PLYLER v. DOE 457 U.S. 202 (1982)

Experimenting with ignorance, the Texas legislature authorized local school boards to exclude the children of undocumented aliens from the public schools, and cut off state funds to subsidize those children's schooling. The Supreme Court, 5–4, held that this scheme denied the alien children the equal protection of the laws. The opinion of the court, by Justice william j. brennan, contains the potential for important future influence on equal protection doctrine.

The Court was unanimous on one point: the Fourteenth Amendment's guarantee of equal protection for all persons extends not only to aliens lawfully admitted for residence but also to undocumented aliens. The question that divided the Court was what that guarantee demanded—an issue that the Court's recent opinions had typically discussed in language about the appropriate standard of review. In san antonio independent school district v. rodriguez (1973) the Court had rejected the claim that education was a fundamental interest, and had subjected a state system for financing schools to a deferential rational basis standard. A significant obiter dictum, however, had suggested that a total denial of education to a certain group of children would have to pass the test of strict scrutiny. (See griffin v. county school board of prince edward county.) Furthermore, although alienage was, for some purposes, a suspect classification, the Court had not extended that characterization to laws discriminating against aliens who were not lawfully admitted to the country.

Justice Brennan's analysis blurred the already indistinct lines dividing levels of judicial scrutiny in equal protection cases. He suggested that some form of "intermediate scrutiny" was appropriate, and even hinted at a preference for strict scrutiny. Eventually, though, he came to rest on rhetorical ground that could hold together a five-Justice majority. Because the Texas law imposed a severe penalty on children for their parents' misconduct, it was irrational unless the state could show that it furthered "some substantial goal of the State," and no such showing had been made. In a concurring opinion, Justice lewis f. powell remarked that heightened scrutiny was proper, on analogy to the Court's decisions about classifications based on illegitimacy. Justice thurgood marshall, also concurring, repeated his argument for recognition of a "sliding scale" of standards of review, and accurately noted that this very decision illustrated that the Court was already employing such a system. No one should be surprised when the Court holds invalid a supremely stupid law that imposes great hardship on a group of innocent people.

Chief Justice warren e. burger, writing for the four dissenters, agreed that the Texas policy was "senseless." He argued nonetheless that the Court, by undertaking a "policymaking role," was "trespass[ing] on the assigned function of the political branches." In allocating scarce state resources, Texas could rationally choose to prefer citizens and lawfully admitted aliens over aliens who had entered the country without permission; for the dissenters, that was enough to validate the law.

thePlyler opinion was narrow, leaving open the question whether a similar burden of substantial justification would be imposed on a discrimination against undocumented aliens who were adults, or even against innocent children when the discrimination was something less than a total denial of education. Justice Brennan did suggest that judicial scrutiny might properly be heightened in cases of discrimination against aliens—even undocumented aliens—who had established "a permanent attachment to the nation." Although it is unlikely that this view could command a majority of the Court today, the remark may bear fruit in the future.

Kenneth L. Karst
(1986)

(see also: Immigration and Alienage.)