By Andre Perry
July 11, 2018
When they come for our rights, who will you stand with — and who will stand with you?
When we think of what’s at stake in education with the impending conservative swing of the Supreme Court, I bet most would say, “Affirmative action.” But there’s another case that may soon become top of mind for us: the 1982 case of Plyler v. Doe.
That ruling prohibited school officials from considering immigration status when enrolling children, and while various states and localities have attempted to circumvent the decision, in recent years it has been considered uncontroversial and settled into law.
But what if a reconfigured bench with Neil Gorsuch and, potentially, President Trump nominee Brett Kavanaugh were to hear the case again today? That question may not be purely hypothetical. The 1982 decision was narrowly decided, five in favor, four against.
In his ruling opinion, Justice William Brennan wrote that “under current laws and practices, ‘the illegal alien of today may well be the legal alien of tomorrow,’” and that without an education, undocumented children, “[a]lready disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable racial prejudices, . . . will become permanently locked into the lowest socio-economic class.”
Chief Justice Warren Burger offered the dissenting opinion, stating that “the Constitution does not constitute us as ‘Platonic Guardians,’ nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, ‘wisdom,’ or ‘common sense.’”
But we’ve all had to bear witness to undesirable, nay, unspeakable social policy. With Trump’s disastrous Zero Tolerance policy at the border that separated thousands of migrant children from their families, he has encouraged a xenophobic sentiment that imperils the future status of immigrant students.
And, while the potential theft of an education is particularly pressing for immigrants, all people of color share a fate with migrant children. The trauma that affects individual students reverberates schoolwide. All students need safe spaces to learn; denying certain students an education damages the learning environment as a whole.
Schools are supposed to unleash their students’ potential — and that includes their ability to become citizens. If the Supreme Court can’t see immigrant children as potential citizens, as the 1982 court did, what’s to say it won’t see the potential in native-born or naturalized students?
Sure, the court may not explicitly undo the 1954 Brown v. Board decision, which outlawed the separate but equal doctrine, but it can remove the basic rights of students they don’t see potential in, rendering them second-class citizens. (It certainly wouldn’t be the first time!)
If the Supreme Court can’t see immigrant children as potential citizens, as the 1982 court did, what’s to say it won’t see the potential in native-born or naturalized students?
Descendants of the enslaved and women know what it is like to be second-class citizens. We know when white men refused to recognize our potential. The threat to immigrants is a threat to all of us.
In Plyler v. Doe, the court held that a Texas law blocking the use of state funds to educate undocumented citizens was unconstitutional. The ruling was based on the equal protection provisions of the Fourteenth Amendment, which provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
Of particular concern to the court was the fact that children — rather than their parents — were involved. The court believed that denying undocumented children access to education punished children for their parents’ behavior and did not comport with basic ideas of justice.
In addition, the ruling acknowledged that time spent in the country and the unlikelihood of deportation are factors to be considered in the allocation of education benefits. It said that children of undocumented parents should be taken as future members of society and granted benefits befitting such a status. As a result of this act, thousands of undocumented school-age children attend public primary and secondary institutions.
According to a 2016 report published by the think tank the Pew Research Center, there were an estimated 725,000 unauthorized immigrants enrolled in K-12 schools, about 1.3 percent of total K-12 enrollment in 2014. Roughly 3.2 million children who are U.S. citizens had at least one unauthorized parent that year, around 5.9 percent of total K-12 enrollment.
These numbers represent our children’s friends, classmates and future colleagues. An attack on current law would result in children being separated from their schools, families or worse. Members of the Trump administration have already introduced the idea of having schools notify immigration officials if they suspect (read: racially profile) a child of being undocumented.
On May 22, Rep. Adriano Espaillat (D-N.Y.), who sits on the House Committee on Education and the Workforce, asked U.S. Secretary of Education Betsy DeVos whether school leaders should report undocumented students or families to Immigration and Customs Enforcement. DeVos responded, “I think that’s a school decision, it’s a local community decision.”
She added, “And again, I refer to the fact that we have laws and we also are compassionate, and I urge this body to do its job and address and clarify where there is confusion around this.”
There were an estimated 725,000 unauthorized immigrants enrolled in K-12 schools, about 1.3 percent of total K-12 enrollment in 2014.
DeVos’ response clearly indicated she either did not understand federal law or she suggested that local schools circumvent it. A person who understands that actions against a student can impact the student body and recognizes the potential trauma of having educators summon immigration authorities on their own students would not have made that claim.
DeVos walked back her assertion on June 5 in a statement, saying that “schools are not, and should never become, immigration enforcement zones.”
The education secretary has forgotten that for much of our country’s history, women were denied the right to vote and were discouraged from attending or denied entrance in most colleges and universities in this country. But prioritizing whiteness over womanhood is something that prevents many white women from seeing the historical connection they have with immigrants.
Some of us don’t have the luxury of suppressing how we are oppressed. For black folk, the calls to Immigration and Customs Enforcement (ICE), the federal immigration enforcement agency, is little different than the calls to local police when black people mow their lawns, swim in an area pool, sleep on a couch in their school’s dorm, shop in a mall, drive a nice or other humdrum activities of life.
Muslims, who were targeted by Trump’s travel ban, recently upheld by the Supreme Court, also feel this connection. The LBGTQ community understands the vulnerability stemming from the Trump administration’s removal of protections that combat discrimination.
I’m reminded of the famous solidarity quote from Martin Niemöller, the Protestant pastor who spoke out against the silence in the face of Nazi rule:
First they came for the Socialists, and I did not speak out—Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out— Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out— Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.
Oppressors have come for so many that we are scared to speak out against what is happening in the country. But history is repeating itself. People of color, women, LGBTQ people and Muslims share a common destiny, and we can change the future — together — if we speak out for immigrants today.
This is not the first conservative Supreme Court and it may not be the last. Too many of us know this too well.