The Right of Undocumented Alien Children to Basic Education: An Overview of Plyler v. Doe

CRS Report for Congress
The Right of Undocumented Alien Children to
Basic Education: An Overview of Plyler v. Doe
Larry M. Eig
Legislative Attorney
American Law Division
In Plyler v. Doe (457 U.S. 202 (1982)), the Supreme Court held that it was
unconstitutional for Texas to deny illegal alien children who were residing in the state
equal access to its elementary and secondary schools. Though the vote was close (5-4),
Plyler remains good law and continues to be cited for the proposition that illegal aliens
are not beyond protection under the Constitution.
However, while Plyler set limits on state power, it clearly suggested that
constitutional restrictions on the ability of states to discriminate against illegal aliens
may be influenced by Congress. The case further implied that states have broader power
to discriminate when children and basic education rights are not at stake. For example,
cases since Plyler have upheld state laws that discriminate against illegal aliens in
providing higher education.
The majority opinion. Much of the five-justice majority opinion in Plyler
addressed how strong a justification Texas needed to sustain its law. Under the Equal
Protection Clause of the fourteenth amendment, the standard generally applied to state
laws that treat different groups of individuals differently – the "rational basis" test – is a
relatively easy one for states to meet. By contrast, if distinctions among groups
disadvantage a "suspect class" or relate to a "fundamental right," the courts require that
a state show that the distinctions drawn are required by compelling state interests. This
heightened barrier has been insurmountable in public services cases.
In 1971, the Supreme Court held in Graham v. Richardson (403 U.S. 365) that state
distinctions broadly based on alienage were "suspect" and struck down residency
requirements for aliens under state welfare laws. However, the majority in Plyler held
that the more targeted class of "illegal aliens" cannot be considered a suspect class
because of the illegality of their presence here. Following earlier cases, the majority also
held that education is not a "fundamental right" for equal protection purposes,
fundamental rights being generally limited to voting and rights based in the Constitution
itself. Still, the majority was uneasy in applying a "rational basis" test to a law that it

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viewed as "impos[ing] a lifetime hardship on a discrete class of children not accountable
for their disabling status." Consequently, the majority insisted that Texas show that
"substantial state interests" underlay its discrimination.
The majority went on to find that Texas had not met this burden. The majority began
its "substantial interest" analysis by addressing whether an illegal alien's unlawful
presence as such was a sufficient basis for state discrimination. Departing from earlier
equal protection cases, the majority indicated that congressional policy could affect how
far a state may go in singling out illegal aliens for discriminatory treatment. Nevertheless,
the majority found that the federal government's treatment of illegal aliens had failed to
provide clear guidance on where the balance should lie in assessing state authority to deny
illegal aliens education. Regarding Texas's justification of its law as a deterrent to illegal
migration and a cost saver, the majority focused not so much on whether these reasons
could ever justify discriminatory treatment as on the evidence supporting them.
According to the majority, there was insufficient evidence that illegal migrants
significantly burdened Texas's economy, that denying education was a significant or
effective deterrent to entry, or that excluding illegal alien children would enhance the
quality of education available to others. The majority felt that under then current
immigration practice, many illegal children within the state were likely to remain for a
long time and possibly would adjust to a lawful status (a prediction proved true under
1986 legislation), and that creating an underclass of illiterates in the state could prove
costly in the long run in terms of welfare and crime.
The minority opinion. In the view of the four dissenting justices, the issue
"simply put, is whether, for purposes of allocating its finite resources, a state has a
legitimate reason to differentiate between persons who are lawfully within the state and
those who are unlawfully there." As is evident in this excerpt, the dissenters believed that
the appropriate equal protection analysis was the rational basis test usually applied when
neither a fundamental right nor a suspect class is involved. Therefore, in the dissenters'
opinion, Texas's discrimination could be sustained if it could show that singling illegal
aliens out for different treatment was a reasonable means of furthering the state's
legitimate fiscal ends. The dissent further found that "it simply is not irrational for a state
to conclude that it does not have the same responsibility to provide benefits for persons
whose very presence in the state and this country is illegal as it does to provide for
persons lawfully present." The dissent also cited the denial of many federal benefits to
illegal aliens as supporting state authority to discriminate.
Plyler and Congress. During the 104th Congress, the House twice approved
education restrictions on illegal alien children. These restrictions never became law.
However, the 104th Congress did pass a major new welfare reform law (P.L. 104-193) that
directly denied illegal aliens most federal, state, and local benefits, and a major new
immigration law (P.L. 104-208, Division C) that focused on curtailing illegal migration.
These and other, more recent congressional stands against the continued presence of
illegal aliens generally have been upheld by the courts. In doing so, the courts have, at
least implicitly, recognized the power of Congress to influence the legal relationship
between noncitizens and the states. Still, the courts have not ventured beyond the terms
of these recent laws to extrapolate an overriding congressional intent to overturn the
Plyler decision.