How A Rarely Discussed Supreme Court Case Could Upend Education.

Almost 50 years ago, the state of Texas cut off state funding for the education of “illegal aliens.” In 1977, that law was challenged, and in 1982 the Supreme Court handed down a decision in Plyler vs. Doe. Texas, five justices said, could not deny a education to undocumented children.

The reasoning was that the children were in fact persons within the jurisdiction of the state, and therefore, under the 14th Amendment, entitled to equal protection under the law. The state argued that the “the undocumented status of these children vel non establishes a sufficient rational basis for denying them benefits that a State might choose to afford other residents,” but five justices disagreed. The state argued that providing education for the undocumented children was just too expensive. While education was not a “fundamental right,” it was still so important that, Justice Blackmun wrote, those uneducated children are “denied even the opportunity to achieve.” The denial of such a critical social program threatened to create an illiterate underclass, an American “caste system.” Equal protection under the 14th Amendment meant protection from being denied the opportunities that come with a free and equal public education. Education is an important social program, so if provided to some, it must be provided to all.

The dissenting opinion (by Chief Justice Burger) agreed that establishing an underclass of illiterate persons would be wrong, but argued that this was not the court’s problem to solve.

Congress, “vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens,” ante at 457 U. S. 237 (POWELL, J., concurring), bears primary responsibility for addressing the problems occasioned by the millions of illegal aliens flooding across our southern border. Similarly, it is for Congress, and not this Court, to assess the “social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.” Ante at 457 U. S. 221; see ante at 457 U. S. 223-224. While the “specter of a permanent caste” of illegal Mexican residents of the United States is indeed a disturbing one, see ante at 457 U. S. 218-219, it is but one segment of a larger problem, which is for the political branches to solve. I find it difficult to believe that Congress would long tolerate such a self-destructive result — that it would fail to deport these illegal alien families or to provide for the education of their children.

It’s a very optimistic view of Congress.

Texas Governor Abbott seems to feel that this argument might now have at least five votes on the current Supreme Court. On the conservative radio talk show, the Joe Pags show, Abbott said, “I think we will resurrect that case and challenge this issue again, because the expenses are extraordinary and the times are different than when Plyler versus Doe was issued many decades ago.”

Some legal observers see huge ramifications if Plyler is reversed. Matthew Patrick Shaw, Assistant Professor of Law at Vanderbilt who specializes in “the intersection of federal law and educational policy” tweeted on Thursday, “And if education isn’t special enough for the 14th A[mendement] to stop the states from saying it costs too much $$$ to teach undocumented youth then it isn’t special enough to stop the states from defunding it, vouchering it to death, privatizing it, or even doing away w/it completely.”

A Plyler reversal, some fear, would signal that education, while important, does not have to be provided by the state for all.

Right now this is speculation, a look far down the road at what might happen. But as Abbott observed, “The times are different.” How different remains to be seen.