By Michael A. Olivas, William B. Bates Distinguished Chair of Law at the University of Houston Law Center, and director of the school’s Institute of Higher Education Law & Governance.
Immigration has always been a complex transaction and dangerous sojourn, and local forces have attempted to control the process, especially as the country was forming and borders were not yet fully established. Throughout United States history, state and local politicians have introduced and enacted thousands of anti-alien bills. Some legislation has even been so mean-spirited as to advocate a repeal of 1982’s Plyler v. Doe, the watershed Supreme Court decision that required Texas to give undocumented children free access to public schools. In difficult economic times, elected officials find scapegoating aliens is an easy way to reach low-hanging fruit, as if these workers were the source of the sputtering economy. For example, Alabama enacted HB 56 (the “Alabama Taxpayer and Citizen Protection Act”) in 2011, regarded as the most-draconian anti-immigrant legislation to date. The statute even required schools to conduct a census of undocumented children in schools, until it was enjoined by the trial and Circuit judges.
Such arguments and legislation, mixed in a cauldron amidst shrill warnings about the rights of “real Americans,” lead inevitably to a sense of divisiveness, racial superiority, and undifferentiated prejudice. Such imprecise, undifferentiated, and broad-brush swipes at “illegals” and “anchor babies” generally tar all the groups. Free-floating racialized animus often leads to a generalized resentment against all people of color, or “others,” especially those constructed as “foreigners.” If there were a group that holds promise to become productive, undocumented K-12 and college students would surely be that group. With the generally dismal schooling available to these students, that even a small percentage could meet the admission standards of colleges and universities is extraordinary. Given their status and struggle, each successful student represents a story of substantial accomplishment. Most of these students have parents who struggled to bring them to this country and exercised considerable risk to enable their achievements. That they succeed under extraordinary circumstances is remarkable to virtually all who observe them. These students’ success partially explains why so many educators and legislators have accepted Plyler and worked to assist them in navigating the complexities of school and college. Despite the success of anti-immigrant rhetoric in shaping a discourse and of restrictionists in fashioning resentments, reasonable legislators of both parties have attempted to address the issues these students face.
Plyler’s gravitational pull has not affected many subsequent cases, as none has come before the Supreme Court since then on all fours. Scholars have chronicled the many permutations that have arisen in lower federal and state courts. Immigrant advocates have had to re-litigate and shore up a number of corollary and subsidiary issues flowing from the touchstone Plyler. The record includes the broad range of postsecondary Plyler issues, where most of the states with larger numbers of undocumented schoolchildren, and even some with fewer such students, have facilitated their enrollment in the public colleges. Even as states have ratcheted up their efforts to apprehend undocumented parents and unauthorized workers, other states carved out and maintained safe havens for the undocumented college children. For example, Utah — not thought of as a particularly hospitable climate to immigrants — retained its postsecondary residency tuition for undocumented college students, even as it moved to enact significant restrictionist employment and benefit legislation. Several states have enacted harsh measures against these college students, such as South Carolina, which banned them in 2009. Most major receiver states have extended residency status to undocumented students, as have unusual venues from Nebraska to Kansas. If Florida were to move in this direction, all the major immigrant states save Arizona would allow undocumented students to enroll and receive resident tuition status. These are surely markers of how deeply the roots of Plyler have reached into the country’s soil.
When I consider the hydraulics of immigration — particularly the tug between federal and state jurisdiction and enforcement, the likely downsides of the nativist proposals, and the rise of local and state immigration-related proposals, I am convinced that no good can come from sub-federal assumption of immigration powers. Some of the inefficiencies in the current system are incontestably dysfunctional. But the sub-federal assumption of immigration powers would not appreciably improve the current system, which already has coordinating provisions built-in, if not widely adopted. If state legislators think that the existing system is broken, the checkerboard of different enforcement regimes is sure to be even more complex; fifty different and inconsistent state schemes are surely no better an approach than a single, improved federal scheme. Blowback in affected communities and increased prejudice are sure to follow from sub-federal assumption of immigration powers. The local and state enforcement efforts have led to raids on workplaces and gathering places. All of these are sure signs of a racial, ethnic, and national origin “tax” that will only be levied upon certain groups, certain to be Mexicans in particular, or equally likely, Mexican Americans. These more-than-petty nuisances are reminiscent of our inglorious immigration history of racial exclusion, and are Chinese pigtail ordinances in modern guise. Despite their surface attractiveness and thin veneer, we should resist them as fixes.
On occasion, the centrist view prevails, as it did in Plyler. Despite the intermittent restrictionist impulses in the United States polity, there has been wide and deep acceptance of these children in the nation’s schools. Many, although not all of the thousands of school districts and states have accommodated their enrollment, facilitated their schooling, celebrated their achievements, and extended them college acceptance and resources. Whether through the DREAM Act or other legislation, comprehensive immigration reform of some stripe is a likely eventual development. Paradoxically, Plyler’s wide scale acceptance, even in a time of increased authorized and unauthorized immigration, has occurred in the context of unprecedented nativism and restrictionism, and in the face of unmatched concerns about national security and terrorism.
That the Texas statute at issue in Plyler singled out the children, innocent even if their parents had “dirty” hands, convinced the lower courts and Justice Brennan all the more that Texas could not even satisfy the most deferential level of constitutional review.Plyler, read soon after its ruling along with Bynum and Toll, suggests that the Supreme Court was willing to examine more carefully the benefits or statuses to be withheld or extended by states or Congress. Following Plyler, durational benefits and status distinctions would have to withstand more searching scrutiny and delineate immigration classifications more carefully and with nuance. That said, Plyler’s incorporation of “inchoate” federal policy and lack of efficacy failed to generate clear doctrine or guidelines. Both of these issues have surfaced in the current debates over the extent to which local or state authorities may regulate immigration by means similar to the Texas school attendance zones, such as renter laws, work authorization, policing powers, and other municipal ordinances.
The transcendent, glorious meaning of Plyler surely is its equal protection principles, applied to innocent sojourners in the larger community, but also its place in the complex assignment equation of who apportions benefits and status, and to whom, and under what constraints. Having decided Plyler upon its preemption grounds would have assisted courts today who are deciding similar attempts to regulate immigration policy at the state and local level; such rulings would then shore up Plyler’s stature as timely and relevant, reaffirming it as the robust and supple decision it has never revealed itself to be. However they arrived here, most of these children are our newest family members, and we ignore this at our peril. For this reason, if for no other, Plyler v. Doe should be celebrated and noted as the salutary event it surely is.
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