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Quarter Century Old Ruling Continues To Wreak Havoc After Activist Judges "Mandate" Schooling For Illegals; Unsatisfied, ACLU And Others Spread Untruths On Ruling!

Jun 15, 2008 | by William Perry Pendley

Last year, a senior at Roswell (New Mexico) High School was ticketed for blocking a fire lane outside a middle school and for driving without a license. When the Roswell police officer who stopped her discovered that she had no proof of legal U.S. residency, he notified immigration authorities; rather than fight deportation, she agreed to be sent back to Mexico. Over the past few weeks, newspapers across the country have discovered the tale and used it to lecture Americans on the rights (thanks to a 1982 ruling by the U.S. Supreme Court) of school-aged children illegally in this country.

In March, for example, the Chicago Tribune described the events in New Mexico and declared, A 1982 Supreme Court ruling guarantees children who are in the U.S. illegally the right to a public education and says schools cannot inquire about their immigration status. The Chicago Tribune’s view of the holding in Plyler v. Doe, 457 U.S. 202 (1982), proves Will Rogers was right when he opined, It isn't what we don't know that gives us trouble; it's what we know that ain't so.

In fact, Plyler v. Doe, as bad as it was and continues to be, did not mandate either that illegal aliens have a right to a public education or that schools may not inquire as to their status. For that landmark and heavily criticized ruling held only that, because illegal aliens are persons under the Equal Protection Clause, if states deny them free primary education, states must have a basis that passes intermediate scrutiny.

Specifically, the Court held that a new Texas law did not pass that test. Thus, contrary to the claim by the Chicago Tribune, Plyler v. Doe:

(1) does not apply to secondary and post-secondary education;

(2) did not hold that public education is a right;

(3) does not confer legal status on illegal alien children;

(4) does not bar arrest and deportation of illegal alien students; and

(5) does not bar inquiry as to the status of illegal alien students.

Finally, Plyler v. Doe does not prohibit a state from denying primary education to illegal aliens; Plyler v. Doe holds only that, if a state does, it needs a better reason than Texas had in 1982.

That is not all that the Chicago Tribune failed to reveal!

The Chicago Tribune failed to note that the ruling is the epitome of judicial activism. Five liberal justices, acting as if they were elected to Congress, ruled illegal alien children a special class and that Texas had not shown that its law had a substantial relationship to a substantial state interest when it voted to deny them free education.

The justices admitted that free school was not a right but said it was a special benefit whose denial violated the Equal Protection Clause. They relied on these so-called facts:

there are only 3 million illegal aliens in the United States;

Congress might declare illegal aliens to be citizens;

illegal aliens will never leave so citizens should pay to help them improve themselves;

citizens are callous toward illegal aliens so courts must protect them from neglect; and

the cost of paying to educate illegal aliens is not as important as the psychological toll on them of not having free education.

Chief Justice Burger, with Justices Rehnquist, White, and O’Connor, responded with a vigorous dissent:

in an effort to become an omnipotent. . . problem solver. . . the court distorts our constitutional function;

the importance of a governmental service does not elevate it to the status of a fundamental right;

illegal aliens have no right whatever to be here, and the state may. . .constitutionally, elect not to provide them with services at the expense of those who are lawfully in the state;

the constitution does not provide a cure for every social ill or vest judges with a mandate. . .to remedy every social problem.

More than a quarter century later, it is not just the wisdom of the dissent that throws Plyler v. Doe into doubt; it is the facts relied on by the majority that ain’t so! For example, today there are 12 to 20 million illegal aliens in the USA; Congress has not made illegal aliens citizens; and states are passing laws to encourage illegal aliens to leave and they are leaving!

So what is the cost of educating illegal aliens? No one knows because the ACLU, for one, says that Plyler v. Doe bars officials from asking! Thanks to MSLF, officials are learning the truth and are starting to ask questions.

With falling home prices, an aging population, and other economic woes, the cost may be too much. Then, local officials may decide to fight to overturn Plyler v. Doe. Given the composition of the Supreme Court and the facts as to illegal immigration, they might win. MSLF plans to be there!

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