Are States Constitutionally Required to Educate Illegal Immigrant Children?

On June 28, 2014, Merrill Hope reported for Breitbart Texas on how the Obama administration was using the 1982 United States Supreme Court opinion in Plyler v. Doe, 457 U.S. 202 (1982), to pressure the states, including Texas, to provide elementary and secondary education at taxpayer expense to children who are illegal immigrants.

Plyler arose out of a Texas law from 1975 that sought to deny illegal immigrants a taxpayer-funded elementary and secondary education.  The Obama administration’s pressure comes as part of its deliberate abdication of its duty to protect America’s border, which has resulted in the catastrophic surge of illegal immigrants presently breaking into the country.  George Bush had a surge to wipe out murderous Islamic supremacists in Iraq.  Barack Obama is having his surge – of illegal immigrants who will fundamentally transform America.

Hope reported on a letter the Obama administration sent to state public education administrators, which stated in part:

“As Plyler makes clear,” the letter states, “the undocumented or non-citizen status of a student (or his parent or guardian) is irrelevant to the student’s entitlement to an elementary and secondary public education.”

The Obama administration’s letter is deceptive because Plyler did not state that illegal immigrants are entitled to such an education in all circumstances.  Plyler described a circumstance under which it would presumably be legal for a state to deny illegal immigrants a taxpayer-funded elementary and secondary education.  Unbelievably, the Supreme Court stated in Plyler that this circumstance was not present in the record before the court in 1982.  However, this circumstance is present now in every state that is burdened with illegal immigrants in elementary and secondary public schools.  This circumstance is easily proved and would be part of the evidentiary record in any new legal action brought by a state seeking to enforce its exclusion of illegal immigrants from taxpayer-funded elementary and secondary schools.  The circumstance is that exclusion of illegal immigrants from taxpayer-funded elementary and secondary schools is likely to improve the overall quality of education in the state, make direly limited educational resources available for students who are legally in the country, and eliminate a significant burden on the state’s economy.

Plyler stated that the “Equal Protection Clause directs that all persons similarly circumstanced shall be treated alike,” but it “does not require things which are different in fact or opinion to be treated in law as though they were the same” (Plyler, at 216).  Plyler further recognized that children who are legally here are not similarly situated with children who are illegal immigrants because the latter are “in violation of federal law” – a distinction Plyler stated is “not a constitutional irrelevancy” (Plyler, at 223).

Plyler held the Texas denial of education under the 1975 law would be constitutional if it furthered “some substantial state interest” (Plyler, at 230).  But incredibly, Plyler held that “the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State” (Plyler, at 229).  Plyler also held that the record does not support “the claim that the educational resources of the State are so direly limited” that the exclusion is a reasonable solution (Plyler, at 229 n.25).  Plyler further stated: “There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy” (Plyler, at 228).

Plyler also recognized that while regulation of immigration is an exclusively federal function, a state is permitted to take action, consistent with federal immigration policy, to protect its economy and ability to provide governmental services from the deleterious effects of a massive influx of illegal immigrants.  Plyler stated:

Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State’s economy generally, or the State’s ability to provide some important service.  Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.  (Plyler, at 228 n.23.)

A great deal of evidence exists in the public record demonstrating that Texas and many other states would be able to make the showing that Plyler stated Texas failed to make in 1982.  A 2010 report by the Federation for American Immigration Reform (FAIR) estimated the fiscal burden of illegal immigration on U.S. taxpayers.  FAIR estimated that in 2010, Texas spent $6.1 billion a year to educate the children of illegal aliens.  Further investigation would be needed to find out how many of those children are illegal immigrants, because those are the only ones who should be denied taxpayer-funded elementary and secondary education.  Such an education should not be denied to a child of an illegal immigrant when the child is legally in this country.

On January 16, 2014, Matthew Boyle of Breitbart News reported that a new FAIR report contained the number of illegal immigrants in Texas elementary and secondary taxpayer-funded schools.  Boyle reported: “FAIR found that annually the estimated 195,000 illegal alien students and 481,000 U.S.-born children of illegal aliens place an $8.5 billion burden on taxpayers for their education costs.”  Thus, FAIR found an increase of $2.4 billion from 2010 to early 2014.  According to FAIR’s estimate, the students who are illegally present in the country are 29% of the total amount of students on which the $8.5 billion amount is based.  Twenty-nine percent of $8.5 billion is $2.465 billion.  This would easily satisfy the Plyler criteria and allow Texas to deny illegal immigrants a taxpayer-funded elementary and secondary education, without conflicting with Plyler.

Various states, including Texas, may want to provide a taxpayer-funded elementary and secondary education to illegal immigrants.  But they should not say that Plyler requires them to do so.  Nor should they allow the Obama administration to falsely state that Plyler requires them to.

Allan J. Favish is an attorney in Los Angeles.  His website is  He has co-authored with James Fernald a book about what might happen if the government ran Disneyland entitled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).

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