Elena Macias

Elena.Macias@CSULB.EDU
"Professor Olivas discussion of Plyler v. Doe and its effect on the integration of
unauthorized immigrant children, its role in the college tuition debate, and its long-term
prospects appeared on the Migration Information Source website.
This article was published on Migration Information Source, September 9, 2010
Plyler v. Doe: Still Guaranteeing Unauthorized Immigrant Children's Right to Attend US
Public Schools
By Michael Olivas, University of Houston
September 2010
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 US public school from
kindergarten through 12th grade. In 1982, the US 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 US 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 US Court
of Appeals for the Fifth Circuit affirmed the decision.
The Plyler case and a similar one from Houston went to the US 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." This article is adapted from the forthcoming (2011) book by Michael Olivas, Ask
Not for Whom the School Bell Tolls, Plyler v. Doe and the Education of Undocumented
Children.
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 US 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.
Proposition 187
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 US 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 US 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. US 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 US-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 US-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.
Conclusion
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.
Sources

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 Bordercrossing 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."
I also suggest that you read No Undocumented Child Left Behind by Michael Olivas.
http://www.amazon.com/Undocumented-Child-Left-BehindSchoolchildren/dp/0814762441
Elena Macias, Ph.D., M.S.W
562-860-4878
ab540.com
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