|To: Professor Staudt
From: Ruth Lopez, Ana Lusero, and Arnold Hinojosa
RE: Case Study of Plyler v. Doe
Introduction: Overview and Historical Context of Plyler v. Doe
Certain Supreme Court cases, such as Plyler v. Doe, do more than simply answer narrow questions of law. They help to define core principles of our society. The decision issued by the Supreme Court in Plyler allowed for the resolution of the immediate issue in dispute: whether the State of Texas could enact laws denying undocumented children free access to its public schools. However, it also dealt with a larger public issue: how this society will deal with its alien children. At its core, Plyler raised the question of who should pay to educate children whose parents migrated to the United States illegally. In the process, Plyler became a central case for themes such as fairness for children, equal access to education, the integrity of U.S. borders, and the 14th amendment rights of undocumented aliens living in the U.S. Moreover, cases such as Plyler do not take place in a vacuum. Inevitably, they are shaped by the shifting social and political forces of the time.
Plyler v. Doe resulted from a convergence of factors during the 1970’s and early 1980’s. Beginning with FDR’s New Deal and accelerating with the implementation of LBJ’s “Great Society,” the amount of benefits or “entitlements” provided to citizens through state and federal programs increased dramatically. Chief among these benefits was public education. Additionally, during the 1960’s and 1970’s, immigration to the U.S., including illegal immigration from Mexico, rose considerably. For the first time, the specter of immigrant masses flooding the Southern U.S. border embedded itself in the national consciousness. Meanwhile, during this period, America was also facing its worse economic crisis in decades. “Stagflation,” recession, and the gas crisis of the 1970’s all contributed to an increasingly apprehensive national outlook.1 Amidst this atmosphere of change and uncertainty, the legislation which would give rise to Plyler v. Doe was born.
Section 21.031: Legislative Reaction to Undocumented Children in Public Schools
In 1975, the State of Texas enacted section 21.031 of the Texas Education Code. In effect, the Legislature amended the code to allow school districts to charge tuition to undocumented children. The Legislature conducted no hearings on the matter, and no published record explaining the origin of the amendment exists. According to University of Houston law professor, Michael Olivas, his discussions with legislators from that time indicate that the revision was inserted into a larger, more routine education bill at the behest of some border-area school superintendents who had contacted their local representatives regarding the matter.2 The statute in pertinent part reads:
(a) All children who are citizens of the United States or legally admitted aliens and who are over the age of five years and under the age of 21 years on the first day of September of any scholastic year shall be entitled to the benefits of the Available School Fund for that year.
(b) Every child in this state who is a citizen of the United States or a legally admitted alien and who is over the age of five years and not over the age of 21 years on the first day of September of the year in which admission is sought shall be permitted to attend the public free schools of the district in which he resides or in which his parent, guardian, or the person having lawful control of him resides at the time he applies for admission.
(c) The board of trustees of any public free school district of this state shall admit into the public free schools of the district free of tuition all persons who are either citizens of the United States or legally admitted aliens and who are over five and not over 21 years of age at the beginning of the scholastic year if such person or his parent, guardian or person having lawful control resides within the school district.
Although the statute allows school districts to charge tuition to undocumented children, not all districts in the state chose to do so. In 1980, as litigation was ongoing, Houston’s Gulf Coast Legal Foundation prepared a random survey. Six of the school districts polled with more than 10,000 students reported that their districts would admit undocumented students without charge, six would charge tuition, eleven would exclude them entirely, while the rest either did not respond or did not know how they would respond. Meanwhile, the state’s largest school district, Houston Independent School District (with over 200,000 students), and a smaller one, Tyler (with approximately 16,000 students) would allow undocumented children to enroll but would require parents or guardians to pay $1000 annually for each child.3
Initial Challenge: Hernandez v. HISD
Hernandez v. Houston Independent School District was the first case to challenge 21.031. It was filed in spring 1977 in state court, by Peter Williamson, a local Houston attorney. He challenged the statute based on due process and equal protection grounds. However, his arguments were rejected by both the district court and the court of civil appeals. In holding that the legislation was reasonable, the appeals court stated that “[t]he determination to share [the State’s] bounty, in this instance tuition-free education, may take into account the character of the relationship between the alien and this country.”4
Although some observers reported scattered resistance to 21.031, the seeds of what would become Plyler v. Doe were planted in a September 26, 1977 letter from Mexican American Legal Defense and Educational Fund (MALDEF) director Joaquin Avila. Addressed to Peter Roos, the MALDEF National Director for Educational Litigation, the letter stated:
“This statute was made effective on August 29, 1977. Basically, this statute seeks to regulate the number of students who move in with relatives to attend another school district. As the amended statute now provides (Section 21.031(a)), a student who lives apart from his parent, guardian, or other person having lawful control of him under an order of a court, must demonstrate that his presence in the school district was not based primarily on his or her desire to attend a particular school district. In other words, if a case of hardship can be established, a student will be able to attend the school district. Otherwise, the relatives will have to secure a court order of guardianship. This requirement will impose a hardship on those families who cannot afford an attorney to process a guardianship. So far we have not received any complaints only a request by Pete Tijerina, our first general counsel to launch a lawsuit.
What are your feelings on the constitutionality of such a provision. What would we have to show to demonstrate a disparate impact. Please advise at your earliest convenience.”
This letter appears to mark the beginnings of MALDEF’s role in what would eventually become Plyler v. Doe. However, it appears that Avila was unaware of the full scope of the constitutional issue that had been flagged by MALDEF board member, Pete Tijerina. To Avila, the primary issue appears to have been whether 21.031 improperly imposed a hardship on students who wished to live and attend school in a district in which a parent or legal guardian did not reside. While this was a related issue, Avila had not yet realized that the key issue, the issue which would eventually drive the Plyler litigation was the tuition requirement.5 Interestingly, a year after the Plyler court ruled in favor of undocumented students, the issue which Avila highlighted in his letter ended up reaching the Supreme Court in Martinez v. Bynum, where it was resolved in favor of the school districts. At that point, however, MALDEF had already struck the most decisive blow as the more important, more fundamental threshold issue set forth in Plyler had already been decided in their favor.
Nonetheless, in September 1977, when Peter Roos received the letter from Avila, the trajectory of the planned litigation that would become Plyler v. Doe was far from certain. Up to that point, MALDEF had generally lacked the focus of its role model, the NAACP Legal Defense Fund, which had strategically targeted school desegregation as its reason for existence. As Roos pondered the situation he realized that MALDEF needed an appropriate federal-court vehicle to consolidate its modest victories in the state courts it had taken on during its first decade of existence.6
According to University of Houston law professor, Michael Olivas, his discussions with the various parties involved with MALDEF indicate that Roos and MALDEF President Vilma Martinez, a young Texas lawyer who had begun her civil rights career with the NAACP Legal Defense Fund, viewed Plyler as the Mexican-American Brown v. Board of Education. Essentially, it was to be a vehicle for consolidating attention to the various strands of social exclusions that kept persons of Mexican origin in subordinate status.7
Much like Thurgood Marshall who had traveled the South searching for the proper cases and plaintiffs in order to achieve the Legal Defense Fund’s strategic goal of ending segregated schooling, Martinez, Roos and other MALDEF lawyers had been searching for their ideal case. In Plyler v. Doe, MALDEF finally found that case. Plyler was unique, and Roos knew it had the potential to have far greater impact than any of the dozens of smaller cases in various state courts throughout the Southwest that had previously occupied MALDEF. However, MALDEF had already taken one case, San Antonio Independent School District v. Rodriguez, to the Supreme Court and had suffered a difficult 5-4 defeat. MALDEF urgently needed to win a big case in order to establish its credibility both inside and outside the Chicano community as well as to serve its clients, who for so long had been without a voice in the court system. Nevertheless, as MALDEF’s strategy came into focus the small town of Tyler, Texas and the reality of the social inequities occurring there would provide the perfect backdrop for their litigation. Indeed, in the vulnerable Tyler schoolchildren who were being charged $1000 for something that was available to others for free, the MALDEF lawyers found their own Linda Browns. Perhaps even more importantly, they found their ideal judge in William Wayne Justice, who was both admired and reviled for his liberal views and progressive decisions.8 Thus, with all the key players in place and with tiny Tyler, Texas as the backdrop, the stage was set for MALDEF’s crucial showdown with the State of Texas.
Plyler in the Federal District Court
One of the first issues that had to be addressed after the case was filed was whether the plaintiff would remain anonymous in the caption and the conduct of the case so that their identities and those of their families would not be divulged. The issue was vital because use of the plaintiffs’ actual names would place them in direct danger of being deported. However, even after the judge in the case, Judge Justice, ruled that the case could proceed with “John Doe” plaintiffs the risk persisted. At the request of the U.S. attorney, the Dallas district director of the Immigration and Naturalization Service (INS) conducted immigration sweeps in the area in an effort to intimidate the plaintiffs into dropping their suit. In an effort to stop the raids which understandably unnerved his plaintiffs and thereby jeopardized the entire case, Roos wrote a letter to the head of the INS in Washington in which he characterized the raids as witness-tampering. As luck would have it, the INS Commissioner at the time was Leonel Castillo, a native of Houston and a prominent Mexican-American politician with progressive politics, who himself was married to an immigrant. Castillo ordered the raids to cease. In another positive sign for MALDEF, Judge Justice issued a preliminary injunction on September 11, 1977, enjoining the Tyler ISD from enforcing 21.031 against any students on the basis of their immigration status.9
One of the key strategies employed by Roos and Martinez involved a public campaign to “support the schoolchildren” and to promote public acceptance of the children’s immigration status. As part of the approach, Roos wrote to leaders of the National Education Association (NEA), the progressive national teachers union, in October 1977 to request support and assistance. Upon receiving the letter, NEA pledged its support to MALDEF. Additionally, MALDEF leaders called upon other Latino organizational leaders to enlist support, solicit resources, and to encourage legal organizations to file amicus briefs on behalf of the plaintiff children.10 From asking people to write editorials to hosting fundraisers, MALDEF effectively waged battle at the grassroots level.
On September 14, 1978, Judge Justice issued his opinion striking down 21.031 as applied to the Tyler ISD. He reasoned that the statute violated equal protection and that the state had no rational justification for the law. Further, he held that the attempt to regulate immigration at the state level violated the doctrine of preemption, which holds immigration to be a function solely of federal law. Following the decision, the state immediately moved for leave to re-open the case, citing the decision’s implications for other school districts in the state and seeking a chance to bolster the record. However, in yet another fortunate turn for MALDEF, Judge Justice overruled the motion because the “amended complaint does not state a cause of action against any school district other than against the Tyler Independent School District and since this court intends to order relief only against the Tyler Independent School District…”11
Implications of the Victory in Tyler
The effect of the federal district court’s decision in Plyler had an inevitable effect in school districts throughout Texas. Where the original Hernandez v. Houston Independent School District case had failed to spawn similar state court litigation, Plyler succeeded wildly. With news of the Tyler victory spreading throughout the state, four new cases were filed in the Southern District of Texas, two were filed in the Northern District, and six additional cases were filed in the Eastern District where Plyler had just been decided. Perhaps most importantly, the state’s largest school district, Houston ISD, faced a lawsuit in federal court in September 1978, from a group of local attorneys and a California-based public interest law firm, with civil rights attorney Peter Schey as lead counsel. Turning to the federal courts so as to avoid having to litigate in hostile venues had proven to be a winning strategy which had the desired effect of emboldening other groups to pursue Plyler-like litigation. Whereas the Plyler suit, which had focused on only 21.031 and the Tyler school district, had been relatively narrow, the sprawl of cases throughout the state presented an even broader assault upon the system. The cases were brought by different attorneys on various fronts with the hope that they could replicate the victory that Roos had carved out in Tyler. However, the various parties involved in the litigation now confronted the question of how to consolidate the state-wide efforts to maximize their collective chances of success. The solution was that rather than just suing the particular school districts, the suits now included the State of Texas, the Texas Governor, the Texas Education Agency, and the Commissioner of the Texas Education Agency as defendants. However, in the State of Texas, they faced a formidable opponent who had deep pockets, legions of deputy attorneys, general, and private counsel, and other advantages, most importantly the staying power to mow down the plaintiffs at the trial and appellate levels.12 Eventually, all the cases were consolidated into In re Alien Children. The case was tried in the Southern District of Texas in Houston, before Judge Woodrow Seals. The trial would last 24 days.
MALDEF’s Strategic Case Management
In May 1979, after Plyler was decided at the trial level but before In re Alien Children was to go to trial, Isiah Torres, an attorney for the plaintiffs in In re Alien Children wrote Peter Roos and requested that MALDEF consolidate its efforts into the In re Alien Children case which Torres felt was more complex and comprehensive than MALDEF’s original case against the Tyler ISD. Roos responded that MALDEF felt “quite strongly that consolidation would not be in the best interests of our mutual efforts.” Further, MALDEF had carefully chosen Tyler, Texas as the perfect federal venue for arguing its case as it had a progressive judge, sympathetic clients, and a rural area where the media glare would not be as great. Additionally, in Tyler, MALDEF planned to argue that excluding the small number of undocumented children would actually lose money for the district since the State’s school funding policy based allocation amounts upon head count attendance. However, MALDEF felt that in a large urban district the fact questions and statistical proofs would be more expensive and difficult to litigate. Also, because the Tyler trial had been a case of first impression at the federal level, the State’s legal strategy had not been as sophisticated as it would be in a similar trial. Roos wrote to Torres that “[c]onsolidation would play right into th[e] hands of [the State’s attorney] Mr. Arnett.”13
Torres, however, felt that without consolidation, there was a risk that Plyler would be a hollow victory. Specifically, his concern was that the relief granted in Tyler would never extend to other parts of the state. Tyler had folded, but what about Houston, Dallas, and the crucial border districts that were filled with undocumented children? However, Roos was resolute. He responded that his strategy was aimed at winning once and then later applying it elsewhere. He refused to join with other pending actions and thereby increase the risk of losing on appeal. He stated, “[m]ost importantly, I believe that once we have a Tyler victory, we will have started down a slippery slope which will make it impossible for the court to legally or logistically limit the ruling to Tyler.” This strategy had strong echoes of the approach taken by the NAACP on their way to Brown, in which Thurgood Marshall and his colleagues carefully picked their fights and allowed each case to incrementally build upon the previous litigation. Indeed, MALDEF president, Vilma Martinez, who had previously worked at the Legal Defense Fund with Marshall’s former colleague and successor, Jack Greenberg, had learned the importance of an overarching strategic vision and was employing those lessons masterfully.14
MALDEF and Roos had yet another reason for refusing to join the consolidated cases. Roos felt that the opposing local counsel was ineffective and he wished to press this momentary advantage. In a rather candid assessment he wrote, “[a] final, but important reason for believing consolidation is unwise is, frankly, the quality of opposing counsel. Our [local] opposing counsel in Tyler is frankly not very good.” Roos went on to say that this would likely not be the case in Houston where defense counsel would include experienced attorneys form the specialized education law department of a major law firm. 15
Prior to the Supreme Court
Despite Roos’ doubts as to whether the Houston plaintiffs would succeed, Judge Seals rendered a favorable decision on the merits in July 21, 1980. The plaintiff schoolchildren prevailed on the important issue of whether the State of Texas could enact a statute to discourage immigration and whether equal protection applied to the undocumented in such an instance. Judge Seals held that strict scrutiny applied because the law worked an absolute deprivation of education. He also held that Texas’ concern for fiscal integrity was not a compelling state interest, and that charging tuition to the parents or removing the children from school had not been shown to be necessary to improve education in the State. Finally, he concluded that 21.031 had not been carefully tailored to advance the state interests in a constitutional manner.16
Meanwhile, in the Fifth Circuit, Judge Justice’s Plyler decision was affirmed in October of 1980. In May of 1981, the U.S. Supreme Court agreed to hear the case. Additionally, the Fifth Circuit issued a summary affirmance of Peter Schey’s consolidated Houston cases a few months later.17
Although Roos had refused to join with Schey’s consolidated cases during the early stages of litigation, the issue was eventually taken out his hands when the cases reached the Supreme Court. The Court combined the Texas appeals of both cases under the styling of Plyler v. Doe, giving Roos the lead vehicle over Schey’s cases. Finally united, Roos and Schey worked out a formal truce and agreed to divide the oral arguments equally with MALDEF’s case leading the way.18
In the time before the case commenced, Roos worked to bolster support from officials in the federal government. He urged Drew Days, the Assistant Attorney General for Civil Rights to show support by joining the litigation. Later, he persuaded Joseph Califano, the Secretary of Health, Education, and Welfare to write the Solicitor General and urge him to enter the fray on the side of the schoolchildren, which the government did. After the Reagan administration took office in January of 1981, Roos wrote William Clohan, Under Secretary of the newly created Department of Education and urged him to continue the actions of the Carter administration. The change in administration was a risky development because the new administration’s position concerning the ongoing litigation was unclear. Fortunately for MALDEF, the Reagan administration did not seek to overturn the lower court decisions, although it did not formally enter its amicus brief on the side of the plaintiffs (as Carter administration attorneys had).19 With no challenges issued from the new administration’s attorneys, the matter before the Supreme Court was set.
Plyler in the Supreme Court
In June of 1982, almost a year after hearing the case, the U.S. Supreme Court handed down its verdict on Plyler v. Doe.20 In a close decision the U.S. Supreme Court held that denying undocumented school children a public education was against Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. Justice William Brennan wrote the Supreme Court’s majority decision with Justice’s Marshall, Blackmun and Powell concurring. Justice Burger wrote the dissent with Justice’s Rehnquist, White and O’Connor joining in the dissent.
Justice Brennan’s majority opinion started out with an analysis of the lower courts decision and why Texas enacted §21.035. The justice then quickly delved into Texas’ main argument that §21.035 did not violate the Equal Protection Clause of the Fourteenth Amendment, where the Fourteenth Amendment provides that “[n]o State shall … deprive any person within its jurisdiction the equal protection of the laws” because the Equal Protection Clause, in the Texas State position, only applied to persons who were in the State legally.21 Justice Brennan disagreed with Texas’s interpretation of the Equal Protection Clause, he stated, “Whatever his status under immigration laws, an alien is surely a person in any ordinary sense of the term.” The Justice further stated,
The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. and [u]se of the phrase ‘within its jurisdiction’ thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger who is subject to the laws of a State, and reaches into every corner of a State’s territory. That a person’s initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State’s territorial perimeter.22
To establish his argument the Justice developed an analysis of what appropriate standard of review was necessary in this matter and if undocumented aliens fit into a suspect class and thus availing themselves for the need to be protected. The Justice stated, “In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose”, thus the Justice used intermediate scrutiny in this to evaluate the constitutionality of §21.035.23 Intermediate scrutiny requires that the classification must be substantially related to the achievement of an important governmental objective.24
Justice Brennan concluded that undocumented aliens are not a suspect class, however he discussed the reasons why the question of undocumented aliens and equality under law is a difficult question “[s]heer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, had resulted in the creation of a substantial ‘shadow population’ of legal migrants-numbering in the millions within our borders.”25 Additionally, Justice Brennan made a distinction between undocumented alien adults and undocumented children where the adults have a choice to break the laws if they enter illegally and the children lack that choice. The Justice stated,
Undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented status an absolutely immutable characteristic since it is the product of conscious indeed, unlawful action. But § 21.031 is directed against children, and imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control. It is thus difficult to conceive of a rational justification for penalizing these children for their presence within the United States. Yet that appears to be precisely the effect of § 21.031.26
The Justice then focused on education and whether it was a fundamental right, which he concluded it was not but the importance of education and acquisition of knowledge as matters of supreme importance. The Justice further reasoned that children of illegal immigrants should not be punished for a status they did not choose on their own volition. He stated, by “denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”27
The Supreme Court’s majority opinion concluded that the State of Texas objective for denying undocumented children did not further the states interest in “preserving limited resources for the education of its lawful residents.”28 The state’s interest was not advanced because the Court found that there was no evidence that suggested illegal entrances imposed any significant burden on the State’s economy; no evidence that suggested the exclusion of undocumented children was likely to improve the overall quality of education in the state of Texas; and lastly no evidence supported that undocumented children would be deported at any point in the future and therefore not use the education acquired with the state.29 Ultimately the majority determined that the denial of education to undocumented children did not further a substantial state interest and thus §21.031 of the Texas Education Code was unconstitutional.
The other Justices in the majority wrote concurring opinions to express their extreme interest in the case. The Justices focused on education, although education is not considered a fundamental right, they reiterated that education is extremely important and not providing education to children would create a permanent class distinction between undocumented children and others.
Chief Justice Burger wrote the dissenting opinion and no other Justices writing a dissent. The Justice accused the majority of “ assuming a policymaking role” and trying to fix a Congressional problem of lax immigration policy and enforcement.30 The Chief Justice further stated that the Equal Protection Clause applies to aliens who are legally within the United States and that a state should be granted wide latitude to deal with social and economic problems that arise within its borders. The dissent also disregarded the majority opinion that because undocumented children lack control over their entry into the United States they should be granted protection because the Equal Projection Clause was not meant to eradicate every distinction between people only the arbitrary and irrational classifications.31 The Chief Justice then asserted that Texas’s state interests of preserving educational benefits for its legal residents furthers the State’s fiscal means and thus does not violate Equal Protection Clause or the Fourteenth Amendment. The Chief Justice finished his opinion by commenting on the status of undocumented aliens in the United States by stating that, “ ‘[w]hile a specter of a permanent caste’ of illegal Mexican residents of the United States is indeed a disturbing one, it is but one segment of a larger problem, which is for the political branches to solve.”32
Though the Justices had very differing opinions the result of Plyler v. Doe was monumental to undocumented aliens in the United States. Plyler v. Doe gave illegal aliens benefits under the Equal Protection Clause and undocumented children a free public education in the United States.