Is Free Public Education for Noncitizens a Lock?

Letter to Ephesians: How many know free public-school education for illegal alien children stems from a 5-4 Sup Ct decision in 1982, which radically expanded the reach of the Constitution’s Equal Protection Clause to fit progressives’ “rights” ideology? Would that ruling stand if reviewed today?

That fateful precedent in Plyler v Texas didn’t just engrave Constittutional Law with an incredibly expensive educational mandate on states, but others like health care benefits too. Yet a recent Fox News opinion piece suggests there’s another test case possibly peculating in Tennessee over a legislative proposal requiring public & charter schools to verify a student’s immigration status before approving free enrollment. If it becomes law, lawsuits challenging the right of states to challenge precedents dating back to Plyler are likely to make it to the Supremes again. It’s worth then jumping in the Time Machine to get a better understanding of how we’ve gotten here. The majority in Plyler had relied heavily on the fact that the Equal Protection Clause bars a state’s bias (as in “arbitrariness”) in dealing with the rights of “persons” within its jurisdiction & wasn’t pointedly limited to “citizens” rights. Yet, some pretty smart constitutional experts in the minority argued just as persuasively that there’s nothing in the Founding Fathers’ document that makes education a “right” rather than a “privilege,” which states in our federal system of government have traditionally controlled; given resources are not infinite, they argued, it stands to reason states have always had a common sense right, if not duty to taxpayers, to decide how to manage such privileges.

Well, the majority & minority in Plyler go much deeper, at far greater length than allowed in the short space here. But, if that Tennessee or other state’s similar challenges to free education for undocumented children does get to be heard by today’s more conservative & fundamentalist Sup Ct majority it doesn’t take a Learned Hand to imagine what the ruling might be … and the potential impact it could have on today’s public schools as well as public health care benefits.

Davd Soul