is the whole story of Plyler v. Doe. It is a hard case, and a lot of conservatives get it wrong in one of two directions. Some want to cheer the result because they dislike the idea of children shut out of school. Others want to attack the result because they dislike illegal immigration. I want to separate three questions that the case smashes together: whether children should be educated, whether the Constitution requires it, and who ought to have made the call. The answers are not the same.

The Facts From Tyler, Texas

In 1975 the Texas legislature amended its education law to withhold state funds from school districts for the education of children who were not "legally admitted" into the United States, and it authorized districts to deny those children enrollment. The change was a response to a rise in the number of such children and to the cost of schooling them.

The Tyler Independent School District, in the east Texas town of Tyler, put the law into practice. It required children who could not prove lawful status to pay tuition to attend. Families who could not pay kept their children home. A group of Mexican-origin children sued, as John and Jane Doe and others in a class action, and a federal district court judge, William Wayne Justice, ruled for them in 1978. The Fifth Circuit affirmed in 1980. Texas appealed to the Supreme Court, which decided the case together with a companion case, Texas v. Certain Named and Unnamed Undocumented Alien Children.

The question was whether Texas could deny these children a free public education without violating the Fourteenth Amendment's Equal Protection Clause. The text of that clause says no state shall "deny to any person within its jurisdiction the equal protection of the laws."

The Holding

The Court decided the case on June 15, 1982, by a vote of five to four. Justice William Brennan wrote the opinion, joined by Justices Marshall, Blackmun, Powell and Stevens. Chief Justice Warren Burger dissented, joined by Justices White, Rehnquist and O'Connor.

The Court held that the Texas law violated the Equal Protection Clause. Here is the reasoning in four steps.

One. The clause protects "any person within its jurisdiction," and the Court said that includes persons whose presence in the country is unlawful. Undocumented children are persons, and they are physically within Texas, subject to its laws. The clause does not say "any citizen."

Two. The Court agreed that undocumented status is not a "suspect classification" like race, and that education is not a "fundamental right" under the Constitution. That was settled by an earlier case, San Antonio Independent School District v. Rodriguez (1973). So the usual route to the strictest scrutiny was closed.

Three. But Brennan said this case was special. The law punished children for a status they did not choose, because their parents had brought them, and it risked creating a permanent underclass of people who would live here and be denied the education that fits them to take part in society. He compared the law to the old penalties on children born out of wedlock, which the Court had struck down because they visited the parents' faults on the children. Education, he wrote, has a unique role in preparing citizens, so the law had to meet a heightened level of scrutiny: the discrimination could hardly be considered rational unless it furthered some substantial goal of the State.

Four. Texas failed that test. The state offered several interests, including protecting the fiscal integrity of the state's schools, discouraging illegal immigration and the claim that undocumented children were harder to educate. Brennan thought the money argument was weak, because the record held no evidence that these children imposed a significant burden on the state's economy. He called charging tuition a ludicrously ineffectual way to stem illegal immigration, and he found that the record did not support the claim that excluding them would improve the quality of education.

The Chief Justice's Dissent

Burger's dissent is the part to read slowly, because it is the strongest conservative statement of the case.

He began by agreeing with the policy in a sense. If it were his business to set the nation's social policy, he wrote, he would agree without hesitation that it is senseless for an enlightened society to deny any child an education. He did not defend the wisdom of the Texas law.

His argument was about who decides. The Constitution, he said, does not make the Court a body of philosopher-kings entitled to override the legislature whenever it thinks a law is unwise. The Equal Protection Clause asks whether a state has a rational basis for a classification, and the Court had no authority to invent a heightened level of scrutiny for a class of people it did not think deserved the strictest review. He pointed out that the majority had conceded the group was not a suspect class and that education was not a fundamental right, and then applied heightened scrutiny anyway, which looked like judicial policymaking.

He also said the question of what to do about illegal immigration was a national one, to be handled by Congress and the political branches. The presence of these children was the result of failures to enforce the immigration laws, and the courts had no business curing that failure by imposing costs on the states.

The Strongest Case for the Majority

Fairness requires me to state the majority's best argument as its defenders would. Here it is.

One. The text says "any person," and the drafters of the Fourteenth Amendment used that word where they used "citizens" elsewhere in the same section. The contrast is on the page, and it was written by men who remembered laws that singled out disfavored groups.

Two. A child who is brought across the border at age two is not a lawbreaker in any moral sense, and the law does not usually punish children for the acts of their parents.

Three. A nation that educates most of its children and leaves a group of permanent residents without schooling builds a class of people with no stake in the common life. That is bad for them and for everyone around them.

Four. Texas's interest in discouraging illegal immigration through the classroom was thin, since a family's decision to cross the border depends on jobs, not schools.

I find the second and third points of real force, as policy. A free and orderly society is better off if the children who live in it can read. But policy is one question and constitutional law is another.

The Rebuttal

Here is where I think the majority goes wrong, point by point.

First, the majority's own premises do not lead to its conclusion. If undocumented status is not a suspect class and education is not a fundamental right, then the ordinary rule is rational-basis review, which Texas could meet. The Court got to a different result by creating a special category for these children out of sympathy, and then calling it equal protection. Justice Powell, who joined the majority, wrote a concurrence that tried to tie the rule to the particular combination of factors, a child's innocence, the importance of education and the permanence of the underclass. That is a policy judgment dressed in legal language.

Second, the line the case draws is unprincipled. If education is so important that denying it to children requires a heightened test, why not health care, housing or nutrition? The majority said education was special but did not say where the limit lay. A rule without a limit is a rule that courts can extend whenever they wish.

Third, the decision removed a policy option that the political branches might have exercised. The Constitution gives Congress the power over immigration and naturalization, and a Congress concerned about the magnet effect of public benefits could have legislated on the question. It could have conditioned federal funds, set uniform rules or addressed the problem at the border. Instead the decision locked the answer into constitutional law, where it can be changed only by a new case or an amendment. This is the objection that separation-of-powers conservatives raise, and it is sound. On a related point about who decides, see INS v. Chadha Began as One Man's Deportation and Ended the Legislative Veto.

Fourth, the costs fell on the states while the decision belonged to Washington. Public schools are funded mostly by state and local taxes. A national rule about who must be enrolled imposes costs on districts that had no vote in making the rule and no way to recover the money. The federal government sets immigration policy and has the power to enforce it at the border, and when it fails to do so, the district in Tyler pays for the consequences. That is the bill in the title of this post. It is a case of a national failure paid for locally.

What a Conservative Can Say

Here is a position that I think holds together.

We can say that educating the children who are in our schools is wise, humane and in our own interest. A child who learns to read and work is a future taxpayer and neighbor, and every serious conservative thinker about the family and civil society values the school as a place where habits of citizenship are formed. We do not need a decree to tell us that.

We can also say that the Constitution did not require it, and that Plyler was wrongly reasoned. A republic should make policy through its legislatures. If Texas wanted to enroll the children, it could have. If it wanted to fund the schooling differently or ask Washington for help, it could have asked. And if Congress wanted to attach conditions to the benefits of living here, the ones that act as a magnet for illegal entry, it could have written them.

The two positions fit together once you see that a good outcome reached by the wrong method is still a bad precedent. The method, five justices deciding a question that belonged to elected officials, is a problem because the next five justices may decide the opposite way on a question you care about.

Where the Law Stands

Plyler remains the law. Some state lawmakers have proposed bills over the decades designed to challenge it, but the decision has stood for more than forty years, and school districts organize their enrollment policies around it. Any serious change would require the Court to overrule the case or Congress to act under its own powers.

If you want to see what the decision costs, ask your own school board what it spends, and ask your own member of Congress why the immigration laws that created the problem go unenforced. You will learn more from those two conversations than from any commentary. On the numbers that bear on this, see What the National Academies Found on Immigration's Fiscal Costs. On the conservative case for enforcing the rules at the workplace, which reaches the incentive behind the issue, see The Employer Who Hires Off the Books Is Breaking the Law, Not Helping.

The case in brief

1. In 1982 the Supreme Court held, five to four, that Texas could not deny free public schooling to children unlawfully present, applying a heightened equal-protection test it had said did not normally apply.
2. The Fourteenth Amendment protects "any person within its jurisdiction," which supports the Court's starting point, but the majority's own premises pointed to ordinary rational-basis review.
3. Chief Justice Burger's dissent agreed the Texas policy was unwise and argued that the question belonged to legislatures, and that the Court had invented a new level of scrutiny to reach a result.
4. The decision shifted costs to states and districts while leaving immigration enforcement with the federal government.
5. Conservatives can hold that educating these children is wise and also that the Constitution did not command it, and that the rule should have come from elected officials.

What you can do: look up how much your own school district spends per pupil on the district's website, and ask a school board member or your member of Congress who they think should set the rule on enrolling children of unlawfully present parents.