Plyler v. Doe in Review: The Insecure Future of the Right to Education for the Undocumented Post-Dobbs

Blog Post | 111 KY. L. J. ONLINE | September 7, 2022

Plyler v. Doe in Review: The Insecure Future of the Right to Education for the Undocumented Post-Dobbs

By: Annie Deitz, Staff Editor, Vol. 111

In May of 2022, Politico published a leaked draft of the Supreme Court’s decision in the case Dobbs v. Jackson Women’s Health Organization, in which the Court overturned the landmark abortion case Roe v. Wade.[1] In the weeks following the leak, Texas Governor Greg Abbott stated that in the wake of overturning Roe, the Court should reexamine and similarly overrule Plyler v. Doe, a landmark Supreme Court case from 1982 which provided undocumented children the right to attend public schools.[2] Abbott later elaborated at a campaign event, explaining that he believed the case should be overturned due to increasing costs that undocumented students have supposedly placed on the state of Texas in recent years.[3]

The Bases for Legal Claims in Dobbs Compared to Plyler

Since Roe was officially overturned by the Dobbs decision on June 24, 2022,[4] concerns have grown about an insecure future for precedential court decisions.[5] While Justice Samuel Alito, author of the majority opinion, claimed the decision was narrowly tailored to abortion,[6] Justice Clarence Thomas argued in his concurring opinion that the Dobbs decision endangers any “substantive due process” case decided by the Court, enumerating specifically Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges.[7]

In Plyler, the Court struck down a Texas state law withholding funds from districts that permitted children who were not “legally admitted” into the United States to attend public schools.[8] The Court held the Texas law abridged the childrens’ right to receive an education and violated the Equal Protection Clause of the 14th Amendment.[9] Notably, however, the Court made its findings based on the lack of a “substantial state interest” countering the education restriction, leaving room for future “substantial state interests” to outweigh the right.[10] 

An Indirect Threat to the Right to Education

On face value, the Dobbs ruling seems not to immediately threaten Plyler in the same way it does cases like Griswold, Lawrence, and Obergefell. The right of undocumented children to attend public schools is supported by the Equal Protection clause; the right to an abortion is decidedly a “substantive due process” right.[11] Yet, Governor Abbott’s interest in litigation reexamining the Plyler holding in the wake of Dobbs still endangers the future of the undocumented children. During an unprecedented time in which established individual rights are being tossed aside by the American judicial system, it logically follows that the next to be tossed are those affecting some of the most marginalized members of our society.

In the Plyler decision, the Court decided to strike down the Texas statute after balancing the abridgment of the children’s right to education against a “substantial state interest.”[12] The court lands definitively, saying the rights abridged derive from no “substantial state interest.”[13] The Court, however, explains that they do believe undocumented migrants pose a burden on states, and hint at the fact that they believe those responsible for the “unlawful conduct” associated with their presence in the United States might not be guaranteed protection under the Equal Protection Clause, particularly when those rights are weighed against a “substantial state interest.”[14]

The Dobbs decision piqued Governor Abbott’s interest in revisiting Plyler through continued litigation. The current Supreme Court, whose Justices maintain more right-leaning tendencies, might decide the state of Texas does have a legitimate interest in lowering costs by refusing education to undocumented children.[15] At the aforementioned campaign event, Governor Abbott argued that supporting public education for more undocumented children is more of a burden on the state now than it was when Plyler was decided in 1982.[16] He claims that higher levels of immigration from diverse countries, requiring the government to hire teachers that know “all these multitude of different languages,” is a considerable drain on state resources.[17]

Further, even though the rights at issue in Plyler and Dobbs derive from different legal bases under the 14th Amendment, the Dobbs precedent liberally applied could put at risk other unenumerated rights established through judicial precedent. For example, in his concurrence, Justice Thomas explains that reexamining the substantive due process cases requires reanalyzing where and if rights are protected in other sections of the 14th Amendment.[18] While not explicitly discussing the Equal Protection Clause, there’s no reason to think that cases like Plyler won’t be at issue in the future.[19] Historic progressive victories securing rights for marginalized communities through the 14th Amendment are in danger. 

Conclusion

The Dobbs decision might not directly threaten Plyler. Nonetheless, the combination of controversy stirred by Governor Abbott and the instability of 14th Amendment rights in the Supreme Court that is fresh off overturning Roe makes the future of an undocumented child’s right to public education anything but safe. June 13th of 2022 marked Plyler’s 40th anniversary.[20] Advocates, scholars, and anyone respecting precedent might have a considerable amount of work ahead to ensure the case lasts another 40 years.

[1] Politico Staff, Read Justice Alito’s Initial Draft Abortion Opinion Which Would Overturn Roe v. Wade, Politico (May 2, 2022 9:20 PM), https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504.

[2] Texas Public Radio, Texas Matters: Why Abbott wants Plyler v. Doe Overturned (May 16, 2022), https://www.tpr.org/podcast/texas-matters/2022-05-16/texas-matters-why-abbott-wants-plyler-v-doe-overturned (quoting Governor Abbott as saying “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 v. Doe was issued many decades ago.”).

[3] Kate McGee, Gov. Greg Abbott Says Federal Government Should Cover Cost of Educating Undocumented Students in Texas Public Schools, The Texas Tribune (May 5, 2022), https://www.texastribune.org/2022/05/05/greg-abbott-plyler-doe-education/ (explaining that Abbott believes the federal government should provide additional funding for undocumented students or permit the states to bar those students from attending school).

[4] Dobbs v. Jackson Women’s Health Association, 142 S.Ct. 2228, 2244 – 85 (June 24, 2022).

[5] Bernadette Meyler, Dobbs and the Supreme Court’s Wrong Turn on Constitutional Rights, Bloomberg Law (June 24, 2022), https://news.bloomberglaw.com/us-law-week/the-supreme-courts-wrong-turn-on-constitutional-rights.

[6] Dobbs, 142 S.Ct. at 2277-78 (“[n]othing in [the Court's] opinion should be understood to cast doubt on precedents that do not concern abortion.”).

[7] Id. at 2301 (Thomas, J., concurring) (noting that the enumerated cases, which establish the right to contraception, privacy in same-sex intimate relationships, and same-sex marriage respectively, might be invalid due to their basis from the Due Process Clause of the 14th Amendment).

[8] Plyler v. Doe, 457 U.S. 202, 230 (June 15, 1982).

[9] Id.

[10] Id.

[11] Id; Dobbs, 142 S. Ct. at 2247.

[12] Plyler, 457 U.S. at 230.

[13] Id.

[14] Id. at 219. (“Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct.”).

[15] See David Leopold, The Anti-Immigrant Judicial Pipeline Keeps Gushing, America’s Voice (Feb. 22, 2022), https://americasvoice.org/blog/the-anti-immigrant-judicial-pipeline-keeps-gushing/ (detailing some of the anti-immigrant and sometimes xenophobic judicial history and connections current Supreme Court justices hold).

[16] Kate McGee, Gov. Greg Abbott Says Federal Government Should Cover Cost of Educating Undocumented Students in Texas Public Schools, The Texas Tribune (May 5, 2022), https://www.texastribune.org/2022/05/05/greg-abbott-plyler-doe-education/.

[17] Id.

[18] Dobbs v. Jackson Women’s Health Association, 142 S. Ct. 2228, 2301 (June 24, 2022) (Thomas, J., concurring).

[19] Id. (“For example, we could consider whether any of the rights announced in this Court's substantive due process cases are ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights.”).

[20] Children at Risk, C@R Celebrates Plyler V. Doe and DACA on June 15th, (June 15, 2022), https://childrenatrisk.org/plyler-daca-2022-anniversary/.