Secretary of Education Betsy DeVos has stoked public outrage more consistently than any other member of President Donald Trump’s Cabinet, a group not principally known for evading indignation. But perhaps DeVos’s most alarming error to date has received insufficient public attention. This disregard is regrettable because her blunder illuminates one of the U.S. Supreme Court’s most momentous opinions — and exposes a mounting threat to the decision.
As last school year drew to a close, Congressman Adrian Espaillat of New York asked DeVos in a committee hearing whether public educators could report undocumented students to Immigration and Customs Enforcement. “Sir, I think that’s a school decision,” DeVos replied. “That’s a community decision.” That response, however, revealed a deluded conception of unauthorized immigrants’ constitutional rights.
In 1982, the Supreme Court, in a 5-4 decision called Plyler v. Doe, rejected a Texas law that authorized local schools to exclude undocumented students. Writing for the Court, Justice William Brennan found that the law impermissibly punished “innocent children” for parental misconduct, and that it clashed with the country’s deepest constitutional commitments. If left unchecked, Brennan reasoned, the measure “raise[d] the specter of a permanent caste of undocumented resident aliens,” a development “present[ing] most difficult problems for a Nation that prides itself on adherence to principles of equality under law.” In essence, a student’s immigration status forms an illegitimate basis for barring children from school.
When the Court issued Plyler, no state in the country other than Texas had enacted such legislation. This legislative backdrop has motivated prominent constitutional scholars to dismiss Plyler as an insignificant opinion that invalidated merely an outlier statute. The Court’s decision is thus construed as merely eliminating a blatantly outlandish measure — one that would hold no appeal beyond the Lone Star State, where a cowboy mentality prevails.
But such dismissive assessments miss the mark. Rather than some trivial event in the nation’s constitutional history, it seems far more accurate to understand Plyler as preventing an isolated measure from becoming pervasive, as anxieties about unauthorized immigrants extend well beyond states along the southern border. Few opinions in American history have had more profound consequences than Plyler’s guarantee that the schoolhouse doors cannot be closed to one of society’s most marginalized, vilified groups. The opinion has single-handedly enabled innumerable children to use education to expand both their minds and their horizons.
About two weeks after her blunder, DeVos retreated from claiming that public schools could police students’ immigration status, labeling Plyler a “settled case” and conceding that undocumented students “have the right to an education.” The pressing question now, however, is: how much longer will that right exist? Several factors suggest that Plyler could soon be endangered.
Indeed, ample reason suggests the Supreme Court could greet new anti-Plylerlegislation favorably. In 1982, a young lawyer working in the Reagan Administration named John G. Roberts, Jr. coauthored a memorandumbemoaning the Department of Justice’s failure to file an amicus brief in Plyler actively supporting Texas. Had it done so, Roberts speculated, the Court would have upheld the law. Now the Chief Justice, if Roberts continues to believe that Plyler erred, then he could well rally his fellow conservative colleagues to overturn the decision.