Much of the United States is gripped by two troubling developments. The first is a leaked Supreme Court draft opinion in Dobbs v. Jackson Women’s Health Organization, which threatens to dismantle reproductive rights and open the door to potential reversal of other “watershed” precedents. The second is the troubling rise of the racist and xenophobic “replacement theory” myth that has become a rallying cry for conservative politicians and mass murders who target communities of color. Although racism and race-based violence have always been embedded in U.S. life, constitutional protections served as a countervailing force to partially hold those forces in check and to offer an aspirational vision of multiracial democracy. But the potential reversal of those protections now threatens to undermine these constitutional and social foundations of equality.
One of the best-known “watershed” cases, Brown v. Board of Education, held that the Constitution’s Equal Protection Clause prohibits racial segregation in public schools. Another school access case, Plyler v. Doe, decided 40 years ago this year, built on this promise by recognizing that all children, regardless of immigration status, have an equal right to a k-12 education. These constitutional commitments to equality prevent discrimination that would render segments of the population a permanent underclass. While Brown’s promise of equality would be unthinkable to challenge today, politicians looking to exploit anti-immigrant and anti-Latino sentiment have seized on the Supreme Court’s draft Dobbs opinion and indicated they will attempt to challenge Plyler.
In Plyler, plaintiffs challenged Texas’ barring of undocumented children from attending public K-12 schools. The Court rejected Texas’ position that undocumented persons are not “persons within the jurisdiction” of Texas and thus not entitled to protection under the Equal Protection Clause. The Court noted that denying undocumented children access to public education would visit a “lifetime hardship on a discrete class of children,” subjecting them to “the stigma of illiteracy [that] will mark them for the rest of their lives,” and that it would “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.”
Ten years after Plyler was decided, I attended high school in San Jose, California, where the district was almost 50% Latino. Some of us, like myself, were second or third-generation Mexican Americans, but among my classmates were many who, without Plyler, could have been denied the ability to attend school. We gave little thought to our respective immigration statuses. Shortly after I graduated in 1993, that changed.
In 1994, the Republican Governor of California, Pete Wilson, attempted to build a political career by championing Proposition 187, which barred undocumented children from public schools. Latinos and others condemned the measure, and a federal court quickly blocked it as a violation of Plyler. Proposition 187 mobilized California Latinos, and within a decade, the state went from barring schoolhouse doors to undocumented children to passing laws like California’s AB 540, expanding college access to many former Plyler students.
As an attorney, I have represented undocumented youth in litigation to protect their educational access. Many became citizens, but others could not. Undeterred, it was Plyler students who went to college as a result of AB 540 and who went on to push the Obama Administration to institute the Deferred Action for Childhood Arrivals (DACA) program, ultimately giving many individuals who went to school because of Plyler authorization to work in the United States as well as protection from deportation.
The Reconstruction Amendments of the late 19th century re-founded our country from one built on permanent slavery and subordination to one more resembling the democracy we were promised. Plyler has made good on this promise by enabling generations of immigrant children—primarily Latino children—to learn how to read, thrive, go to college, support families, buy houses, serve in our military, vote, and contribute to society.
Just as in the 1990s, when the California Republican party wagered its future by supporting Proposition 187, subsequent decades have seen attempts to use nativist and racist sentiment to gain short-term political favor. In 2011, a wave of states, starting with Arizona’s SB 1070, tried to pass laws like Proposition 187. Alabama even tried to get school officials to report undocumented students. Federal courts blocked these laws. After Donald Trump was elected in 2016, he attempted to end the DACA program. There was a concerted push in his administration to find ways to block undocumented children from going to school. Plyler’s precedent stood in their way.
Opportunistic politicians will attempt to capitalize on the divisions in our society and use anti-immigrant and anti-Latino policies to build political careers. In California, that backfired, and the Republican Party is now essentially a non-factor in state politics. In Arizona, Latino youth mobilized against the attacks on their community, helped elect a Democratic Senator, and swung the state’s vote to the Democratic presidential candidate. Nationally there is broad support for opening pathways for these former Plyler students to become citizens. However, the undemocratic nature of representation in national politics gives outsized influence to certain voices, creating incentives for politicians to foment nativist and racist rhetoric.
At the heart of the debates over Plyler is a radically divided view of what America is and what it can be. Some see every dollar spent on “the other” as one belonging to them alone, ignoring how immigrants are essential to the economy and society. But also, they fear educating immigrants will open avenues to civic inclusion and give these immigrants, who are overwhelmingly not white, a greater claim to belonging.
They are right to see a causal link between education and inclusion. Plyler and its protections have allowed generations to make claim to an alternate vision of America: one more diverse, inclusive, and equal. Plyler’s promise has become part of the fabric of the United States, and the Supreme Court’s legitimacy demands that it remains so no matter how often it is challenged.