gov. Greg Abbott wants Texas to challenge a 1982 US Supreme Court ruling that requires states to offer free public education to all children, including those of undocumented immigrants.
That ruling, known as Plyler v. Doe, struck down a Texas law that had denied state funding to educate children who had not been “legally admitted” to the United States.
It’s time, Abbott told a conservative radio host Wednesday, for Texas, to try once again to limit the state’s responsibility to educate noncitizens.
“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 versus Doe was issued many decades ago,” Abbott told host Joe Pagliarulo.
The remarks came as many Republicans celebrated the publication of a draft opinion indicating that the Supreme Court’s conservative majority appeared ready to revoke Roe v. Wade, the landmark case establishing the right to abortion.
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Although the court has yet to issue an official ruling in the case, civil rights advocates have raised concerns that the court might be amenable to other attempts to overturn established precedent, including those related to LGBTQ rights and interracial marriage.
Push from the right
Abbott raised the possibility of challenging the ruling on education during a discussion about border security after Pagliarulo, host of “The Joe Pags Show,” asked whether the state could take steps to reduce the “burden” of educating the children of undocumented migrants living in Texas.
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Addressing illegal immigration has been a major campaign topic for conservatives, including Abbott, who last year launched a border security initiative known as Operation Lone Star, deploying thousands of Texas National Guard troops and Department of Public Safety troopers to the border.
Pagliarulo suggested that illegal immigration was having an impact on the state’s public school system.
“We’re talking about public tax dollars, public property tax dollars going to fund these schools to teach children who are 5, 6, 7, 10 years old, who don’t even have remedial English skills. This is a real burden on communities. What can you do about that?” he asked.
“The challenge put on our public systems is extraordinary,” Abbott replied, blaming the Plyler v. Doe decision for forcing Texas “to bear that burden.”
When pressed about the issue during an unrelated event Thursday in Houston, Abbott said he was concerned about the expected increase in migrants entering Texas if the Biden administration ends Title 42, a Trump-era public health policy that expedited removal of migrants at the border, including those seeking asylum.
“That leads to education obligations, as well as other obligations, that are simply unsustainable and unaffordable,” Abbott said.
Abbott’s remarks drew swift, emphatic criticism from Democrats, including White House Press Secretary Jen Psaki.
“Denying public education to kids, including immigrants to this country – I mean, that is not a mainstream point of view,” she said at Thursday’s press briefing, according to the Dallas Morning News.
Democrat Beto O’Rourke, who is running against Abbott for Texas governor, said Thursday that “this is a really dark road” for the state to go down.
“Gov. Abbott is against providing public education to all the children of the state of Texas,” he said, speaking at an event in Austin. “Now he’s saying out loud what we know he’s been working on ever since he became governor, he’s trying to defund our public schools.”
Advocacy groups, including the Texas American Federation of Teachers, also weighed in.
“Children shouldn’t be punished for the political ambitions of adults. Nor should they be judged for the decisions of their parents, who oftentimes are trying to provide a life for their children that’s free from violence,” Texas AFT President Zeph Capo said in a statement.
“The Supreme Court wisely saw the benefits of providing education for immigrant children, regardless of their legal status — kids who will be educated and productive members of society,” Capo said. “Educating children isn’t a partisan decision. It’s a good economic one.”
Supreme Court weighed in
The 1982 ruling in Plyler v. Doe came seven years after the Legislature passed a law blocking state education money for children who had not been “legally admitted” to the United States. School districts also were given the power to deny enrollment to those children.
School-age children from Mexico, living in Smith County, challenged the law after the Tyler Independent School District began requiring students to pay tuition if they could not prove they were legally in the country.
A federal judge blocked the law, saying it violated the US Constitution’s guarantee of equal protection, and, after an appeals court upheld the ruling, Texas appealed to the Supreme Court.
In a 5-4 decision that is considered a landmark for the effect it had on the law and education, the high court struck down the Texas law, ruling that by denying an education to a specific group of children, Texas improperly consigned them to a lifetime of hardship for an immigration decision that was out of their hands.
“Education has a fundamental role in maintaining the fabric of our society,” Justice William Brennan wrote for the majority. “We cannot ignore the significant social costs borne by our nation when select groups are denied the means to absorb the values and skills upon which our social order rests.”
Denying an education to an isolated group of children also violates the Constitution’s guarantee of equal protection under the law by erecting a government obstacle to “advancement on the basis of individual merit,” Brennan added.
Writing in dissent, Justice Warren Burger acknowledged that “it would be folly — and wrong — to tolerate creation of a segment of society made up of illiterate persons, many having a limited or no command of our language.”
However, Burger added, that decision belongs to the political branches of government, which set policy, not the courts.
The Mexican American Legal Defense and Educational Fund, which sued to overturn the Texas law in 1977, criticized Abbott’s call.
“Greg Abbott has once more distinguished himself as one of our most irresponsible and desperate politicians,” said Thomas Saenz, president and general counsel for the organization.
“While the Supreme Court split on the constitutionality of the Texas statute challenged in Plyler, all of the justices, including then-Associate Justice William Rehnquist, agreed that the Texas law seeking to exclude undocumented children from school was bad public policy,” Saenz said .
Abbott now seeks to inflict harm “that nine justices agreed should be avoided 40 years ago,” he said.
Avenues to challenge precedent
There are a few paths for Abbott to pursue to challenge the Plyler decision.
One option would be for the Legislature to pass a bill similar to the statute that was overturned in 1982. Civil rights groups would likely respond with legal challenges that could return the issue to the Supreme Court.
The Legislature’s next regular session begins in January 2023.
Randall Erben, a University of Texas law professor, believes it’s more likely for Abbott, should he choose to take action, to direct state Attorney General Ken Paxton to file a lawsuit arguing that the federal requirement to fund the public education of all children is unconstitutional .
Richard Albert, also a UT law professor, said it might not be that easy.
“There has to be a challenge to something. You can’t challenge an existing precedent, because the court requires there to be a live controversy, a live case,” Albert said. “I don’t know if he can just say, ‘Here’s a precedent, here’s a law we don’t like and then we’re going to ask the District Court to overturn that.’ There has to be some constitutional conflict that materializes from an actual set of facts on the ground or a law or some action that’s been taken.”
American-Statesman reporter Chuck Lindell contributed to this story.