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Texas Matters: Why Abbott wants Plyler v. Doe overturned

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When a leaked draft of a Supreme Court opinion revealed that the high court is ready to overturn Roe v. Wade, there was a realization that America is dealing with a different kind of Supreme Court. The extremist conservative majority would be comfortable with overturning landmark decisions that were considered settled law.

Roe protects abortion rights in the nation and saw reproductive privacy as an extension of the right to privacy in the Constitution’s Fourth Amendment. Beyond that, many were wondering if marriage equality was next, or even access to contraception protection.

When on a conservative radio talk show, Gov. Greg Abbott was asked what Supreme Court ruling he’d like to see overturned and he picked 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 said.

It’s not a Supreme Court case that many would see as a easily recognizable marquee cause for the right wing, nevertheless, it is an important and ground breaking decision that has deep roots in Texas.

The 1982 United States Supreme Court case Plyler v. Doe held, in a 5–4 decision, that states such as Texas could not charge tuition to undocumented children for free public K–12 education or prevent them from enrolling in public schools in districts where they resided.

The case is considered to be the high-water mark of immigrant rights in the United States and is likely among the most important educational and immigration cases decided in Texas.

The back story for Plyler starts in 1975, when the Texas legislature passed a little noticed education statute.

The initiative, section 21.031 of the Texas Education Code, allowed school districts to charge as much as $1,000 in 1975 rates to undocumented children or children of undocumented parents.

There were no public hearings for this change in the education code. It passed by voice vote, with no debate and no legislative history and there were no studies of how many students would be affected, how much money it would cost or save the state.

As the change went into practice – people couldn’t help but notice and there began to be some public resistance across the state. Charging the low income families tuition for what was generally referred to as “free public schools” became a controversy.

In 1977, 8-year-old Laura Alvarez was preparing to enter the third grade — but then she was told she could no longer attend school. The trustees of the Tyler Independent School District voted to charge undocumented immigrant children $1,000 a year in tuition — a fee that the Alvarez family could not afford for each of their five children.

This fee was tantamount to expulsion. Most of their parents worked in agriculture or at Tyler factories or restaurants, earning only about $4,000 each year.

On the first day of school in September 1977, children were turned away at schoolhouse doors across the Tyler School District and in other public school districts if they could not produce birth certificates.

In some parts of Texas communities responded by organizing free or low cost evening classes for the students with volunteer teachers. Also some private Catholic schools admitted the turned-away children with free or low cost tuition.

The issue did not achieve national prominence until the late 1970s, when the San Antonio office of the Mexican American Legal Defense and Educational Fund (MALDEF) took up the federal case.

MALDEF attorneys filed a class action lawsuit on Sept. 6, 1977, for the case that ultimately went to the U. S. Supreme Court under the name of Plyler v. Doe. James Plyler was the Tyler ISD superintendent.

On Sept. 14, 1978, after a two-day hearing, Judge William Wayne Justice issued his opinion, striking down section 21.031 as applied to the Tyler ISD. He found that the state’s vague justifications for the statute — that this would save money for the schools and would discourage illegal immigration — were not rational, and violated equal protection and that the attempt to regulate immigration at the state level violated the doctrine of preemption, which holds immigration to be a function solely of federal law.

On appeal In the Fifth Circuit Court of Appeals the decision was affirmed and in May 1981 the U. S. Supreme Court agreed to hear the matter. It was argued on Dec. 1, 1981.

Richard Arnett, a Texas assistant attorney general stood before the court and explained why Texas needed to adopt this policy. He cited the proximity of the Mexican border and influx of illegal immigration from Mexico.

Justice Thurgood Marshall seemed the most skeptical of the state’s position. He stumped the attorney for Tyler ISD when he asked if Texas could deny public education to children who were in the country without authorization, what else could they be denied?

The Supreme Court by a 5-4 margin struck down the down the statute.

Prior to Plyler, the Supreme Court had never taken up the question of whether undocumented immigrants could seek Fourteenth Amendment equal protection. The Supreme Court had long held that they were “persons” for purposes of the Fourteenth Amendment and were protected by the due process provisions of the Fifth Amendment.

However, Texas argued that because undocumented children were not “within its jurisdiction,” they were not entitled to equal protection.

Larry Daves was one of the attorneys representing the undocumented school children in Plyler V Doe. Daves spent much of the ’70s and ’80s doing civil rights and labor law in East Texas.

Overturning Plyler v. Doe would be catastrophic according to Jaclyn Kelley-Widmer, professor of immigration law at the Cornell Law School. She directs the Immigration Law and Advocacy Clinic and is an expert on the Deferred Action for Childhood Arrivals (DACA) program.

A final note on Plyler v Doe from Jimmy Plyler, the Tyler ISD superintendent for whom the case takes its name.

As the years passed and he was able to see these children that he sought to bar from the classroom grow up and contribute to society and become American citizens.

In 2007, Plyler told Education Week he was glad the district had lost the case.

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David Martin Davies can be reached at dmdavies@tpr.org and on Twitter at @DavidMartinDavi