Pedro Gonzalez: Overturn Plyler v. Doe

Overturning Roe seemed like a pipe dream until it finally happened. Now that the worst modern legal precedent is gone, we asked TAC contributors: Which bad decision should the Supreme Court overturn next?

The month before he was elected mayor of New York, Eric Adams tweeted the Big Apple would “remain a sanctuary city” under his administration. He had previously promised to “severely restrict cooperation” between the New York Police Department and Immigration and Customs Enforcement (ICE)—including ensuring that ICE is removed from all city buildings and facilities—and voiced support for giving driver’s licenses to illegal aliens. As mayor, he allowed a bill to pass providing more than 800,000 noncitizens access to the ballot box for municipal elections shortly after taking office.

But Adams sang a different tune about immigration this summer. During a press conference in July, he bemoaned the influx of illegal aliens that had proven a “real burden” on the city’s safety net and public services after nearly 3,000 asylum-seeking migrants had arrived in just a few weeks. An email obtained by The Epoch Times sent by New York City’s Human Resources Administration urged all able staff to work overtime to deal with a “drastic influx of asylum seekers” in Manhattan and the outer boroughs, indicating the crisis was even worse than Adams had admitted.

The cause of Adams’s woes is simple. These people are going to New York City specifically and the United States in general because they know they’ll get access to public services and benefits typically reserved for citizens. In other words, the incumbent order incentivizes mass lawbreaking. One source of those incentives is a little-known Supreme Court case, Plyler v. Doe.

In 1982, the Court struck down a Texas statute that denied access to taxpayer-funded K-12 education to children brought into the country illegally. It also struck down the Tyler Independent School District’s policy of charging an annual $1,000 tuition fee for each student not “legally admitted” into the U.S. to compensate for lost state funding. 

The Court argued that illegal aliens are people “in any ordinary sense of the term” and, as such, afforded Fourteenth Amendment protections. In the majority opinion, Justice William J. Brennan Jr. wrote that such policies would likely lead to “the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.” 

The decision in Plyler effectively abstracted the Constitution so as to cover every sentient biped with a prefrontal cortex, exploding the preambular statement that restricted it “to ourselves and our posterity”—to America and Americans. It also meant similar laws anywhere in the U.S would be struck down. 

Proposition 187, for example, was California’s attempt in the 1990s to eliminate the incentives that cause illegal immigration. Indeed, Eric Adams today sounds a lot like Gov. Pete Wilson then, who also railed against the burden of mass immigration on public services such as schools. After the proposition passed with 59 percent of the vote and propelled Wilson to reelection, U.S. District Court Judge Mariana R. Pfaelzer declared the law unconstitutional. She cited Plyler to make her case.

The policies implemented by Texas and Proposition 187 in California were reactions to the federal government’s failures to curb illegal immigration amid surges. And while Plyler tied states’ hands in restricting immigration, the precedent it set was extended beyond K-12 to allow illegal aliens to pay in-state tuition rates for college, with at least 18 states passing such laws. 

Ironically, Brennan’s feared “subclass” has materialized anyway. Latinos, who were at the center of these debates, lag across the country in math and English proficiency. A culture of academic affirmative action has arisen to accommodate lowered expectations. In Oregon, for example, as part of the state’s efforts to bolster graduation rates among “students of color,” it is no longer required to demonstrate proficiency in math, reading, and writing to receive a high school diploma. Why bother? After all, math is now considered racist in schools, and universities like Rutgers have changed their English grammar rules for the same reason.Plyler, of course, doesn’t bear the blame for all of this—but it has created incentives that, as Adams admitted, burden the system and necessarily lead to lower standards for everyone. It also raises the question of whether nations are homes that owe something to their people or merely boarding houses and bordellos for a never-ending flow of strangers. Overturning Plyler wouldn’t fix everything overnight, but it would be a big step in the right direction after so many wrong turns.

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