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An influential conservative think tank has laid out a strategy to challenge a landmark Supreme Court decision that protects the right of undocumented children to attend public school.
The Heritage Foundation, which is spending tens of millions of dollars to craft a policy playbook for a second Trump presidential term, recently released a brief calling on states to require public schools to charge unaccompanied migrant children and children with undocumented parents tuition to enroll.
Such a move “would draw a lawsuit from the Left,” the brief states, “which would likely lead the Supreme Court to reconsider its ill-considered Plyler v. Doe decision,” referring to the 1982 ruling that held it was unconstitutional to deny children a public education based on their immigration status.
Plyler has survived challenges for more than 40 years, but some legal experts and advocates for immigrant children say the newest proposal to undermine it should be taken seriously, given Trump’s extreme anti-immigrant rhetoric, a steady drumbeat of headlines about the “migrant crisis,” and the conservative-led Supreme Court’s recent willingness to overturn established legal precedent.
“The politics right now of illegal immigration and the picture that conservatives, and even some liberals, have painted of stressing the resources of states and localities—I think that that’s a huge factor,” said Brett Geier, a professor at Western Michigan University who wrote a book about K–12 schools and the Supreme Court. “I do think that this court has the chutzpah to say ‘We’re going to take it on and overturn it.’”
But others say the real intent is to rile voters in an election year, and that Plyler v. Doe isn’t truly at risk.
“Every time there’s an election, all of a sudden immigration becomes a big problem, and [we hear] ‘We have to do something about these immigrants, and get rid of them, and not pay for their schooling,’” said Patricia Gándara, a research professor at UCLA’s Graduate School of Education who has written extensively about how immigration enforcement affects children and schools. “Then, after the election is over, it dies away.”
Charging school tuition in Texas led to Plyler ruling
A growing number of Americans, and Republicans in particular, say immigration policy is a top concern right now. And immigration issues are getting a lot of attention in this year’s presidential race.
Trump has campaigned on a series of hardline, restrictive immigration policies, including the mass deportation of undocumented immigrants and the end of refugee resettlement. He’s also falsely claimed that migrant children have displaced other kids in New York City’s public schools.
The focus on immigration comes as the country is seeing a significant increase in migrants arriving at the U.S.-Mexico border. Federal officials counted nearly 2.5 million people reaching the southern border last year. That was a 43% increase from two years earlier, although not all were admitted. A rising share are families with children.
More than three-quarters of Americans view what’s happening at the border as a major problem or a crisis, a recent poll by the Pew Research Center found. Just under a quarter of U.S. adults said they were concerned that the rise in migrants would be an economic burden on the country.
The Heritage Foundation taps into those concerns with its recent brief, titled “The Consequences of Unchecked Illegal Immigration on America’s Public Schools.” In it, the organization criticizes President Biden’s approach to immigration policy, saying it’s led to “large influxes of non-English-speaking children” enrolling in public schools.
The document cites examples of Texas schools holding lessons in hallways, and a Brooklyn high school that had students learn virtually for a day after the school housed migrant families overnight during a rainstorm.
In response, the Heritage Foundation is calling on states to prohibit schools from housing undocumented immigrants and to require schools to collect student enrollment data by immigration status “so that accurate cost analyses can be done.” States should require school districts to charge undocumented children tuition to attend public school, the brief states.
It was this exact practice nearly half a century ago—in the same state that’s defying the federal government by handling its own immigration enforcement—that led to the Plyler v. Doe ruling.
Texas passed a law in 1975 saying that public schools would not receive state funding for the education of undocumented children and districts could bar these students from attending public school for free.
Two years later, the Tyler Independent School District started charging undocumented children $1,000 a year to attend school—a sum district officials knew would be unaffordable for the area’s immigrant families, who often worked in Tyler’s rose industry, as well as in meat-packing plants and on farms.
“I don’t think any family could have paid that,” James Plyler, the district’s superintendent, told an Education Week reporter in 2007. “One thousand dollars back in 1977 was lots and lots of money, and most of those families who came in were working for minimum wage.”
Four families whose children were blocked from attending school sued Plyler and the school district, and eventually won at the Supreme Court. In the 5-4 opinion for the majority, Justice William Brennan wrote that denying undocumented children the ability to learn how to read and write would take an “inestimable toll” on their “social, economic, intellectual, and psychological well-being.” (The dissenting justices agreed it was wrong to deny undocumented kids an education, but argued it wasn’t a constitutional violation.)
Now, the Heritage Foundation says those education costs have grown too high, and states and schools should be able to recoup them. The federal government could help, said Madison Marino, a senior research associate who co-authored the Heritage Foundation brief, or parents or sponsors of undocumented students could pay.
“We really aren’t looking to deprive these kids of their education,” Marino said. “We’re calling for everyone to contribute.”
Most undocumented families today probably would struggle to pay school tuition, as they did in 1977, and federal aid seems unlikely. Congress is bitterly divided over how to fund immigration policy and whether schools need more funding in the wake of the pandemic, and the U.S. Department of Education has historically devoted only a tiny fraction of its budget to educating English learners and immigrant students.
The Trump campaign did not respond to a request for comment about the Heritage Foundation’s proposals to challenge Plyler, but observers widely believe the think tank would play a crucial role in a second Trump administration. Elsewhere, the campaign has said that external groups do not speak for Trump or his campaign, and that policy recommendations are just that.
Kalyn Belsha is a senior national education reporter based in Chicago. Contact her at kbelsha@chalkbeat.org.