triumphs and challenges on the 30th anniversary of plyler v. doe

7/31/2019 Triumphs and Challenges on the 30th Anniversary of Plyler v. Doe

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Triumphs and Challenges on the 30tAnniversary ofPlyler v. Doe

A Landmark Supreme Court Case on Providing Educationto Immigrant Children Under Threat

Marshall Fitz, Philip E. Wolgin, and Ann Garcia June 2012

www.americanprogress.o


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Triumphs and Challengeson the 30th AnniversaryofPlyler v. DoeA Landmark Supreme Court Case on Providing

Education to Immigrant Children Under Threat

Marshall Fitz, Philip E. Wolgin, and Ann Garcia June 2012


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Contents 1 Introduction and summary

3 A recap of the Plyler v. Doe decision

5 Plyler v. Doe under attack since 1982

11 A nation without Plyler

15 Conclusion

16 About the authors

17 Endnotes


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1 Center or American Progress |Triumphs and Chaenges on the 30th Annive rsary oPlyler v. Doe

Introduction and summary

Tiry years ago he Supreme Cour ruled on a proound quesion in American

lie: wheher saes could bar undocumened children rom receiving public

educaion. On June 15, 1982, in he case oPlyler v. Doe, he Cour sruck down

a exas saue ha permited local school disrics o charge uiion o undocu-

mened sudens. In doing so, i guaraneed ha all children in he Unied Saes

would receive a basic educaion.1

Ta seminal ruling exended he 14h Amendmens guaranee o equal proec-ion o undocumened immigrans, and i prevened a generaion o immigran

children rom being pushed o he margins o sociey. I eecively blocked saes

rom relegaing hese kids o he lowes socioeconomic rung merely because o

heir immigraion saus, and i ensured ha a generaion o children would grow

up as Americans, no as casos. Finally, i proeced he naions own economic

and social sel-ineres by ensuring ha all children have he abiliy o become

educaed, well inegraed, and economically producive.

Tis week isPlylers 30h anniversary and here is much o praise abou he opin-

ion. In paricular, we celebrae he decisions armaion ha he consiuional

values o air and equal reamen supersede a saes desire o marginalize undocu-

mened immigrans. We celebrae is moral conribuion o our naional ideniy

by elevaing he humaniy o hese young people over heir immigraion saus.

And we celebrae is posiive social impac in helping inegrae hese immigran

children and heir amilies ino our schools and communiies.


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Unorunaely, despie he Cours ruling and he concree moral oundaion onwhich i ress,Plylerhas been and remains under atack by immigraion resric-

ioniss. Aer hree decades in which he cours have righully overurned any

atack on undocumened childrens educaion, oday well-unded ani-immigra-

ion groups have hached a plan o encourage he Supreme Cour o revisi and

overurn boh hePlylerruling and oher well-setled legal quesions abou he

limis o a saes power in he immigraion realm.

A any oher ime atackingPlylerwould be a uile exercise because, under a hal-

lowed judicial docrine o precedence known as sare decisis, a Supreme Cour ruling

binds uure rulings in all bu he mos exraordinary cases. Laer his monh he

Cour will announce is decision on he consiuionaliy o Arizonas ani-immi-

gran law, S.B. 1070, and we will ge our rs insigh ino how odays conservaive

Cour will approach sae involvemen in he immigraion arena.2 Bu he conserva-

ive jusices on odays Supreme Cour already appear relaively unconsrained by

preceden and more han willing o revisi rmly esablished caseshe Ciizens

Unied case overurning resricions on poliical money rom businesses and corpo-

raions is bu one exampleleaving he ae oPlylerup in he air.3

Agains his urgen backdrop, we rs briefy revisi he landmarkPlylerrulingand is analyical underpinnings. We hen review he major challenges leveled

agains i and he resh ones on he horizon. Lasly, we consider wha lie would be

like wihouPlylerincluding he devasaing eec on our children and on our

naion as a wholeo underscore he imporance o he curren debae.

Decided 30 years ago on June 15, 1982.

Struck down a Texas law authorizing school districts to charge

tuition to undocumented immigrants. Justice William J. Brennanwrote the 5-4 majority opinion.

Held or the rst time that undocumented immigrants may benet

rom the equal protection clause o the 14th Amendment.

Concluded that undocumented children residing in the Unite

States cannot be denied K-12 education on the basis o their

migration status.

Challenged by states recent eorts to pursue legislation des

to discourage undocumented immigrants public school at-

tendance. The Plylerdecision has been under attack since it w

passed.

Plyler v. Doe at a glance


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A recap of the Plyler v. Doe decision

Te conroversy ha would make is way o he Supreme Cour inPlylerbegan

when exas passed a law ha allowed public school disrics o charge uiion or

unauhorized immigran children. Four amilies (idenied only by he pseud-

onym Doe) led sui agains Superinenden James Plyler o he yler, exas

School Disric, winning a posiive verdic in he disric cour and in he U.S.

Cour o Appeals or he Fih Circui. In 1982 he Supreme Cour agreed o hear

he case, combining i wih a similar case rom Houson.4

Wriing or he Cours 5-4 majoriy, Jusice Brennans opinion inPlylerincorpo-

raed his ypical blend o common sense, moral clariy, and bold reasoning. A is

core Brennan anchored his opinion o he principle ha he Consiuions guaran-

ees o airness and equaliy exend o, as he wroe, anyone, ciizen or sranger,

who is subjec o he laws o a Sae.5

Te Cour held or he rs ime ha he 14h Amendmens equal proecion

clause applied o all people wihin he Unied Saes, including undocumened

immigrans. And i rebued he sae o exass atemp o argue ha undocu-

mened immigrans were no subjec o he saes jurisdicion, and as such were

a class o people no proeced by he Consiuion.

As Brennan eloquenly pu i:

Te Equal Proecion Clause was inended o work nohing less han he aboli-

ion o all case-based and invidious class-based legislaion. Ta objecive is

undamenally a odds wih he power he Sae assers here o classiy persons

subjec o is laws as noneheless exceped fom is proecion.6

Te 14h Amendmens applicaion in his conex signaled he reach o he

Consiuions proecion. Bu he decisions real hallmark, which has resonaed

across he inervening decades, was is deerminaion ha undocumened chil-


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dren canno be punished or heir parens immigraion violaions and ha deny-

ing hem an educaion is a severe and debiliaing punishmen.

Brennan reasoned ha he exas saue:

[I]mposes a lieime hardship on a discree class o children no accounable orheir disabling saus. Te sigma o illieracy will mark hem or he res o heir

lives. By denying hese children a basic educaion, we deny hem he abiliy o

live wihin he srucure o our civic insiuions, and oreclose any realisic pos-

sibiliy ha hey will conribue in even he smalles way o he progress o our

Naion. In deermining he raionaliy o [he exas saue], we may appropri-

aely ake ino accoun is coss o he Naion and o he innocen children who

are is vicims. In ligh o hese counervailing coss, he discriminaion conained

in [he saue] can hardly be considered raional unless i urhers some subsan-

ial goal o he Sae.7

Imporanly, he Cour rejeced exass conenion ha is desire o sop a wave

o unauhorized migraionhe basis o excluding children rom public educa-

ionjusied marginalizing undocumened minors.

Describing his immigraion conrol sraegy as ludicrously ineecual,8 Brennan

mainained ha his policy o denying children public educaion was no ade-

quaely ailored o advance exass ineres in prevening unauhorized migraion.

And i cerainly did no provide a compelling reason o jusiy he discriminaory

reamen o unauhorized immigran children.

Te Cour also rejeced he saes argumen ha he cos o educaing hese chil-

dren jusied imposing a special burden on hem. I concluded ha saes scal

inegriy did no provide a legiimae basis or discriminaing agains hese kids.

Wih his ruling, Jusice Brennan and he Supreme Cour eecively guaraneed

ha he righ o public educaion would no be abridged or any group or class o

children in he Unied Saes. Bu as we deail in he nex secion, he ruling and

he values ha permeae i have been squarely under atack in hree decades since.

With this ruling,

Justice Brennan

and the Suprem

Court eectively

guaranteed that

the right to pub

education woul

not be abridged

any group or cla

o children in th

United States.


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Since hePlylerdecision in 1982, resricioniss have repeaedly atemped o chal-

lenge i and o eiher limi or do away wih is proecions compleely.

wo main challenges in he mid-1990s ailed: Caliornias Proposiion 187, which

would have barred any and all sae benes o unauhorized immigrans, and an

atemp by Rep. Elon Gallegly (R-CA) o pass an amendmen allowing saes o

ban public educaion o unauhorized immigrans.

In recen years, however,Plyleropponens have changed acics. Insead o chal-

lenging ourigh he abiliy o unauhorized immigrans o atend public schools,

hey are probing he law in oher ways, such as hrough Alabamas recen immi-

graion law ha orces schools o collec inormaion abou he legal saus o

heir sudens. Groups like he Immigraion Reorm Law Insiue (par o he

Federaion or American Immigraion Reorm, which he Souhern Povery Law

Cener has labeled a hae group) acknowledge ha hese laws will be challenged

in he cours. Bu hey see hem as a means o an end: a way o orce odays more

conservaive Supreme Cour o revisi and overurn hePlylerdecision.9

Les look a he major challenges oPlylerin more deail:

The 1990s: Proposition 187 and the Gallegly amendment

Resricionis opposiion oPlylercoalesced in Caliornia in 1994 wih he passage

o Proposiion 187. Gov. Pee Wilson (R) wached he rise o ani-immigran seni-

men in he sae and sough o urn around his sinking poll numbers wih a sharp

righ urn on immigraion. Wilson railed agains unauhorized immigrans use opublic services such as educaion and healh care, alleging in paricular ha public

educaion o unauhorized immigrans cos he sae $1.5 billion each year.10

Plyler v. Doe under attack since 1982


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Proposiion 187 isel deal wih a wide variey o issues in addiion o public

educaion, denying all public services ouside o emergency healh care o people

wihou saus and creaing a sae mechanism o veriy ha applicans or service

had legal saus. Even wih opposiion rom Laino groups and he American Civil

Liberies Union, he measure passed by a wide margin, 59 o 41 percen.11

Unsurprisingly, he cours quickly sruck down mos o he proposiion because o

is confic wihPlyler.12 As legal scholar Michael A. Olivas poins ou, in he wake

o Proposiion 187, Caliornia amended is educaional saues o clearly sae,

Nohing in his chaper may be consrued as addressing alien eligibiliy or a basic

public educaion as deermined by he Supreme Cour o he Unied Saes under

Plyler v. Doe.13

Wih he ailure o he sae eor in Caliornia,opponens urned o Congress and

jus wo years laer,Plylercame back ino he oreground during he debaes over

he Illegal Immigraion Reorm and Immigran Responsibiliy Ac o 1996. Teac severely srenghened immigraion enorcemen, hardened penalies or unau-

horized enry (including, or example, re-enry bars o 3 or 10 years or unauhor-

ized immigrans, depending on how long hey had lived in he Unied Saes), and

removed he auhoriy rom ederal cours o hear challenges o deporaions.14

During he debaes over he bill, Rep. Elon Gallegly (R-CA) atemped o inro-

duce an amendmen ha would overurnPlylerby graning saes he abiliy o

shu ou unauhorized immigran children rom public educaion. Gallegly mod-

eled his amendmen specically on Proposiion 187 and believed ha while he

Plylerdecision had sopped individual saes rom denying public educaion, i had

no sopped he ederal governmen rom acing.15


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Conroversy over he Gallegly amendmen began almos immediaely, since, as

Rep. Zoe Logren (D-CA) pu i, Whaever you hink abou he behavior o

aduls, i is immoral o punish he minor children or he sins o heir parens.16

Mos major law enorcemen groups agreed, wih he Fraernal Order o Police,

he larges police organizaion, saing ha he Gallegly amendmen would urn

innocen kids wih boundless poenial ino wards o he sree by allowing hem

no access o schooling.

In addiion o he numerous law enorcemen groups opposing he measure, educaor

groupsincluding he Naional Educaion Associaion, he American Federaion o

eachers, and he Naional Associaion o School Adminisraorsjoined in opposi-

ion because o he laws atemps o limi access o public educaion. 17

Supporers o he amendmen, on he oher hand, used he rame o saes righs,

arguing ha saes should be able o decide whom hey educae, and poining ohe high coss o educaing hese children.18

Te Gallegly amendmen passed he House o Represenaives by a wide margin,

257 o 163. Te Senae, by conras, had no such proposal in is version o he

The Fraternal Order o Police (National)

The International Union o Police Associations

The National Association o Police Organizations

The International Brotherhood o Police Ofcers The Major Cities Chies

The National Black Police Association

The Police Executive Research Forum

The National District Attorney Association

Lost Angeles County Sheri Sherman Block

The Police Chies o: Chicago, Miami, Philadelphia, Sacramen

Diego, San Jose, Santa Ana, and Sioux City

Intercultural Development Research Association

National Association o Bilingual Education National Education Association

National Association o School Administrators

American Federation o Teachers

Council o Chie State School Ofcers

A sampling of organizations opposing the Gallegly amendment

Sources: Marc Lacey, Bills Support Marked by Contradiction, Los Angeles Times, July 6, 1996, available athttp://artices.atimes.com/1996-07-06/news/mn-21616_1_aw-enorcement-ocers; Dan Stein, ThAttempt to Bar the Schoolhouse Door-Principle or Politics? Los Angeles Times, July 10, 1996, available athttp://artices.atimes.com/1996-07-10/oca/me-22761_1_iega-immigration; Albert Cortez and AnRomero, Public Engagement Results in Support o Education or All Children (San Antonio: Intercultural Development Research Association, 1996), available athttp://www.idra.org/IDRA_Newsetter/NovemDecember_1996_Pubic_Engagement/Pubic_Engagement_Resuts_in_Support_o_Education_or_A_Chidren/; Nancy Hill-Holtzman, Hugo Martin, and Marc Lacey, Chick Getting Her Ducks in a Row oFee Showdown, Los AngelesTimes, July 26, 1996, available at http://artices.atimes.com/1996-07-26/oca/me-28275_1_sewer-ees.
http://articles.latimes.com/1996-07-06/news/mn-21616_1_law-enforcement-officershttp://articles.latimes.com/1996-07-06/news/mn-21616_1_law-enforcement-officershttp://articles.latimes.com/1996-07-06/news/mn-21616_1_law-enforcement-officershttp://articles.latimes.com/1996-07-10/local/me-22761_1_illegal-immigrationhttp://articles.latimes.com/1996-07-10/local/me-22761_1_illegal-immigrationhttp://www.idra.org/IDRA_Newsletter/November_-_December_1996_Public_Engagement/Public_Engagement_Results_in_Support_of_Education_for_All_Children/http://www.idra.org/IDRA_Newsletter/November_-_December_1996_Public_Engagement/Public_Engagement_Results_in_Support_of_Education_for_All_Children/http://www.idra.org/IDRA_Newsletter/November_-_December_1996_Public_Engagement/Public_Engagement_Results_in_Support_of_Education_for_All_Children/http://articles.latimes.com/1996-07-26/local/me-28275_1_sewer-feeshttp://articles.latimes.com/1996-07-26/local/me-28275_1_sewer-feeshttp://www.idra.org/IDRA_Newsletter/November_-_December_1996_Public_Engagement/Public_Engagement_Results_in_Support_of_Education_for_All_Children/http://www.idra.org/IDRA_Newsletter/November_-_December_1996_Public_Engagement/Public_Engagement_Results_in_Support_of_Education_for_All_Children/http://articles.latimes.com/1996-07-10/local/me-22761_1_illegal-immigrationhttp://articles.latimes.com/1996-07-06/news/mn-21616_1_law-enforcement-officers


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Illegal Immigraion Reorm and Immigran Responsibiliy Ac, and he amend-

men had litle suppor: Sens. Phil Gramm (R-X) and Kay Bailey Huchinson

(R-X) declared heir ourigh opposiion, while Presiden Bill Clinon publicly

saed ha he would veo he bill because o he atacks onPlyler. Under pressure,

Congress sripped he amendmen rom he nal bill, once again repelling he

challenge oPlyler.19

Alabama and recent challenges to Plyler

In he pas ew years challenges oPlylerhave reappeared a he sae level.

Nowhere is he new sraegy o atack he decision clearer han wih Alabamas

Beason-Hammon Alabama axpayer and Ciizen Proecion Ac, H.B. 56.

In June o 2011 Alabamas legislaure ollowed he lead o saes such as Arizona

ha had already passed harsh and puniive ani-immigran measures. Bu H.B. 56wen ar beyond even Arizonas model legislaion, S.B. 1070, which inamously

allows police o check he saus o anyone hey have a reasonable suspicion o

being wihou saus.20 In addiion, Alabamas law conains a provision ha man-

daes public schools o check and repor on he legal saus o heir sudens and

heir sudens parens.21

One million unauthorized children under the age o 18 live in the United States today.

Four hundred thousand unauthorized immigrant children have U.S.-born citizen siblings.

Sixty-three percent o unauthorized amilies have been in the United States or longer

than a decade, meaning they are well settled into American lie.

Nearly 800,000 children attend public schools in Alabama. Only one hal o 1 percent

o them are unauthorized immigrants.

Sources: Paul Taylor and others, Unauthorized Immigrants: Length o Residency, Patterns o Parenthood (Washington: Pew

Hispanic Center, 2011); Campbell Robertson, Critics See Chilling Eect in Alabama Immigration Law, New York Times, October27, 2011.

A profile of unauthorized children today


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Insead o direcly challengingPlylerby barring unauhorized immigrans rom pub-

lic schools, H.B. 56 pushed a he ringes o he decision by asking schools o repor

on heir sudens saus. Bu here is nohing simple abou reporing requiremens

such as his one, especially when i comes o a populaion already araid o inerac

wih ocials who could ulimaely depor hem or heir parens.22

Sure enough, when he rs judge o hear he case, Sharon Lovelace Blackburn,

ailed o overurn he educaion provision, pandemonium broke ou in he sae.

For wo weeksrom Sepember 28 o Ocober 14, when he U.S. Cour o

Appeals or he 11h Circui pu he educaion provisions on holdAlabamas

public schools saw a marked drop in he number o Laino sudens atending. On

he rs day he laws provisions wen ino eec, more han 2,200 o he 34,000

Laino sudens in sae public schools were absen, promping he Deparmen

o Jusice in early November o wrie a leter reminding sae school disrics ha

hey could no bar access o public educaion and requesing inormaion on he

number o absen sudens.23

Aer he Deparmen o Jusice received and reviewed he inormaion he sae o

Alabama sen hem, Assisan Atorney General Tomas Perez sen a new leter o

he Alabama sae superinenden o educaion on May 1, 2012, ciing signican

concerns ha H.B. 56 had negaively aeced schooling in he sae, paricularly

or Laino sudens. Te leter poined o he signican upick in Laino suden

absences and wihdrawals aer he law wen ino eec, ar more han oher racial

and ehnic groups and ar more han in previous years.

Perez concluded, Te legislaion has had coninuing eecs on Alabamas school-

children even aer i was enjoined by he cour. And counering proponens

argumens ha he provisions simply sough inormaion abou he unauhor-

ized populaion, Perez reminded he superinenden ha, consisen wihPlyler,

disrics canno reques inormaion wih he purpose or he resulo denying

sudens access o he public schools.24

Bu H.B. 56s educaion provision had a larger and more insidious goal hidden

behind he immediae consequence o driving sudens rom Alabamas schools.

In aNew York imes aricle, he auhor o H.B. 56s educaion provisions, MichaelHehmon, general counsel o he Immigraion Reorm Law Insiue, argued ha

he law was a rs sep in a larger and long-considered sraegy o overurnPlyler.

On the frst day

laws provisions

went into eect

more than 2,200

the 34,000 Latin

students in state

public schools

were absent.


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10 Center or American Progress |Triumphs and Chaenges on the 3 0th Anni vers ary oPlyler v. Doe

Hehmon old he imes ha challenges oPlyler, such as Caliornias Proposiion

187, had no succeeded in he cours because o a lack o hard inormaion abou

he number o unauhorized immigrans in schools, which, he argued could

be compared wih oher sors o perormance or resource allocaion issues. He

atemped o prove ha he educaion o unauhorized immigrans was oo cosly

o he saes, an argumen ha Jusice Brennan rejeced inPlyler.25

In an op-ed or heDenver Pos, William Perry Pendley, presiden o he Mounain

Saes Legal Foundaion, feshed ou he resricionis posiion by arguing ha more

han a quarer cenury aerPlyler, he acs relied on by he majoriynamely he

nancial burden o educaing unauhorized immigranshave changed dramai-

cally. Pendley concluded, A case ha challenges ha ruling is long overdue. 26

As Hehmons quoes i llusrae, he recen and hisorical atemps o overurn

hePlylerdecision o course have litle o do wih resricing access o public

schooling or wih children hemselves and everyhing o do wih nding unau-horized immigrans.

Atacks onPlylerollow he resricionis playbook o atriion hrough enorce-

men. Tese groups believe i hey make lie as dicul as possible or unauhor-

ized immigrans, hey will sel-depor back o heir home counries.27 As Jack

Marin o he Federaion or American Immigraion Reorm esied in 2007

(aer arguing haPlyleronly applies o secondary educaion):

Wha mus remain he ocus on acions o deal wih he illegal alien problem is

wha message i sends o illegal aliens. In he same way ha he lack o adequae

enorcemen encourages illegal immigraion o he Unied Saes, he measures

adoped and enorced by a sae or local governmen will eiher atrac more

illegal residens or deer hem.28

Bu using children o resric immigraion is no as simple as i sounds. In he nex

secion we urn o wha lie would be like iPlylerwere o be overurned.


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A nation without Plyler

So wha would he naion look like wihouPlyler? As saes like Alabama ry o

urn back he clock and orce he Supreme Cour o rehear argumens on he case,

les consider he economic, social, and pracical consequences we would suer i

undocumened children were shu o our schools.

Beore we do ha, i is imporan o noe ha he evidence shows ha unauhor-

ized immigrans are no leaving he Unied Saes even in he ace o harsh eors

o make hem sel-depor. Tese sraegies are a he hear o he challenges oPlyler, which would remove he righ o public educaion. As such, he ollowing

economic, social, and pracical consequences would be el by a large group o

children across he counry.29

TePlylerproecions alone do no solve he problem o large numbers o unau-

horized children living in he counry. As scholars such as Robero G. Gonzalez

o he Universiy o Washingon have ound, while access o public K-12 educa-

ion is a crucial building block in inegraion, wihou a pahway o legal saus,

higher educaion and job prospecs become ever more remoe.30 Oher proec-

ions, such as passage o he DREAM Acwhich would gran legal saus or

people brough here a a young age who complee high school and hen some

college or miliary servicewould ensure he ull paricipaion o hese children

in American lie and he U.S. economy.31

The economic costs of relegating students to the lowest

socioeconomic class

Te economic implicaions o barring an enire group o children rom he publiceducaion sysem would be proound. Wihou a K-12 educaion, children who

were brough o his counry a a young age wihou papers or oversayed heir

immigran visas hrough no aul o heir own would be marginalized ino he


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lowes socioeconomic class, as U.S. disric cour Judge William Wayne Jusice

wroe in an early decision onPlyler.32

Lacking a high school degree, or he possibiliy o ever ataining one, his group

would join he ranks o our naions high school dropous, whose unemploymen

rae hovered a a saggering 13 percen in May 2012.33

Full-ime workers wihoua high school diploma earn nearly one-hird less han workers who graduae high

school (bu do no atend college), and earn more han 60 percen less han work-

ers wih a bachelors degree. Te average ull-ime worker who does no complee

high school will have o work every week o he year, wih no ime o, o jus

barely keep a amily o our above he povery line.34

Such a dramaic loss in poenial household income would do more han harm

individuals. Even i hese uneducaed youh could secure employmen, heir sig-

nicanly lower wages would ranslae o lower ax receips, which in urn would

damage he scal healh o he naion as a whole. Low wages and high raes ounemploymen would simulaneously lead o higher raes o dependence on hose

ew governmen assisance programs available o undocumened immigrans and

heir amilies, urher burdening our naion when hese individuals could have

conribued o our economic progress.

Judge Jusice oresaw his grave problem when he wroe, Children raised wihou

any educaion a all are likely o become burdens on he res o sociey.35

Wih litle srucure le o govern heir days, hese young adulswhose eco-

nomic poenial was suned when he doors o he schoolhouse closed o hem

would be a a higher risk o incarceraion. A 2009 sudy rom Norheasern

Universiy ound ha he incidence o incarceraion among high school dropous

was more han 63 imes higher han among college graduaes and more han six

imes higher han among high school graduaes.36 Wih he average cos o incar-

cerae a prisoner or a year a nearly $29,000, he consequences o orcing children

ou o schools would be el by every U.S. axpayer.37

Te evidence is clear: Closing o his groups access o an educaion would curail

our economic compeiiveness and bring unnecessary coss o axpayers.

Denying hese children an educaion is also no in our naions sel-ineres down

he road. Consider ha he Unied Saes will soon be aced wih a wave o reirees

ha needs o be replaced by a highly skilled, 21s cenury workorce. In 2011, 13

The economic

implications

o barring an

entire group o

children rom th

public educatio

system would b

proound.


16/22


percen o he U.S. populaion was 65 years old or older, bu by 2030, ha per-

cenage is expeced o increase o 20 percen.38 Shrinking he pool o replacemen

workers by no educaing undocumened sudens would seriously imperil labor-

orce growh, and in urn, our naions economy.

Our counry desperaely needs hese new Americans o replace aging babyboomers in heir jobs, o buy baby boomers homes,39 and o pay axes ha will

conribue o he social securiy sysem, where an income-o-coss gapwih

more money leaveing he sysem han enering iis expeced o widen as he

baby boomer generaion reires.40

The social costs of unthreading the fabric of our society

Bu he coss o barring unauhorized children rom public educaion go beyond

he economic. Jusice Brennan oresaw hese social coss in his majoriy opinion inPlylerwhen he wroe, [Public] educaion has a undamenal role in mainaining

he abric o our sociey.41 Poining o he oundaion ha an educaion has in a

hriving democracy, Brennan coninued: We canno ignore he signican social

coss borne by our Naion when selec groups are denied he means o absorb he

values and skills upon which our social order ress.

Jusice Brennans oresigh is commendable. Immigran children begin heir

assimilaion ino U.S. sociey a school. Tey acquire English-language skills,

learn abou he hisory and radiions o heir new home, and are encouraged o

be poliically and civically acive in he classroom. On he playground and in he

caeeria hey mingle wih heir naive-born classmaes. Aer school sudens

ake hese skills home, where hey share hem wih heir amilies, who likely

are hemselves going hrough he process o assimilaion. Schools are also a key

place where parens, immigran and naive born alike, inerac, ge a sense o heir

communiies, and develop shared goals ha will enrich heir childrens educaion.

Closing schools o o a group o new Americans would ineviably handicap heir

inegraion ino our sociey.42

Our naion has made a hisory o incorporaing new and diverse peoplesandi has blossomed as a resul. Welcoming schools play a vial role in he successul

assimilaion o immigrans ino our naional ideniy and sociey, making hem

equal and producive members o our economy. Te very abric o our sociey

would begin o unravel wihou hem.


17/22


The practical consequences for al l childreneven citizens

of removing Plyler

Wih 16.6 million people in amilies wih a leas one undocumened immigran, and

54 percen o hese amilies o mixed saus (composed o a leas one unauhorized

adul and one U.S.-born child),43

he pracical implicaions o prohibiing undocu-mened children rom atending public schools are as complex as hey are perverse.

WihouPlyleri is easy o imagine a scenario where he younger U.S. ciizen chil-

dren are atending public school while heir undocumened older siblings are kep

ou and denied he American Dream.

ake, or example, he Lopez amily, who challenged he yler Independen

School Disric in hePlylercase along wih hree oher amilies.44 Four o he

Lopez siblings were born in he Mexican sae o Zacaecas, while heir six

younger siblings were born in yler, exas. Te younger children were ciizensand hereore exemp rom he unjus exas measure.

Wihou an educaion i would be dicul o know i he our undocumened

Lopez siblings could become ull and conribuing members o he yler commu-

niy. Bu because o hePlylerdecision hey received an educaion, and oday one

o hem works a a local bank while anoher works or he shipping deparmen o

a grocery sore chain. wo are now U.S. ciizens and wo ohers have green cards.

Tey own heir own homes and heir children wan o keep climbing he prosper-

iy ladder by becoming docors, eachers, and enrepreneurs.45

Sudens banned rom heir schools would be ineligible or work due o heir age

and heir lack o legal saus. Tis would leave a signican number o youhs wih

nohing o do bu roam heir neighborhoods during he day, a scenario ha would

surely raise alarm wih any member o he law enorcemen communiy.

On a pracical level, naive-born Americans oo would be aeced by a decision o

impose barriers o public educaion on undocumened immigran children. Since

immigraion saus is no discernible by any physical or socioeconomic rai, every

paren in American would be required o prove heir childrens legal saus prior oenrolling hem in public school. Under his scenario educaors would also suer

as hey will be orced o become immigraion agens, a ask hey are unrained or

and likely unskilled a perorming.

With 16.6 millionpeople in amilie

with at least one

undocumented

immigrant,

the practical

implications

o prohibiting

undocumented

children rom

attending public

schools are as

complex as they

are perverse.


18/22


Conclusion

I he Supreme Cour does rehear hePlylerdecision, i will have a choice similar

o he challenges o Arizonas ani-immigraion law, S.B. 1070, inArizona v. U.S.:

Will he jusices once again serve as a bulwark agains sae eors o marginalize

undocumened immigrans? Or will hey allow divisive, desrucive sae immigra-

ion enorcemen schemes o be implemened? Will he Cour move he counry

orward wih a ruling ha prevens racial and ehnic proling and places he onus o

immigraion enorcemen squarely on he ederal governmen where i belongs? Or

will he Cour allow saes o eecively declare war on heir immigran populaions?

Clearly he economic, social, and pracical coss o overurningPlylerare oo high

o be borne by he Unied Saes. Te Supreme Cour did he righ hing 30 years

ago in ensuring equal access o public educaion. Atacking he righ o public

educaion now will only lead o a worse Americano a beter one.

Finally, i is ting ha as we look back a he Plyler decision, we also hink

ahead o he uure o he children impaced by he decision who live in limbo as

Americans bu wihou he abiliy o work and realize heir poenial. Te need

or congressional acion is compelling and indispuable. Following on Plyler, he

nex logical ye long overdue sep is he passage o he DREAM Ac ha would

ensure ha immigran youheducaed in he Unied Saes and American in all

bu a piece o paperrealize heir ull poenial. Te legislaion opens he door

o ull paricipaion in U.S. sociey by our naions undocumened immigran

youh, reaping benes ha will be priceless, powerul, and valuable o he naion.

Passage o he DREAM Ac would nish wha Plyler saredan equal chance or

all youh o live heir American Dream.


19/22


About the authors

Marshall Fitz is Direcor o Immigraion Policy a American Progress. Beore hold-

ing his curren posiion he served as he direcor o advocacy or he American

Immigraion Lawyers Associaion where he led he educaion and advocacy

eors on all immigraion policy issues or he 11,000-member proessional barassociaion. He has been a leader in naional and grassroos coaliions ha have

organized o advance progressive immigraion policies.

Fiz is a graduae o he Universiy o Virginia School o Law and served on he

Virginia Law Review. Aer graduaion he clerked or Judge Bruce M. Selya on

he U.S. Cour o Appeals or he Firs Circui. In he ollowing years he praciced

immigraion law in Washingon, D.C., a Hogan & Harson, LLP.

Philip E. Wolgin is an Immigraion Policy Analys a American Progress. His

research ocuses on he developmen o U.S. and comparaive immigraion andreugee policy rom World War II o he presen.

Wolgin has published in peer-reviewed journals as well as in online publicaions such

as Te Hungon Pos, and has augh a he Universiy o Caliornia Washingon

Cener. He has also been involved wih local D.C.-area immigraion and reugee

causes, voluneering wih he Hebrew Immigran Aid Sociey and CARECEN.

A naive o New Jersey, Wolgin earned his M.A. and Ph.D. in American hisory rom

he Universiy o Caliornia, Berkeley, and his B.A. rom New York Universiy.

Ann Garcia is a Research and Policy Associae or he Immigraion Policy eam a

American Progress. She earned her B.A. in inernaional poliics and economics

rom Middlebury College and worked wih immigran and naive communiies in

Vermon o help oser welcoming environmens.

A long ime residen o exas, Garcia has worked in migran shelers in norhern

Mexico. She inerned wih CAPs Communicaions eam in he summer o 2008.

Te daugher o immigrans, she is a naive o Zaragoza, Spain.


20/22


Endnotes

1 Plyler v. Doe, 457 U.S. 202 (1982).

2 The ega theories behind the two cases certainy dier,with equa protection caims being made in Plyler, andedera preemption caims being made in Arizona v.U.S. Nevertheess, the potentia impact o overturningPlyleror uphoding Arizonas S.B. 1070 wi be the same.OnArizona v. U.S., see: Marsha Fitz and Jeanne But-

tered, Arizona v. United States in the U.S. SupremeCourt (Washington: Center or Am erican Progress,2012), avaiabe at http://www.americanprogress.org/issues/2012/04/az_us_supreme_court.htm.

3 See, or exampe: Citizens United v. Federal ElectionCommittee558 U.S. (2010), Berghuis v. Thompkins560U.S. (2010),Arizona v. Gant556 U.S. (2009), Gross v.FBL Financial Services 557 U.S. (2009) and Montejo v.Louisana 556 U.S. 778 (2009), to name a ew.

4 Michae A. Oivas, Plyler v. Doe: Sti GuaranteeingUnauthorized Immigrant Chidrens Right to AttendPubic Schoos (Washington: Migration Poicy Institute,2010), avaiabe at http://www.migrationinormation.org/eature/dispay.cm?ID=795.

5 Plyler. On the Plylerdecision in genera, see: Michae A.Oivas, No Undocumented Child Left Behind: Pyer v. Doe

and the Education of Undocumented Children(New Yor:New Yor University Press, 2012).

6 Plyler, p. 213.

7 Ibid, p. 223-224.

8 Ibid, p. 228.

9 Campbe Robertson, Critics See Chiing Eectin Aabama Immigration law, New York Times,October 27, 2011, avaiabe at http://www.nytimes.com/2011/10/28/us/aabama-immigration-aws-critics-question-target.htm?_r=2; On the SPlC abeing FAIR ahate group, see: Heidi Beirich, Federation or AmericanImmigration Reorms Hate Fied Trac Record(Montgomery: Southern Poverty law Center, 2007),avaiabe at http://www.spcenter.org/get-inormed/inteigence-report/browse-a-issues/2007/winter/the-

tefon-nativists.

10 Aristide R. Zoberg,A Nation By Design: ImmigrationPolicy in the Fashioning of America (Cambridge: HarvardUniversity Press, 2006), p. 402-408.

11 Ibid.

12 Ibid.

13 Oivas, Plyler v. Doe.

14 On the Iega Immigration Reorm and ImmigrantResponsibiity Act, see: Zoberg, A Nation By Design, p.410-423.

15 James G. Gimpe and James R. Edwards, Jr. The Congres-sional Politics of Immigration Reform (Needham Heights:Ayn and Bacon, 1999), p, 257; Oivas, Plyler v. Doe.

16 Gimpe and Edwards, The Congressional Politics of Im-migration Reform, p.257

17 Marc lacey, Bis Support Mared By Contradiction,Los Angeles Times, June 6, 1996, avaiabe at http://ar-tices.atimes.com/1996-07-06/news/mn-21616_1_aw-enorcement-ocers.

18 Gimpe and Edwards, The Congressional Politics, p. 259.

19 Gimpe and Edwards, The Congressional Politics, p. 259,269, and 272-274.

20 Fitz and Buttered, Arizona v. United States in the U.S.Supreme Court.

21 Tom Baxter, Aabamas Immigration Disaster: TheHarshest law in the land Harms the States Economyand Society (Washington: Center or American Progress,2012), avaiabe at http://www.americanprogress.org/issues/2012/02/pd/aabama_immigration_disaster.pd.

22 On ears o interacting with ocias, see, or exampe:Angea S. Garca and David G. keyes, lie as anUndocumented Immigrant (Washington: Center orAmerican Progress, 2012), avaiabe at http://www.americanprogress.org/issues/2012/03/ie_as_undocu-mented.htm.

23 Baxter, Aabamas Immigration Disaster.

24 U.S. Department o Justice, Civi Rights Division, letterrom Thomas Perez to Thomas R. Bice, May 1, 2012,avaiabe at http://media.a.com/bn/other/DOJ%20let-ter%20May%202012.pd. Emphasis added.

25 Robertson, Critics See Chiing Eect.

26 Wiiam Perry Pendey, Guest Commentary: PubicEducation and Iega Immigrants, Denver Post, March12, 2011, avaiabe at: http://www.denverpost.com/opinion/ci_17595084.

27 On attrition through enorcement, see: NumbersUSA,Attrition Through Enorcement, avaiabe at https://www.numbersusa.com/content/enorcement/attrition-through-enorcement.htm.

28 Federation or American Immigration Reorm, IegaImmigration and its aects [sic.] on society and theeconomy, Statement o Jac Martin, Specia ProjectsDirector, Federation or American Immigration Reorm,at a hearing in lancaster on October 19, 2007, avaiabeat: http://www.airus.org/testimony/iega-immigra-

tion-and-its-aects-on-society-and-the-economy?A=SearchResut&SearchID=1916384&ObjectID=5124194&ObjectType=35.

29 On the act that unauthorized immigrants are noteaving the U.S. even in the ace o harsh aws, see: leahMuse-Orino, Staying Put but Sti in the Shadows:Undocumented Immigrants Remain in the CountryDespite Strict laws (Washington: Center or AmericanProgress, 2012), avaiabe at http://www.american-progress.org/issues/2012/02/mexico_immigration.htm; and Aexandra Fiindra, How Behaviora Econom-ics Reveas the Faacies behind Attrition throughEnorcement (Washington: Immigration Poicy Center,2012), avaiabe at http://www.immigrationpoicy.org/perspectives/myth-se-deportation.

30 Roberto G. Gonzaes and leo R. Chavez, Awaening toa Nightmare: Abjectivity and Iegaity in the lives o

Undocumented 1.5 Generation latino Immigrants inthe United States, Current Anthropology53 (3) (2012).

31 On the DREAM Act, see: Marsha Fitz and Ann Garcia,The DREAM Act by the Numbers: Providing High-Achieving Young Peope a Path to Earn Citizenship(Washington: Center or American Progress, 2010)avaiabe at: http://www.americanprogress.org/is-sues/2010/12/dream_numbers.htm.
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32 lucy Hood, Educating Immigrant Students, CarnegieReporter4 (2) (2007).

33 Empoyment status o the civiian popuation 25 yearsand over by education attainment, avaiabe at http://www.bs.gov/news.reease/empsit.t04.htm.

34 Bureau o labor Statistics, Usua Weey Earnings oWage and Saary Worers First Quarter 2012, avaiabeat http://www.bs.gov/news.reease/pd/wyeng.pd.

35 Hood, Educating Immigrant Students.

36 Andrew Sum, Ishwar khatiwada, and Joe Mclaughin,The Consequences o dropping out o high schoo(Boston: Northeastern University, Center or laborMaret Studies, 2009).

37 Adam Sonic, Runaway Prison Costs Trash State Bud-gets,Fiscal Times, February 9, 2011, avaiabe at http://www.thescatimes.com/Artices/2011/02/09/Run-away-Prison-Costs-Thrash-State-Budgets.aspx#page1.

38 Michae Ettinger, Michae linden, and Seth Hanon,Budgeting or Growth and Prosperity: A long-termPan to Baance the Budget, Grow the Economy, andStrengthen the Midde Cass (Washington: Center orAmerican Progress, 2011).

39 Dowe Myers and John Pitin, Assimiation Tomorrow:How Americas Immigrants Wi Integrate by 2030(Washington: Center or American Progress, 2011).

40 Christian E. Weer, Buiding It Up, Not Tearing it Down:A Progressive Approach to Strengthening Socia Secu-rity (Washington: Center or American Progress, 2010).

41 Plyler v. Doe, 457 U.S. 202 (1982).

42 Michae Jones-Correa, A Immigration is loca:Receiving Communities and Their Roe in Successu Im-

migrant Integration (Washington: Center or AmericanProgress, 2011).

43 Pau Tayor, Mar Hugo lopez, Jerey Passe, and SethMote, Unauthorized Immigrants: length o Residency,Patters o Parenthood (Washington: Pew ResearchCenter, 2011).

44 Hood, Educating Immigrant Students.

45 Ibid.
http://www.bls.gov/news.release/empsit.t04.htmhttp://www.bls.gov/news.release/empsit.t04.htmhttp://www.bls.gov/news.release/pdf/wkyeng.pdfhttp://www.bls.gov/news.release/pdf/wkyeng.pdfhttp://www.bls.gov/news.release/empsit.t04.htmhttp://www.bls.gov/news.release/empsit.t04.htm


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dedicated to promoting a strong, just, and ree America that ensures opportunity

or all. We believe that Americans are bound together by a common commitment to

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triumphs and challenges on the 30th anniversary of plyler v. doe

Documents