Governor Greg Abbott of Texas can challenge the schooling of migrant children


HOUSTON — As the Supreme Court signals its willingness to overturn decades-old precedents like Roe v. Wade on abortion, Texas Gov. Greg Abbott said Thursday he would seek to overturn a 1982 court ruling that required public schools to educate all children, including undocumented immigrants.

Mr. Abbott’s comments opened a new front in his campaign to use his powers as governor to toughen up Texas against unauthorized migration. And they demonstrated how thoughtful some conservatives are when it comes to the kinds of changes to American life that the emboldened conservative majority on the court might be willing to allow.

The latest proposal to close public schools to undocumented children greatly expands the range of precedents to be debated. After a draft notice was leaked that would overturn Roe v. Wade this week had focused primarily on other rights that may be legally tied to the 1973 ruling, such as access to contraception and same-sex marriage.

Little has changed in the legal landscape surrounding the education of undocumented children since 1982, when the court ruled 5-4 to strike down a Texas law allowing schools to deny admission to unauthorized migrant children. , said legal experts. Several attempts over the years to cut corners in the case known as Plyler v. Doe have failed, including an effort from Alabama more than a decade ago and California in the 1990s.

“If Abbott really wants to challenge it, it would be the first time it’s been done in many years,” said Preston Huennekens, spokesman for the American Immigration Reform Federation, which advocates limits on both legal and illegal immigration.

What has changed is the composition of the court and, Mr. Abbott said, the number of new migrants arriving from various countries, a situation he says has placed an “extraordinary” burden on Texas schools. Migrants arriving now speak many different languages, “not just Spanish”, he said. The governor said education for undocumented children would soon become “unsustainable and unaffordable” if the federal government lifts its pandemic policy of turning away large numbers of migrants at the border, known as Title 42.

Mr Abbott, a Republican running for a third term, said in a radio interview on Wednesday that he would ‘resurrect’ the Plyler case and ‘challenge this issue’, although he did not given a deadline to do so. Asked about his remarks at a press conference on Thursday, the governor, a former Texas attorney general, provided details of his argument.

“The real heart of the challenge would be to say, look, we’re dealing with billions more a year in education spending alone, so you federal government, it’s only because of you, and it’s your responsibility to pay for it,” Mr Abbott said.

He added that he would like to see the Supreme Court overturn another precedent, Arizona v. United States, which in 2012 ruled that immigration enforcement authority rests with the federal government, not the states.

“Either Arizona’s decision will have to be overturned – giving states full power to enforce US immigration laws – or Plyler will have to go,” Abbott said, adding that he would rather see both cancelled.

It was unclear by what means he planned to move forward with a legal challenge, or whether Texas Attorney General Ken Paxton would go ahead. Mr. Paxton’s office did not respond to a request for comment.

But Mr Abbott said recent Supreme Court rulings applying the “anti-requisition” provisions of the US Constitution, which prevent the federal government from imposing coercive obligations on states, would help his case against Plyler. Under this doctrine, he said, Texas could claim that the federal government improperly commandeered state educational resources to further its immigration policies.

Record numbers of migrant children, many arriving with little schooling, have created challenges for schools across the country as districts need to expand bilingual services, transfer teachers and prepare to support students who may have been traumatized in their country of origin.

The children of undocumented immigrants have played a crucial role in maintaining healthy schooling in states with shrinking native-born youth populations, such as Iowa.

But because it is against federal law to record the immigration status of students at the school, the number of students in question is not precisely known. An overwhelming majority of children of undocumented migrants were born in the United States and are citizens. The researchers estimated that there were around one million undocumented young people in the country.

Undocumented immigrants are not eligible for many public benefits. And Texas offers less than most states.

Edna Yang of American Gateways, a provider of immigration legal services in Texas, said undocumented immigrants in the state were only eligible for a small number of benefits, including emergency medical services. , food aid for children and public education.

The governor’s office said the cost of each additional student enrolled in Texas public schools is about $6,100 a year, not including the cost of providing bilingual and special education services, which add more $2,000 extra expense.

The last time the state comptroller looked into the matter was in 2006. The report found that while undocumented children cost around $1 billion to educate at the time, unauthorized migration into the state had an overall positive effect on the Texas economy. Mr. Huennekens, of the immigration reform group, said state programs for students with limited English proficiency cost more than $7 billion in 2016.

But banning undocumented students could upend the system for everyone, said Zeph Capo, president of Texas AFT, a teachers’ union, who said schools could lose the per-student state funding that accompanies these students as well as the additional money sent by the federal government. “Not every undocumented child is in a school or in a school district,” he said. “It’s going to hurt everyone.”

Attitudes toward immigration have changed in Texas, where former Republican governors like George W. Bush and Rick Perry have adopted relatively moderate tones. Mr. Perry, during his tenure, signed legislation allowing undocumented students to access tuition and financial aid at public universities in Texas.

But taking a tough stance on immigration has been a politically comfortable place for Mr. Abbott. He used the issue to fend off challengers in the Republican primary and returned to it in his general election contest against Beto O’Rourke, the Democrat and former congressman from El Paso.

“I don’t see this as a new front,” said Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. “I view his comments as a desperate whistle to bolster his re-election prospects.”

The Plyler case arose out of a 1975 law, passed by the Texas legislature, that prohibited the allocation of funds for the education of noncitizens and allowed school districts to deny enrollment to unauthorized migrant children. .

Under the law, a school district in the town of Tyler, in eastern Texas, has begun charging $1,000 in annual tuition to unauthorized migrant children. This decision was challenged all the way to the Supreme Court.

The decision was a close one, with the five-judge majority determining that the Texas law violated the Equal Protection Clause of the US Constitution. The court found that this would cause “lifelong hardship” for the children, who were being punished for the actions of their parents, and concluded that keeping the law could create a “ghost population” whose children would not be educated. Even the dissenting justices agreed that the Texas law was bad policy.

“I consider Plyler v. Doe to be one of the most important constitutional decisions in Supreme Court history,” said Justin Driver, a Yale Law School professor and author of a book on education. public and the Supreme Court. “That’s because the decision succeeded in burying this kind of legislation and preventing it from spreading across the country.”

Mr. Driver noted that Chief Justice John G. Roberts Jr., when he was a law clerk in the Reagan administration, co-wrote a memo slamming the administration for not strongly supporting Texas in the Plyler case. Mr Driver added that it was unclear whether Chief Justice Roberts had the same view of the case now, four decades later.

But the dissent in the 1982 case echoed the kind of historical and textual reasoning found in Judge Samuel A. Alito Jr.’s leaked draft opinion that would overturn Roe v. Wade. While the dissenting justices disliked the policy, they said the Constitution did not prohibit a law like Texas’s and called the court’s decision a “wrongful legal action.”

“We all wondered if, beyond abortion, Alito’s draft opinion had implications for other rights – and all of a sudden we have one,” said Jeffrey Abramson , professor of law at the University of Texas at Austin.

Edgar Sandoval and Miriam Jordan contributed report.