One Perspective: Educating the children of undocumented aliens

By Scott Forsyth

The Daily Record Newswire

A polling firm calls you and asks you a series of questions about undocumented aliens residing in the country, the "illegal immigrants" of media fame. One question pertains to K-12 education. Should the children of undocumented aliens be educated in our public schools?

If you answered yes, sadly you are in the minority. In September 2010, 47 percent of Americans said yes and 49 percent said no, according to The Christian Science Monitor.

Fortunately, the issue of children of undocumented aliens attending public schools through grade 12 is not subject to the will of the majority. In 1975, the Texas legislature tried, adopting a statute that denied state funds for the education of any children not "legally admitted" to the country. The legislature also authorized local school districts to deny enrollment to these children. Several districts did so.

A group of children admitted that they were not legally admitted and sued, alleging a violation of the Equal Protection Clause. The U.S. Supreme Court agreed, invalidating the statute in Plyler v. Doe, 457 U.S. 202 (1982).

Initially, the state argued that the clause did not apply because the plaintiffs were not lawfully "within the jurisdiction" of Texas. The court countered that the clause protects all "persons" present within the boundaries of Texas and subject to its laws.

On the merits of the constitutional claim, the court acknowledged that obtaining a public education is not a fundamental right and alienage is not a suspect class. However, the statute imposed a burden on a class of children "on the basis of a legal characteristic over which the children can have little control" -- namely, the fact that their parents brought them into the country illegally or stayed in the country after a visa expired, Id. at 220.

The burden is heavy, marking the children with the "stigma of illiteracy" for "the rest of their lives." They lose "the ability to live within the structure of our civic institutions" and may add to "the problems and costs of unemployment, welfare, and crime," Id. at 223.

Consequently, Texas had to show that the statute furthered a substantial goal. Stemming the tide of immigration, saving tax dollars, and not wanting to educate students that may move elsewhere were not substantial-enough goals, Id. at 228-229.

Plyler v. Doe may be rock-solid law but politicians and conservative think-tanks still rail about it. The former claim that it was wrongly decided. The latter like to point out the cost of educating the children of undocumented aliens, supposedly $28.6 billion in 2004. The money could be put to better use, improving our infrastructure for example.

Both politicians and think-tanks conveniently overlook the costs associated with not educating the children, costs explicitly mentioned by the court.

Educators who should know better also ignore Plyler v. Doe.

In New York last school year the NYCLU surveyed all 694 school districts and discovered that 139 or 20 percent asked for information about the immigration status of students during registration. In some districts, like Spencerport's, the question was direct -- "bring your child's I-94 form" (Arrival-Departure Record issued by U.S. Customs and Border Protection) or "Resident Alien Card" (Permanent Resident Card or green card). No form or card, no registration.

Other districts asked for the Social Security numbers of students before the start of school. Undocumented alien children cannot obtain a number.

After several months of lobbying and a New York Times article on the subject, the State Education Department sent all districts in August 2010 a memorandum discouraging them from asking questions about status. If a district truly needs a social security number, it should collect the number after enrollment.

Providing the children of undocumented aliens a college education has even less public support, 18 percent, than educating children through grade 12. The court has also not clearly ruled on the subject of college education.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU in Rochester, NY. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Fri, Apr 1, 2011

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