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. Plyler has wreaked havoc on public education (and school finances) ever since.
The Court's one-vote majority reached its desired result largely by side-stepping the actual wording of the 14th 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 14th 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 14th 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 14th 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] )
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 14th 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."
Federal law explicitly forbids just what Texas did. “An alien who is not lawfully present in the United States,” declares Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), “shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”
Notwithstanding this federal ban on in-state illegal-alien tuition policies, neither the Bush nor Obama administration has ever objected to such policies on supremacy-clause grounds. Even without this legislative ban, in-state tuition is far more intrusive a grab of federal lawmaking power than Arizona’s maligned SB 1070 (which officially authorizes the state’s police officers to check the immigration status of people they stop on legitimate law-enforcement grounds and whom they reasonably suspect of being in the country illegally). SB 1070 merely enforces existing federal laws. Texas’s law not only contradicts federal law, it creates precisely the patchwork of conflicting state immigration policies (i.e., amnesties in some states, not in others) which the supremacy clause is supposed to prevent.
The Texas attorney general’s effort to justify the state’s amnesty in the face of IIRIRA’s Section 505 almost laughably dodges the preemption issue with the meager argument that the “terms ‘postsecondary education benefit’ and ‘residence’ are not defined in the federal law.” His desperate defense is a reminder that once you start justifying law-breaking, however ostensibly compassionate your intentions (and one needs to ask here what position pro-amnesty Republicans would take on illegal immigration if they weren’t eager to court the Hispanic vote), you are led into further and further betrayals of the rule of law.
Help me some if you are still here.
I have read what you said a couple of times, and I’ll read it again, but could I ask this? It might make it easier when I read it again.
Are the results of Plyler vs. Doe still in effect but flawed in nature or reasoning, causing contradictions in other laws and believed by many that it should be overturned, or do we not have any of that at ALL anymore, completely done away with with no lingering consequences?
It sounds like there were some changes, but I can’t quite understand if that court case still applies or not.
Thanks for any clarification you can provide.
Excellent, excellent, it is like the Kim decision, the liberals, think the first part of the decision, about his parents were here legally, does not exist, and that it says all children, it does not.