Plyler v. Doe: Still Guaranteeing Unauthorized Immigrant Children's Right to Attend U.S. Public Schools
Since the mid-2000s, states and localities frustrated with the federal government's inaction on immigration have passed a range of laws, many of which target unauthorized immigrants. Such laws have ignited numerous legal battles, most famously in Arizona.
But when it comes to education, states and localities cannot override the right of every child, no matter his or her immigration status, to attend a U.S. public school from kindergarten through 12th grade. In 1982, the U.S. Supreme Court upheld this right in the landmark case Plyler v. Doe.
The original Plyler case has proven quite resilient, fending off litigation and federal and state legislative efforts to overturn it, and nurturing efforts to extend its reach to college students. No matter the political view one takes, Plyler has helped ensure the integration of children born outside the United States at a time when the country's immigrant population has increased from about 20 million in 1990 to nearly 38 million in 2008.
This article examines the original case and the direct and indirect challenges to it, then looks at Plyler's role in the college-tuition debate, how Plyler could be challenged in the near term, and its long-term outlook.
The Plyler Case
In 1975, Texas enacted a state law that enabled its public school districts to charge tuition to parents of unauthorized school children. Although the underlying legislative history is unclear, and although no public hearings were ever held on the provision, certain border Texas school superintendents had supported the legislation, which was enacted without controversy as a small piece of larger, routine education statutes.
School officials in Tyler, Texas, about 100 miles from Dallas, under the direction of Superintendent James Plyler, began charging $1,000 annual tuition for each unauthorized immigrant student, under provisions of the recent state law. The school district had about 60 unauthorized immigrants enrolled out of about 16,000 students total, according to a figure cited in a Texas Observer article.
A Catholic lay worker called a local lawyer about children being told they could not go to school, and the lawyer agreed to represent the families. The lawyer began working with the Mexican American Legal Defense and Educational Fund (MALDEF). They filed a case on behalf of four families, whom the court allowed to be identified using pseudonyms.
A U.S. district judge issued a preliminary injunction requiring Tyler to admit all students and required the state education board to release funds to the Tyler school district for all students. In 1978, that judge found both the state law and Tyler's policy unconstitutional, holding that they violated the 14th Amendment's equal protection clause. The U.S. Court of Appeals for the Fifth Circuit affirmed the decision.
The Plyler case and a similar one from Houston went to the U.S. Supreme Court. In 1982, the Supreme Court struck down the Texas statute in a 5-4 decision, also holding that it violated the equal protection clause:
"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."
Justice William Brennan, writing for the majority, characterized this situation as one "imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control [and which] suggests the kind of 'class or caste' treatment that the Fourteenth Amendment was designed to abolish."
The Court found the state's theory to be "nothing more than an assertion that illegal entry, without more, prevents a person from becoming a resident for purposes of enrolling his children in the public schools."
Supreme Court Case Following Plyler
Almost immediately after Plyler, the Supreme Court heard Martinez v. Bynum, which involved a U.S. citizen child of unauthorized Mexican parents who had left the child in the care of the child's adult sister in a Texas town. At issue was the Texas law that allowed public school districts to deny tuition-free admission to minors living apart from their parents if the child lived in the district mainly to attend school for free.
This time, the Court determined that the child's domicile was not in Texas, a principle of traditional family law, which holds that unemancipated children officially reside where their parents live. In this instance, the child was not a legal charge of his sister, hence he could not be considered a "resident" of the Texas school district.
The Court, in an 8-1 decision issued in 1983, found that the equal protection clause had not been violated as the state could restrict tuition-free admission to bona fide residents.
Martinez v. Bynum did not limit Plyler, and the Supreme Court has not decided any other K-12 residency-related immigration case since 1983.
Direct Challenges to Plyler
Plyler has faced two direct challenges: California's Proposition 187 in 1994 and the Gallegly amendment to federal legislation in 1996.
In 1994, California voters approved a referendum, Proposition 187, that would have denied virtually all state-funded benefits — including public education — to unauthorized Californians.
Proposition 187 would have gone further than the original Texas statute in Plyler because it would have enacted an absolute ban on these children, and would not have even allowed school districts to charge tuition for enrolling undocumented children.
In addition, it would have required school authorities to report unauthorized parents or guardians. The language would have arguably required authorities to report unauthorized (or apparently unauthorized) parents or guardians of enrolled citizen children.
In a complex but authoritative opinion in 1997, the trial judge stopped multiple sections of Proposition 187 from being implemented and subsequently struck down virtually all of the provisions. The judge found that Plyler rendered the educational provisions unconstitutional.
By the end of the long legal process, California statutes had been amended to safeguard Plyler: Section 1643 of the California Education Code reads, "Nothing in this chapter may be construed as addressing alien eligibility for a basic public education as determined by the Supreme Court of the United States under Plyler v. Doe."
The Gallegly Amendment
In 1996, Congress passed two pieces of legislation targeting immigrants: the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which dramatically changed previous enforcement procedures, and welfare reform (Personal Responsibility and Work Opportunity Reconciliation Act), which barred most noncitizens from receiving certain federal welfare benefits.
That year, Representative Elton Gallegly (R-CA) proposed legislation that would have allowed states "to deny public education benefits to certain aliens not lawfully present in the United States" or to charge these students tuition for public school enrollment, as Texas had done in 1975. While Plyler had limited the ability of states to do what Texas had attempted to do, it did not bar the federal government from doing so.
The Gallegly Amendment drew sufficient negative attention to force its withdrawal from the other legislative proposals, a number of which were enacted. Even the two conservative Republican senators from Texas, Phil Gramm and Kay Bailey Hutchison, publicly signaled their opposition to repealing Plyler. Then-President Bill Clinton indicated he would veto any version that would overturn Plyler's holding.
The Gallegly Amendment also did not appeal to public school officials and teachers, the groups most closely identified with the issue. By 1996, after more than a decade of living with Plyler, educators had made their peace with its requirements and had come to accept the decision and contributed to educating these children.
Indirect Legal Challenges
Since the late 1990s, the real contests over Plyler have shifted to the everyday school level. These include school board actions to require student or parent Social Security numbers, school requests for driver's licenses to identify parents, additional "registration" of immigrant children, "safety notification" for immigrant parents, separate schools for immigrant children, and other policies and practices designed to identify immigration status or single out unauthorized children.
Some of these policies affect Latino children disproportionately, but several of them have continued to single out children on immigration grounds and thus directly undermine their enrollment status.
For example, an Illinois school district lost a case related to these issues in state court in 1997. In Joel R. v. Mannheim Middle School Dist., a U.S. citizen child, living with his aunt but who previously lived with his parents in Mexico, was found to be a bona fide resident for the purpose of attending school tuition-free. In the process that led to the case, a school district official told the aunt that she needed to obtain legal guardianship in an American court and that the child could not be admitted to the school if the child's mother was not a legal resident of the United States.
Texas since Plyler
Between 1990 and 2008, the growth of the immigrant population in Texas — 155 percent, from about 1.5 million to 3.9 million, according to the U.S. Census Bureau — outpaced the rate for the nation overall (92 percent). Mexican immigrants made up about 59 percent of the state's immigrants in 1990 and about 62 percent in 2008. Nearly a third of the state's children under 18 resided in a family with at least one immigrant parent.
Given these statistics, more pushback against Plyler might be expected. Yet with rare exceptions, most of them along the Mexican border, virtually all school districts in Texas have accommodated unauthorized students or at least have not openly opposed their enrollments.
This attitude is likely due to a combination of factors. One is the rising electoral representation of Mexican American legislators and others who see no reason to oppose this development or to defy the Court's ruling.
In addition, with a school finance system that funds school systems on a complex formula that counts students in attendance, most legislators and school board members have determined it is foolish to vote against the fiscal interests of their constituents.
Even Superintendent James Plyler, long-retired from the Tyler schools, recanted his earlier opposition to the enrollment of the children.
In 2007, on the 25th anniversary of the Plyler decision, he told the Dallas Morning News, "..."It would have been one of the worst things to happen in education — they'd cost more not being educated. Right after we let those youngsters in, I was pleased."
Plyler and Public Universities
Plyler does not extend to college or other postcompulsory schooling, but it set the stage for a battle at the postsecondary level. As the number of unauthorized children graduating from high school and applying to college began to grow, some public higher education institutions and states began in the 1990s to impose or employ residency restrictions that precluded the unauthorized from qualifying as in-state residents for the purpose of lower tuition fees.
Such restrictions have effectively reprised Plyler at the university level. In some cases, unauthorized students must pay the same tuition as international students.
Ten states — including traditional immigrant gateways like California, Illinois, New York, and Texas, as well as newer destinations like Nebraska and Kansas — allow unauthorized college students to establish residency and to pay the lower, in-state tuition.
Private institutions, which traditionally do not base tuition on state residency, have either allowed unauthorized students to enroll or held that they could not do so, on the grounds that they could lose their ability to issue visa documents that traditional international students use.
But such policies affect few unauthorized students — given their many educational disadvantages, their ineligibility to receive most state aid and any federal financial assistance, and their inability to work while in school.
A number of cases around in-state tuition have arisen, both to force states to enact residency provisions and to challenge the states that have done so.
An important one, Martinez v. Regent of the University of California, is under review by the California Supreme Court, which has scheduled arguments in fall 2010. U.S. citizens who did not meet the state's residency requirements and who were required to pay nonresident tuition for California's public universities/colleges are challenging the state's statute that allows certain in-state unauthorized students to pay in-state rates.
As the largest state in the country, with the largest number of unauthorized students (perhaps several thousand), how California goes will have important effects on in-state tuition statutes nationally.
In addition, although the proposed DREAM Act, which would give legal status to unauthorized young adults who complete two years of college or military service, is stalled at the federal level, there is some traction evident in the comprehensive immigration reform debate about the fate of these students.
Area Where Plyler Could Be Challenged
The issue of residency and unauthorized students, long dormant, could become a larger issue. A small number of U.S.-Mexico border school districts have begun since about 2009 to police enrollments to ensure families are actually residing in the school boundaries, rather than sending their children to the schools across the bridges that span the two countries.
A small wedge between Plyler and Bynum v. Martinez could allow genuinely resident, albeit unauthorized or even mixed-nationality families, to live in the district. But that wedge may not protect similar children who do not live with their families in the district attendance zones or who are not fully or properly authorized to reside with families who do reside in the school zones.
The Plyler case had indicated that the unauthorized may establish domicile in the country, a much larger issue than that presented in Martinez, where the child's parents had not established the requisite residence in the school district. The Martinez holding also loops back to Joel R. v. Mannheim Middle School Dist.
Due to the financial pressures many border school districts find themselves in, school officials and local elected officials may feel they can move against enrolling unauthorized children not residing in the district, without risking electoral disapproval or bad press.
Such officials would likely feel emboldened should the residency issue become entwined with increased border immigration security, the safety of the children, and the smoldering drug interdiction violence and general militarization of the U.S.-Mexico border.
Nonetheless, schools are not police, and education officials acting as if they are immigration authorities may drive unauthorized parents even deeper and could undermine parent-school relationships.
The scholarly narratives that have examined Plyler have shown how tenuous the decision was in the first place, with a substantial dose of luck and persistence and a powerful backstory of innocent children.
Scholars who have looked carefully and thoughtfully at the case have determined it to be sui generis (unique), not so much limited to its facts but as possessing weak doctrinal force and little constitutional significance. It has not affected many subsequent cases, and no related cases have come before the Supreme Court since then.
Moreover, political events since 1982 have not led to serious challenges on legislative fronts, even as Plyler has always been vulnerable to federal legislation on the education of unauthorized children. Since the Gallegly proposal, such efforts at the federal level have not surfaced in a serious vein.
With the exception of California's 1994 ballot initiative, no serious state actions have threatened their educational access in the nearly two decades since LULAC v. Wilson.
Notwithstanding, immigrant advocates have had to relitigate and shore up a number of corollary and subsidiary issues flowing from Plyler; on the whole, they have stopped most of the secondary direct and diagonal threats, such as policies affecting immigrant youth. Indeed, the record shows wide and deep accommodation to unauthorized children at individual school, district, and state levels — even as federal and state efforts to enact stricter employment legislation have increased.
There is a broad range of postsecondary issues. Most of the states with large numbers of unauthorized school children, and even some with few such students, have facilitated their enrollment in the public colleges and universities.
The DREAM Act's near-passage in 2007 — coupled with recent visibility of unauthorized college students seeking its passage and fewer deportations of such students under the Obama administration — suggests the widespread public acceptance of these children in the polity. These are surely markers of how deeply the roots of Plyler have reached into the country's soil.
Baird, Vanessa. 2007. Answering the Call of the Court. Charlottesville, VA: University of Virginia Press.
Belejack, Barbara. 2007. A Lesson in Equal Protection: The Texas cases that opened the schoolhouse door to undocumented immigrant children. Texas Observer, July 12, 2007. Available online.
Borkowski, John W. 2009. Legal Issues for School Districts Related to the Education of Undocumented Children. Washington, DC: The National School Boards Association and the National Education Association. Available online.
Bowers, Faye. 2007. In Growing Cities, a Loss of Students; Schools Aren't Sure Why Enrollment is Down. Christian Science Monitor, September 24, 2007.
Cal. Educ. Code § 1643.
Del Bosque, Melissa. 2009. Child X-ing: Del Rio's Controversial Crackdown on Border-crossing Students. Texas Observer, December 11, 2009, 8-13. Available online.
Dotinga, Randy and Mary Know Merrill. 2008. Schools Crack Down on Students Living in Mexico. Santa Fe New Mexican, May 27, 2008.
Doty, Roxanne L. 2009. The Law into Their Own Hands: Immigration and the Politics of Exceptionalism. Tucson: University of Arizona Press.
Feldman, Paul. Texas Case Looms Over Prop. 187's Legal Future. Los Angeles Times, October 23, 1994.
Fischer, Howard. 2009. Sheriffs Want to Test Immigration Ruling. East Valley/Scottsdale Tribune, April 27, 2009.
Joel R. v. Manheim Middle Sch. Dist., 656-657.
Lopez, Maria Pabon. 2005. Reflections on educating Latino and Latina undocumented children: Beyond Plyler v. Doe. Seton Hall Law Review 35 (4). Available online.
Lopez, Maria Pabon and Gerardo R. Lopez. 2010. Persistent Inequality: Contemporary Realities in the Education of Undocumented Latina/o Students. New York: Routledge.
LULAC v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995); Gregorio T. by and through Jose T. v. Wilson, 59 F.3d 1002 (9th Cir. 1995); LULAC v. Wilson, 997 F. Supp. 1244 (C.D. Cal.1997).
Martinez v. Bynum, 461 U.S. 321 (1983).
McNutt, Michael. 2010. Bill seeks non-U.S. students' details. The Oklahoman, February 25, 2010.
Nunez, Claudia. 2010. California Border Schools to Ask Students for Papers. New American Media, August 27, 2010. Available online.
Olivas, Michael A. 2005. The Story of Plyler v. Doe, The Education of Undocumented Children, and The Polity. In Immigration Stories, eds. David Martin and Peter Schuck. Eagan, MN: Foundation Press. Available online.
———. 2008. Lawmakers Gone Wild? College Residency and the Response to Professor Kobach. SMU Law Review 61 (1).
———. 2009. Undocumented College Students, Taxation, and Financial Aid: A Technical Note. Review of Higher Education 32 (3).
———. 2010. The Political Economy of the DREAM Act and the Legislative Process: A Case Study of Comprehensive Immigration Reform. Wayne Law Review 55.
Plyler v. Doe, 457 U.S. 202 (1982). Available online.
Preston, Julia. 2010. Students Spared Amid an Increase in Deportations. New York Times, August 8, 2010. Available online.
Roberts, Michelle. 2009. Superintendent Tells Mexican Residents Attending U.S. Schools: Prove Texas Residency or Leave. Chicago Tribune, Sept. 21, 2009.
Schrag, Philip G. 2000. A Well-Founded Fear: The Congressional Battle to Save Political Asylum in America. New York: Routledge.
Tex. Educ. Code Ann. § 21.031 (Vernon Supp. 1981).
Unmuth, Katherine Leal. 2007. 25 Years Ago, Tyler case .opened schools to illegal migrants, Dallas Morning News, June 11, 2007.