Studies in Law, Politics, and Society

Austin Sarat, Austin Sarat

• Publisher: Emerald Publishing Limited
• Year: 2018
• ISBN:
  9781787562097
• Topic: Derecho
• Subtopic: Jurisprudencia

Studies in Law, Politics, and Society provides a vehicle for the publication of scholarly articles within the broad parameters of interdisciplinary legal scholarship. In this latest edition of this highly successful research series, chapters examine a diverse range of legal issues and their impact on and intersections with society. This volume features a special section with papers dedicated to law and disability. The chapters examine issues of HIV, obesity, disability rights, assisted suicide and prenatal testing. Other papers included in this important volume address the right to education for migrant children in the United States and the rights to citizenship of British children. This volume brings together leading scholars and will be vital reading for all those researching in this subject area.

CHAPTER 1

TO WHAT EXTENT IS PLYLER v. DOE AN EFFECTIVE PROTECTION FOR THE RIGHT TO EDUCATION FOR IRREGULAR MIGRANT CHILDREN IN CONTEMPORARY US?

Robbie Eyles

ABSTRACT

Education is both a human right and an indispensable means of achieving other rights. Provision of education for irregular status migrant children tests the commitment of nation states to this basic right even as states curb irregular immigration. In the US, the right to go to school was guaranteed to irregular migrant children, by the case of Plyler v. Doe in 1982. This article argues that the right enshrined in that decision faces considerable risk of being eroded in the current political context. The article presents a detailed critical analysis of the rationale in the case, with a full consideration of the shaky constitutional framework on which the decision was based. It also examines the direct legal challenges to the right to education since Plyler, and the potential impact of new political and legal changes in contemporary times.

Keywords: Undocumented immigrants; education; children’s rights; constitutional law; irregular migration; Plyler v. Doe

INTRODUCTION

This paper focusses on the landmark case on right to education of Plyler v. Doe which the US Supreme Court decided in 1982.¹ Although the case has celebrated its 35th anniversary in 2017, it is still the foremost case on the right of every child in the US, irrespective of their immigration status, to attend a US public school from kindergarten to 12th grade (K-12). Plyler is much celebrated for what it has achieved; the majority’s decision granted millions of undocumented children in the US the right to education. As Justice Brennan put it, the case averted the “inestimable toll […] on the social, economic, intellectual, and psychological wellbeing”² of millions of children. Yet, changes in current US politics threaten the viability of Plyler and have the potential to expose the shaky constitutional foundations of the decision. The Plyler decision exists in a somewhat paradoxical position – it is a hugely important right and has been relied upon by millions, but remains precarious due to the grounds on which it was based.

This study seeks to act as a warning as to the robustness of the Plyler decision and its susceptibility to future challenges. Protections which are now taken for granted may in fact rest on weak foundations. Through its reliance on an amalgamated and unclear standard of heightened rational constitutional scrutiny as well as its dependence on empirical claims which have since become outdated, Plyler does not in fact constitute an effective protection for the right to education for irregular migrant children in contemporary US. It is important, therefore, for those interested in children’s education, not to rest on the laurels of the Plyler decision but to continue to work for a stronger legal framework for the right to education. A strong constitutional basis for this right for all children will be able to withstand better the challenges on the ground for irregular status children who are politically placed in precarious conditions under the current Trump administration.

To demonstrate this argument, I first look at the preliminary considerations and then lay out some current threats to undocumented students. Next, I set out the theoretical background of immigration and children’s rights and the legal bases for the right to education. A detailed legal analysis of the Plyler case follows. Finally I assess the challenges to Plyler since it was decided and conclude with an evaluation of its vitality as a protector of the right to education.

PRELIMINARY CONSIDERATIONS

In this article, children without full legal immigration status in the US will be referred to as “undocumented” or “irregular” as these terms refer to their legal status rather than dehumanizing them as “illegal.” Although there is no clear or universally accepted definition of irregular migration, the International Organization of Migration regards irregularity from the perspective of the receiving country as “entry, stay or work in such a country without the necessary authorization or documents required under immigration regulations.”³ A considerable number of irregular migrant children are present in the US today. The estimates range from 1.8 million to nearly 5 million but data about the exact numbers is hard to acquire as they are a diverse group who often move out of parental households or are simply hidden from public authorities.⁴

The US operates on the basis of jus soli – any child born on US soil is automatically an American citizen. Thus, the subject of this study is children who are themselves irregular as per law, not merely those with parents who are irregular in status. In addition, although higher education is an important part of the right to education, this essay only considers the right of irregular migrants to K-12 education.⁵

CURRENT THREATS TO THE RIGHT TO EDUCATION FOR IRREGULAR IMMIGRANT CHILDREN

The threat to the right to education for irregular immigrants is heightened by the current political climate. As well as curbing regular immigration through the Muslim travel ban⁶ and talk of a “merit-based” system,⁷ the current Presidential regime is broadly hostile to all kinds of irregular immigration. Starting in the campaign promise of a wall between Mexico and the US to effectively block further irregular immigration, President Trump has repeatedly tried to curb immigration of an “undesirable” kind. During his campaign Trump also proposed setting up a deportation force to deport all immigrants living in the US illegally and has continued on this trajectory since coming to power. In January, Trump issued an executive order⁸ which denies Federal grants to “sanctuary cities”⁹ and contains powers which vastly expand the authority of individual immigration officers.¹⁰ These have consisted of, for example, plans to publicize crimes by undocumen...