Resurrecting Schools as Safe Havens the Immigration System and Its Impact on Children's Education in the United States

• Publication year: 2019

Hayley Degnan^*

Abstract: In 1975, the State ofTexas enacted § 21.031 of the Texas Education Code, permitting school districts to impose enrollment requirements that effectively barred undocumented children and children in mixed-status families from attending public schools. In a 5—4 decision in Plyler v. Doe, the Supreme Court struck down § 21.031 as unconstitutional under the Fourteenth Amendment, holding that there was "no rational justification for penalizing these children for their presence in the United States." Although the right granted to children by the Plyler decision withstood direct challenges, current enforcement procedures within the U.S. immigration system have implicitly undermined, and arguably overturned, the right undocumented children and children in mixed-status families have to receive a public education, constructing physical and psychological barriers that prevent these children from accessing public schools. However, many reform measures, each with their own challenges and limitations, may help break down these barriers and reaffirm the education system imagined by the Plyler decision.

Introduction

In the landmark case Brown v. Board of Education, a unanimous Court struck down school segregation on the basis of race under the Fourteenth Amendment, reasoning that "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."¹ Nearly 30 years later, in Plyler v. Doe, the Court addressed whether the Fourteenth Amendment extended to a new class of children and their denial of a public education.² In a 5—4 decision, the Court struck down statutory enrollment requirements that effectively barred undocumented children from accessing public schools in Texas.³ It held that states cannot deny a child a public education on the basis of his or her immigration status.⁴ Thus, Plyler not only established that a child's undocumented status is "irrelevant to the child's entitlement" to a public education, but it also embodied a transcendent principle concerning how this country protects all children through their access to an education.⁵

However, current enforcement procedures within the U.S. immigration system implicitly attack the foundation set forth in Plyler, jeopardizing the ability of undocumented children to access an education and the ability of children in mixed-status families (who have one or more undocumented parents) to access an education as well.⁶

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First, the Trump administration departed from enforcement priorities that allowed government personnel to exercise prosecutorial discretion when pursuing groups of undocumented immigrants, including parents and chil-dren.⁷ Second, U.S. Immigration and Customs Enforcement ("ICE") changed its interpretation of its policy regarding enforcement at sensitive locations. While this policy traditionally ensured that enforcement actions did not occur at locations such as schools, recently ICE interpreted this policy to permit arrests near schools.⁸ Third, agency discretion to bring actions against schools for violating enrollment laws allowed schools to adopt practices aimed at discouraging the attendance of children based on their immigration status.⁹

These three practices have bred a socially destructive fear of deportation among families, enacting both physical and psychological barriers that prevent children from accessing an education.¹⁰ Many undocumented children and children in mixed-status families forego attending school as a result of enforcement actions, their family's fear following reports of immigration raids near schools and unlawful school enrollment procedures.¹¹ Further, many undocumented children and children in mixed-status families face psychological obstacles that keep them from accessing an education, even when they are physically present in the classroom.¹² Undocumented children and children in mixed-status families routinely experience toxic acculturative stress in response to the threat of deportation or their parent's actual deportation that results from current enforcement procedures.¹³ Such psychological impairment can lead to declines in children's academic performance and creates emotional and behavioral problems for children in the classroom.¹⁴ Thus, current immigration enforcement procedures have undercut the equal access to education afforded to undocumented children under Plyler.

Proposals to reform immigration enforcement procedures and the education system have the potential to resurrect the values protected by Plyler and ensure that schools remain a safe haven for all children. However, many of these proposals may face obstacles impeding their ability to come to fruition. First, advocates may attempt to bring Plyler-based challenges to extend the decision's constitutional protections; yet allowing the Court to revisit Plyler risks restricting that decision further.¹⁵ Second, immigration enforcement agencies can reestablish specific enforcement priorities and more closely define the sensitive location policy to limit enforcement actions occurring near schools. These proposals mark a departure from the Trump administration's prerogative to reach peak numbers of deportation, which makes them unlikely for the administration to pursue.¹⁶ Third, schools can work with children and families to increase their knowledge of the immigration system and their rights. While this last proposal may represent the easiest reform measure to enact, it would merely alleviate some of the burden on families retroactively rather than proactively enhancing protections afforded to undocumented children.¹⁷

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Overall, Plyler recognized the importance of protecting children in the United States through equal access to education. This principle now stands in tension with the current enforcement procedures used within the U.S. immigration system, suggesting that either such procedures need to change to uphold the values embodied by the Plyler decision, or the country's commitment to equal access to an education for all children has been implicitly overturned.

Plyler v. Doe: The Right of Undocumented Children to Access a Public Education in the United States

The Plyler Decision

In 1975, the State of Texas enacted § 21.031 of the Texas Education Code, which permitted school districts to charge undocumented children tuition and impose additional enrollment requirements to bar children from attending school based on their or their family's immigration status.¹⁸ In Tyler, Texas, officials, including Superintendent James Plyler, did not initially choose to charge its undocumented children tuition or enact other enrollment barriers. However, following concerns that Tyler had become a haven for undocumented children driven away from other towns, its schools began requiring parents to pay $1,000 per child for an undocumented child to remain in Tyler's school system.¹⁹ Four families, with sixteen children total who had been barred from attending Tyler's public schools, filed suit against Superintendent Plyler and the School District in the District Court for the Eastern District ofTexas. The State of Texas intervened as a defendant.²⁰

Even before trial, the plaintiffs in Plyler had to overcome challenges to bring their case. For instance, out of concern that the families might be deported, the presiding judge, Judge Justice, allowed the plaintiffs' names to be withheld in an effort to protect their identities.²¹ Such measures had not been taken to protect plaintiffs in a previous case challenging § 21.031, leaving those families at a greater risk for deportation.²² Yet even with their names redacted, the Plyler families remained in fear of deportation. In fact, the U.S. Attorney reportedly asked the Immigration and Naturalization Services (INS) to conduct sweeps (or raids) in the area to intimidate the families into dropping the suit.²³ In the end, the families decided to go ahead with the suit and no sweeps occurred.²⁴

On September 11, 1977, Judge Justice issued a preliminary injunction, enjoining Tyler from enforcing § 21.031.²⁵ A year later, on September 14, 1978, Judge Justice struck down § 21.031, finding that the statute violated the Fourteenth Amendment because the justifications given for the district's enrollment requirements were not rational.²⁶ Years later, in response to the Plyler polity, Judge Justice explained: "As a result of that decision, I think probably several million children got an education. And that's the case I'm most proud of."²⁷

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Judge Justice's initial decision sparked additional suits challenging the constitutionality of § 21.031, filed in the Southern, Western, and Northern Districts of Texas, as well as an appeal filed by the defendants in the initial Plyler decision.²⁸ When the initial Plyler case reached the Fifth Circuit, the court upheld Judge Justice's decision on the constitutionality of the statute under the Equal Protection Clause of the Fourteenth Amendment.²⁹ It concluded that the statute was "constitutionally infirm regardless of whether it was tested using the mere rational basis standard or some more stringent test."³⁰ The Supreme Court granted certiorari and consolidated the case with appeals from other § 21.031 decisions under the designation Plyler v. Doe.³¹

In its 5—4 decision, the Supreme Court first rejected the State's argument that undocumented immigrants are "not persons within the jurisdiction" of Texas nor subject to equal protection therein, holding instead that undocumented persons are guaranteed the protections in the Fifth and Fourteenth Amendments.³² The Court then turned to whether the Texas statute violated the children's Fourteenth Amendment rights.³³ Although the Court recognized that undocumented immigrants do not represent a suspect class and education is not a fundamental right under the Constitution, it nonetheless held that states cannot deny a child a public education on the basis of his...