Texas Gov. Greg Abbott Wants Plyler v. Doe Overturned

In the immediate aftermath of the leaked Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization, Texas Gov. Greg Abbott (R) said Wednesday that the Lone Star State is ready to challenge a 40-year old decision requiring Texas to provide free public education to the children of undocumented immigrants.

In an appearance on The Joe Pags Show reacting to the news on the SCOTUS leak, Gov. Abbott specifically referred to the Supreme Court’s 1982 decision in Plyler v. Doe.

“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 v. Doe was issued many decades ago,” Abbott told host Joe Pagliarulo.

Gov. Abbott (R-TX) says Texas will challenge a SCOTUS ruling protecting the right to free public education for all kids, including those with undocumented parents:

“The expenses are extraordinary, and the times are different than when Plyler v. Doe was issued many decades ago.” pic.twitter.com/SJBc8vhcSA

— The Recount (@therecount) May 5, 2022

What is Plyler v. Doe?

Plyler v. Doe is a 1982 Supreme Court case in which SCOTUS struck down a 1975 Texas state statute that denied funding to public schools for the education of the children of undocumented immigrants. The case also challenged Texas’ policy of authorizing its local school districts to deny public school enrollment to children not “legally admitted” to the country, and to charge families $1,000 per student to compensate for the lost funding due to their enrollment.

The case raised an Equal Protection Clause challenge based on Texas’s disparate treatment of the children of undocumented immigrants as compared with the that of other children within the state. The Court’s 5-4 majority sided with the children and against Texas, and held that Texas had illegally discriminated against the children of undocumented immigrants.

The 5-4 opinion in Plyler was authored by Justice William Brennan, and joined by Justices Thurgood Marshall, Harry Blackmun, Lewis Powell, and John Paul Stevens. Chief Justices Warren Burger and Justices Byron White, William Rehnquist, and Sandra Day O’Connor dissented.

The Plyler majority specifically found that the Fourteenth Amendment guarantees equal protection under the law to all people within the United States—and that “undocumented aliens” are people.

Brennan’s words left little room for doubt on the matter:

[Texas] argue[s] at the outset that undocumented aliens, because of their immigration status, are not “persons within the jurisdiction” of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments.

Once the Court found that the Fourteenth Amendment applied, it next turned to applying constitutional analysis to Texas’ laws. In its analysis of whether the plaintiff group of children of undocumented immigrants constituted a “suspect class” deserving of heightened scrutiny, the Court considered what it called a “‘shadow population’ of illegal migrants — numbering in the millions — within our borders.” Brennan noted that this “shadow population” exists because of lax enforcement of immigration laws and is “encouraged by some to remain here as a source of cheap labor.” “The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law,” Brennan wrote.

The high court, however, was unwilling to confer the label of “suspect class” to this group of children, and reasoned that “their presence in this country in violation of federal law is not a ‘constitutional irrelevancy.”” Still, Brennan’s majority was clearly troubled by Texas’ intention of denying immigrant children an education. He wrote that Texas’ law, “imposes a lifetime hardship on a discrete class of children not accountable for their disabling status,” and argued that the “stigma of illiteracy will mark them for the rest of their lives.”

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“By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation,” continued Brennan.

The children at issue were deemed a non-suspect class—a determination that would have meant a loss for most equal protection plaintiffs given that it dictates the application of “rational-basis scrutiny” as the appropriate Constitutional test. However, the Plyler majority held that Texas’ law failed to measure up even to this low standard.

To survive rational-basis scrutiny, a state need only show that its law is rationally related to a legitimate state interest.  Texas had not put forth any convincing rationale for its goal of excluding the children of immigrants from access to public educational system. Brennan noted that Texas put forth no evidence that immigrants entering illegally posed any significant burden to Texas’ economy, and that “few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education.”

Brennan went further as well, suggesting that Texas’ arguments were disingenuous, given that “‘[c]harging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,” at least when compared with the alternative of prohibiting the employment of illegal aliens.”

Furthermore, found Brennan’s majority, Texas had done nothing to prove that the children in question created any special drain on its educational resources. Rather, Brennan wrote, “In terms of educational cost and need, however, undocumented children are ‘basically indistinguishable’ from legally resident alien children.”

What has changed now that would embolden Abbott to suggest overturning Plyler?

Assuming for a moment that the leaked Dobbs opinion authored by Justice Samuel Alito becomes SCOTUS’s actual opinion or something close to it, the single most significant feature of the decision is the current Supreme Court’s lack of deference to stare decisis. The Court’s abortion jurisprudence has always been controversial, but as the conservative justices underscored in their own confirmation hearings, the ruling in Roe v. Wade constituted settled precedent (though then-nominee Amy Coney Barrett drew a key distinction others didn’t).

While SCOTUS has occasionally overturned past rulings, the instances of its having done so are very few and always noteworthy. Although the draft opinion explicitly stated that its holding was meant to apply only to the “unique” issue of abortion, the underlying message is clear: this majority is willing to upend settled law when it believes there is sufficient reason to do so—namely, when a decision is “egregiously wrong.”

Of course, public school enrollment and abortion are two very different topics. Moreover, the Plyler case raised an equal protection challenge, while Roe and Dobbs raise substantive due process claims. The Plyler court did not base its ruling on individual freedoms or the right to privacy; rather, it held that if Texas provides public education to its children, it must do so on an equal basis for all children within its borders.

Legally, there is not a great deal of direct parallel between Plyler and Dobbs. There exists no reasonable argument that Plyler created an “unworkable” precedent leading to the kind of jurisprudential chaos in Roe‘s wake that Alito railed against in Dobbs. Nor is there a parallel legal history for denying certain children public school education in the same way there is history of restricting abortion. However, Alito reasoned that because abortion is a hot-button issue, it is best left to the state-level democratic process to sort out. Illegal immigration is undoubtedly a highly politicized topic, and accordingly, there might be a similar incentive for another SCOTUS punt to state lawmakers on the issue of public schooling.

The Plyler court also left a door open for Texas by hanging some of the reasoning for its decision on the lack of evidence presented by Texas. Brennan wrote:

If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here.

Whether 2022 Texas could make the kind of evidentiary showing that might convince a court that its interests were more legitimate than 1982 Texas’ had been remains an open question.  Abbott argued on air that in the present day “the expenses are extraordinary and the times are different” than they had been in 1982. Should Abbott be able to sufficiently prove the differences, there is always the chance that the Dobbs majority, tentative as it may be, could be receptive to revisiting their predecessors’ narrow decision in Plyler.

[Photo by Loren Elliott/Getty Images]

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