Are Immigration Officials Overturning Plyler v. Doe?

Andres J. Ortiz, Loyola Marymount University

Abstract

In 1982, the Supreme Court determined that a Texas statute, which forced children who had not been “legally admitted to the United States” to pay tuition to attend public schools unconstitutionally denied these children’s equal access to a public school education. Justice Brennan reasoned that because undocumented children are largely victims of circumstances beyond their control, it would be fundamentally unjust to deny these children equal access to a public school education. Further, that requiring undocumented children pay tuition would institute a barrier to education that would create a caste of illiterate people who would have little to no access to social mobility. Since the Plyler v. Doe decision, an estimated two million undocumented children have been educated. Recently however, federal immigration and local law enforcement officers in the Southwestern United States have instituted a new barrier to education for numerous Latino students when these officers entered public schools to enforce federal immigration law. Although the Plyler decision in itself has not been overturned, the new immigration law enforcement strategy are reinstituting a barriers to education like the ones the Plyler Court sought to eliminate. Unfortunately, this new enforcement strategy implicates a different set of constitutional questions that makes the Plyler decision inapplicable. Thus, in a tangible way the new federal immigration law enforcement strategy has overturned the spirit of Plyler.

This note analyzes three scenarios where federal immigration law has been enforced in schools; in each occasion it is evident that the race of the students played some role in the immigration inquiry. I argue that the officers’ reliance on the students’ race as a basis for suspecting illegal presence, particularly in the school context, violates these students’ Fourth Amendment rights. Emerging case law suggests that using race, even as a factor, in immigration stops- particularly in areas where there is a large concentration of that race- casts the net of suspicion so wide that it could hardly be characterized as individualized. Additionally, I argue that permitting law enforcement officials to rely, at least in part, on a students’ race violates their Fifth/Fourteenth Amendment rights. These constitutional violations create such profound barriers to education that it truly begs the question of whether Latino students are equal members of American society. Therefore, I conclude that in the interest of fulfilling the constitutional guarantees to privacy and equal standing under law, immigration law enforcement in schools should be restricted to instances where the law enforcement official possesses a warrant.