Abbott Says It’s Time to ‘Resurrect’ and ‘Challenge’ Ruling Which Allowed Children of Undocumented Immigrants to Attend Public School

In the immediate aftermath of the leaked Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization, Texas Gov. Greg Abbott (R) said Wednesday that the Lone Star State is ready to challenge a 40-year old decision requiring Texas to provide free public education to the children of undocumented immigrants.

In an appearance on The Joe Pags Show reacting to the news on the SCOTUS leak, Gov. Abbott specifically referred to the Supreme Court’s 1982 decision in Plyler v. Doe.

“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,” Abbott told host Joe Pagliarulo.

What is Plyler v. Doe?

Plyler v. Doe is a 1982 Supreme Court case in which SCOTUS struck down a 1975 Texas state statute that denied funding to public schools for the education of the non-citizen children of undocumented immigrants. The case also challenged Texas’ policy of authorizing its local school districts to deny public school enrollment to children not “legally admitted” to the country, and to charge families $1,000 per student to compensate for the lost funding due to their enrollment.

The case raised an Equal Protection Clause challenge based on Texas’s disparate treatment of the children of undocumented immigrants as compared with the that of other children within the state. The Court’s 5-4 majority sided with the children and against Texas, and held that Texas had illegally discriminated against the non-citizen children of undocumented immigrants.

The 5-4 opinion in Plyler was authored by Justice William Brennan, and joined by Justices Thurgood Marshall, Harry Blackmun, Lewis Powell, and John Paul Stevens. Chief Justices Warren Burger and Justices Byron White, William Rehnquist, and Sandra Day O’Connor dissented.

The Plyler majority specifically found that the Fourteenth Amendment guarantees equal protection under the law to all people within the United States—and that “undocumented aliens” are people.

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While SCOTUS has occasionally overturned past rulings, the instances of its having done so are very few and always noteworthy. Although the draft opinion explicitly stated that its holding was meant to apply only to the “unique” issue of abortion, the underlying message is clear: this majority is willing to upend settled law when it believes there is sufficient reason to do so—namely, when a decision is “egregiously wrong.”

Of course, public school enrollment and abortion are two very different topics. Moreover, the Plyler case raised an equal protection challenge, while Roe and Dobbs raise substantive due process claims. The Plyler court did not base its ruling on individual freedoms or the right to privacy; rather, it held that if Texas provides public education to its children, it must do so on an equal basis for all children within its borders.

Legally, there is not a great deal of direct parallel between Plyler and Dobbs. There exists no reasonable argument that Plyler created an “unworkable” precedent leading to the kind of jurisprudential chaos in Roe‘s wake that Alito railed against in Dobbs. Nor is there a parallel legal history for denying certain children public school education in the same way there is history of restricting abortion. However, Alito reasoned that because abortion is a hot-button issue, it is best left to the state-level democratic process to sort out. Illegal immigration is undoubtedly a highly politicized topic, and accordingly, there might be a similar incentive for another SCOTUS punt to state lawmakers on the issue of public schooling.

The Plyler court also left a door open for Texas by hanging some of the reasoning for its decision on the lack of evidence presented by Texas. Brennan wrote:

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Whether 2022 Texas could make the kind of evidentiary showing that might convince a court that its interests were more legitimate than 1982 Texas’ had been remains an open question.  Abbott argued on air that in the present day “the expenses are extraordinary and the times are different” than they had been in 1982. Should Abbott be able to sufficiently prove the differences, there is always the chance that the Dobbs majority, tentative as it may be, could be receptive to revisiting their predecessors’ narrow decision in Plyler.

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