“We’re all becoming border states now,” worried Bristol County, Massachusetts Sheriff Tom Hodgson over tens of thousands of illegal immigrants — most unaccompanied children — swarming into the American Southwest, many making their way to America’s first county. Meanwhile, officials in Connecticut and Maryland balked at federal plans to house illegals there, and Nebraska Governor Dave Heineman was livid to learn illegals were secreted into his state.
Hundreds of cities — coast to coast and border to border — fearing their schools, health departments, and local budgets will be overwhelmed, demand that their leaders respond. If they do, their plans will draw fire from the Obama administration, whose Education and Justice Departments informed educators nationwide last May that “Plyler v. Doe, 457 U.S. 202 (1982), [provides] that a State may not deny access to a basic public education to any child residing in the State, whether present in the United States legally or otherwise … . Plyler makes clear, the undocumented or non-citizen status of a student … is irrelevant to that student’s entitlement to an elementary and secondary public education.”
The use of Plyler by Obama’s officials — and over the years by the mainstream media and left-wing groups — as an incantation, proves Will Rogers right: “It isn’t what we don’t know that gives us trouble; it’s what we know that ain’t so.”
Plyler held only that, because illegal aliens are “persons” under the Equal Protection Clause, if states deny them free primary education, states must have a basis that passes “intermediate scrutiny.” Specifically, the Court held that a Texas law did not pass that test. Thus, Plyler: (1) does not apply to secondary and post-secondary education; (2) did not hold that public education is a right; (3) did not confer legal status on illegal alien children; (4) does not prevent an illegal alien from being arrested and deported; and (5) does not prevent a school from inquiring as to the legal status of and reporting illegal aliens. In fact, Plyler does not bar a state from denying primary education to illegal aliens. Plyler holds only that, if a state does so, it needs a better reason than Texas had in 1982.
Not surprisingly, Plyler remains the epitome of “judicial activism.” Five justices, acting as if they had been elected to Congress, ruled “illegal alien children” a “special class” and that Texas had not shown that its law “had a substantial relationship to a substantial state interest” when it voted to deny them free education. The justices admitted that free school was not a “right” but said it was a special benefit whose denial violated the Equal Protection Clause. In so ruling, they relied on these “facts”: there are only 3 million illegal aliens in the United States; Congress might declare illegal aliens to be citizens; illegal aliens will never leave so citizens should pay to help them improve themselves; citizens are “callous” toward illegal aliens so courts must protect them from “neglect”; and, the cost of paying to educate illegal aliens is not as important as the psychological toll on them of not having free education.
Chief Justice Burger, with Justices Rehnquist, White, and O’Connor, responded with a vigorous dissent: “in an effort to become an omnipotent  problem solver[,] … the court distorts our constitutional function”; “the importance of a governmental service does not elevate it to the status of a fundamental right”; “assum[ption of] a legislative role [is] one for which the court lacks both the authority and competence”; “[i]llegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expense of those who are lawfully in the state”; “the Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem.”
Local officials should ignore the spell the left seeks to cast, respond zealously to the likely lawsuits from the Obama administration and the usual suspects, and ask the Supreme Court to reconsider Plyler, given illegal immigration over the last three decades and what is happening now across our southern borders, in detention centers throughout the country, and to communities in all 50 States.
William Perry Pendley, an attorney, is president of Mountain States Legal Foundation and author of Sagebrush Rebel: Reagan’s Battle With Environmental Extremists and Why It Matters Today (Regnery, 2013).