February 13, 2003

Plyler vs. Doe: The Solution

By Howard Sutherland

[Part Two Of A Two Part Series: See Part One: 02/10/03 - America Educating The World–At Taxpayer Expense, by Howard Sutherland]

Behind truly insane public policy mandates in the United States, you often find the U.S. Supreme Court, willfully misinterpreting the Constitution to reach the political result favored by a majority of the justices.

Many of the Supreme Court’s most overreaching decisions have involved the 14^th Amendment. For over 30 years, Justice William Brennan–a New Jersey native–was one of the Court’s most inventive and reliably liberal judicial legislators. The “constitutional right” of illegal aliens to public schooling at Americans’ expense is one of the many “implied rights” Brennan discovered, hidden deep between the Constitution’s inky lines.

He manufactured this novel entitlement in his opinion for narrow a 5-4 majority in Plyler v. Doe. [i] Plyler has wreaked havoc on public education (and school finances) ever since.

Plyler was a class action suit brought on behalf of Mexican illegal aliens against the State of Texas, the Texas Education Agency and various Texas school districts. In its finding, the Supreme Court struck down a Texas statute withholding from local school districts any state funds for the education of children who were not legally admitted into the United States.

Observers across the country knew that Plyler was a critical case. Filing briefs for the illegal alien appellees were the American Immigration Lawyers Association, the American Jewish Committee, the Asian American Legal Defense and Education Fund (briefed by Bill Lann Lee, later President Clinton’s illegally-appointed head of the Justice Department’s Civil Rights Division), the Mexican American Bar Association of Houston, the American Friends Service Committee and the National Education Association.

Incredibly, given the burden Plyler would come to impose on Californians, the California State Board of Education also filed a brief supporting the illegal aliens.

Weighing in for Texas was a far smaller group, including the Federation for American Immigration Reform.

The reason the Court gave for overturning this perfectly reasonable Texas law was the Equal Protection Clause of the 14^th Amendment, which reads:

No State shall…deny to any person within its jurisdiction the equal protection of the laws. [ii]

The Court’s one-vote majority reached its desired result largely by side-stepping the actual wording of the 14^th Amendment and by making assumptions that were both irrelevant to a legal analysis of the Equal Protection Clause and insupportably favorable to illegal aliens.

The Court treated it as a given that most or all of these illegal alien children would wind up staying in the United States and eventually becoming legal residents. That they should be, well, deported was never seriously considered.

Neither was the fact that, as citizens of another country, all presumably had a right to whatever education their homelands provide.

After noting–truthfully but pointlessly–that an illegal alien is a “person,” Justice Brennan got on with rationalizing his contention that guaranteeing the equal protection of the laws to illegal aliens requires Americans to school their children for free.

But Brennan had a problem to dispose of: While the 14^th Amendment’s Due Process Clause [iii] is unqualified, the Equal Protection Clause applies to “any person within [a State’s] jurisdiction.”

To attain his desired result, Brennan tossed aside the limiting language about jurisdiction as meaningless—the same way the Federal government misconstrues the 14^th Amendment’s Citizenship Clause [iv] to grant U.S. citizenship to illegal aliens’ U.S.-born children. Thus he maintained that the “Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.” [v]

In support Brennan quoted the 14^th Amendment’s Congressional ratification debates. But he buried their context: These debates were all about prohibiting legal discrimination against freed slaves–Americans, not foreigners whose very presence in a state is a crime. To equate the two is insulting to the former slaves and their descendents.

Here is the quote Brennan thought most important, Ohio Representative John Bingham’s questions to the House:

Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property? [vi] (Emphasis added)

Only a sophist like Brennan could find here support for the notion that a state is constitutionally required to provide taxpayer-funded services–unrelated to protecting life, liberty and property–to people who are breaking the law by staying in it.

The Equal Protection Clause does provide a guarantee that, for example, a citizen of Louisiana in Texas is as protected against denials of life, liberty and property–enjoys the same due process of Texas and Federal law–as a Texan. The same would be true of a Mexican national in Texas.

However, even if one believes the 14^th Amendment incorporates all of the amendments in the Bill of Rights, applying them against the states as well as the Federal government, the Equal Protection Clause still does not extend to discretionary benefits offered by a state—such as 12 years of very expensive schooling, provided free.

Even Justice Brennan admitted “public education is not a “right” granted to individuals by the Constitution.” [vii] That admission negates his reliance on a second quote from the Congressional ratification debate, from Senator Jacob Howard of Michigan:

The [Due Process and Equal Protection Clauses] disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty or property without due process of law, or from denying to him the equal protection of the laws of the State. … [These clauses] will…forever disable every one of [the States] from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who happen to be within their jurisdiction. [viii] (Emphasis added)

Senator Howard is not talking about social services. Writing for the four dissenting justices, Chief Justice Burger stated the obvious:

The Equal Protection Clause does not mandate identical treatment of different categories of persons. [ix] The Equal Protection Clause guarantees similar treatment of similarly situated persons, but it does not mandate a constitutional hierarchy of governmental services. [x] Without laboring what will seem obvious to many, it simply is not “irrational” for a state to conclude that it does not have the same responsibility to provide benefits to persons whose very presence in the state and this country is illegal as it does to provide for persons lawfully present. By definition, illegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expense of those who are lawfully in the state. [xi]

For the majority, however, Justice Brennan airily dismissed the Texas law as having means–denial of school funding for illegal aliens–unrelated to its ends of cost control. With that out of the way, he abandoned altogether the idea that legal admission to the United States, or even American citizenship, should mean anything at all— in favor of a compulsory compassion for the illegal aliens he favors at the expense of the Americans he clearly does not:

In addition to the pivotal role of education in sustaining our political and cultural heritage, [emphasis added] denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers preventing unreasonable obstacles to advancement on the basis of individual merit. [A worthy sentiment, but one not found in the Equal Protection Clause’s text, nor in his quotes from Bingham and Howard.]… Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. [xii] (emphasis added)

What is striking is the presumption that America’s political and cultural heritage is somehow sustained by providing free schooling to multitudes of foreign nationals and that it is Americans’ constitutional duty to guarantee foreigners’ children educational excellence.

The harm done to American parents and children was never considered. As parents labor to pay ever-higher taxes, their children must share their schools with scores of illegal aliens— most not English-speaking. Or the parents can take on the double burden of sending their children to private schools.

None of this mattered to Brennan. He asserted that American states must school illegal aliens because denying them access to public schools:

…imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. 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. [xiii] (emphasis added)

Without using the phrase, the Supreme Court here declared the U.S. a “universal nation,” one with no borders–in effect, no nation at all. The only requirement for full participation in American life is to get here—somehow, anyhow.

Justice Brennan’s final rationale for the majority’s result was the most cynical: the Federal government does next to nothing about removing illegal aliens, so it is tacitly granting them permission to stay. He wrote:

Sheer incapacity or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented [sic] aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants–numbering in the millions–within our borders. [xiv] … To be sure, like all people who have entered the United States unlawfully, [illegal alien] children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen. … It would of course be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain. [xv] (emphasis added)

This part is Ronald Reagan’s fault. The Reagan Administration gave Brennan just the excuse he needed for such an extraordinary assertion when, in 1981, Attorney General William French Smith threw up his hands before the Congress and admitted that an impotent administration had no inclination to enforce the immigration laws:

The Attorney General recently estimated the number of illegal aliens within the United States at between 3 and 6 million. [Current estimates are between 9 and 13 million: amnesty begets illegal aliens!] In presenting to [the Congress] several Presidential proposals for reform of the immigration laws–including one to “legalize” many of the illegal entrants currently residing in the United States by creating for them a special status under the immigration laws–the Attorney General noted that this subclass is largely composed of persons with a permanent attachment to the Nation, and that they are unlikely to be displaced from our territory: “We have neither the resources, the capability, nor the motivation to uproot and deport millions of illegal aliens, many of whom have become, in effect, members of the community. By granting limited legal status to the productive and law-abiding members of this shadow population, we will recognize reality and devote our enforcement resources to deterring future illegal arrivals.” [xvi]

We all how well this attempt at deterrence succeeded. The later granting of amnesties for illegal immigrants rewarded millions of lawbreakers for their persistence.

Plyler v. Doe is a naked usurpation of Congressional powers— as Chief Justice Burger emphasized in his dissent:

The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of “effective leadership” in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. … However, it is not the function of the Judiciary to provide “effective leadership simply because the political branches of government fail to do so. … The Court employs, and in my view, abuses the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver. That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others. [xvii] … If ever a court was guilty of an unabashedly result-oriented approach, this case is a prime example. [xviii]

The last sentence of the Chief Justice’s dissent sums up:

“The solution to this seemingly intractable problem is to defer to the political processes, unpalatable as that may be to some.” [xix]

The answer to Plyler is political. The 14^th Amendment itself says “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” [xx] Contrary to what most people today believe, the Supreme Court is not the sole interpreter of the Constitution. The Congress can and should pass legislation clarifying that the Equal Protection Clause cannot be construed to compel a state to provide discretionary benefits, including public education, to anyone who is not legally admitted into the United States. The legislation should specify that it is not subject to judicial review.

At one stroke, such a law would overturn Plyler v. Doe— and go a long way toward countering the growing belief that we have no choice but to pretend that illegal aliens are in fact American citizens.