Following are excerpts from the Supreme Court’s opinion in Plyler v. Doe, the Texas case on the education of illegal-alien children. The majority opinion, excerpts of which begin on this page, was written by Associate Justice William J. Brennan Jr. Section I of the opinion, which gives the background of the case, was omitted. The full text of the dissent, written by Chief Justice Warren E. Burger, follows.
In the text, 21.031 refers to the Texas statute allowing school districts to charge tuition to illegal-alien children. One asterisk [
- ] denotes a deleted footnote; two asterisks [
- ] denote a deleted citation. Where footnotes were retained, they appear in brackets and in italic type.
“Section 21.031 imposes a lifetime hardship on a discrete classof children not accountable for their disabling status.The stigma of illiteracy will mark them for the rest of their lives.By denying these children a basic education, we ... forecloseany realistic possiblity that they will contributein even the smallest way to the progress of our nation.”
The Fourteenth Amendment provides that “No State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Appellants argue at the outset that undocumented aliens, because of their immigration status, are not “persons within the jurisdiction” of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. [
- ] Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. [It would be incongruous to hold that the United States, to which the Constitution assigns a broad authority over both naturalization and foreign affairs, is barred from invidious discrimination with respect to unlawful aliens, while exempting the States from a similar limitation.] [
Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants’ view, persons who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase “within its jurisdiction.” [
- ]. We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized that both provisions were fashioned to protect an indentical class of persons, and to reach every exercise of State authority.
“The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race[,] color, or of nationality; and the protection of the laws is a pledge of the protection of equal laws.” Yick Wo v. Hopkins, 118 U.S., at 369 (emphasis added).
In concluding that “all persons within the territory of the United States,” including aliens unlawfully present, may invoke the Fifth and Sixth Amendment to challenge actions of the Federal Government, we reasoned from the understanding that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. [
- ] Our cases applying the Equal Protection Clause reflect the same territorial theme:[
“Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities,--each responsible for its own laws establishing the rights and duties of persons within its borders,” Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938).
There is simply no support for appellants’ suggestion that “due process” is somehow of greater stature than “equal protection” and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase “within its jurisdiction” in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste- and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection. ...
Use of the phrase “within its jurisdiction” thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. That a person’s initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State’s territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State’s civil and criminal laws. And until he leaves the jurisdiction--either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States--he is entitled to the equal protection of the laws that a State may choose to establish.
Our conclusion that the illegal aliens who are plaintiffs in these cases may claim the benefit of the Fourteenth Amendment’s guarantee of equal protection only begins the inquiry. The more difficult question is whether the Equal Protection Clause has been violated by the refusal of the State of Texas to reimburse local school boards for the education of children who cannot demonstrate that their presence within the United States is lawful, or by the imposition by those school boards of the burden of tuition on those children. It is to this question that we now turn.
The Equal Protection Clause directs that “all persons similarly circumstanced shall be treated alike.” [
- ] But so too, “The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” [
- ] The initial discretion to determine what is “different” and what is “the same” resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the state to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.
But we would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification. The Equal Protection Clause was intended as a restriction on state legislative action inconsistent with elemental constitutional premises. Thus we have treated as presumptively invidious those classifications that disadvantage a “suspect class,"[
- ] or that impinge upon the exercise of a “fundamental right."[
- ] With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. In addition, we have recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties; in these limited circumstances we have sought the assurance that the classification reflects a reasoned judgement consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a substantial interest of the State.[
- ] We turn to a consideration of the standard appropriate for the evaluation of 21.031.
Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants--numbering in the millions--within our borders.[
- ] This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents.[
- ] The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law. [We reject the claim that “illegal aliens” are a “suspect class.” No case in which we have attempted to define a suspect class [
- ], has addressed the status of persons unlawfully in our country. Unlike most of the classifications that we have recognized as suspect, entry into this class, by virtue of entry into this country, is the product of voluntary action. Indeed, entry into the class is itself a crime. In addition, it could hardly be suggested that undocumented status is a “constitutional irrelevancy.” With respect to the actions of the federal government, alienage classifications may be intimately related to the conduct of foreign policy, to the federal prerogative to control access to the United States, and to the plenary federal power to determine who has sufficiently manifested his alliegiance to become a citizen of the Nation. No State may independently exercise a like power. But if the Federal Government has by uniform rule prescribed what it believes to be appropriate standards for the treatment of an alien subclass, the States may, of course, follow the federal direction.] [
The children who are plaintiffs in these cases are special members of this underclass. Persuasive arguments support the view that a State may withhold its benificence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. Their “parents have the ability to conform their conduct to societal norms,” and presumably the ability to remove themselves from the State’s jurisdiction; but the children who are plaintiffs in these cases “can affect neither their parents’ conduct nor their own status.” [
- ] Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.
"[V]isiting ... condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the ... child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the ... child is an ineffectual--as well as unjust--way of deterring the parent.” Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972).
Of course, undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented status an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action. But 21.031 is directed against children, and imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control. It is thus difficult to conceive of a rational justification for penalizing these children for their presence within the United States. Yet that appears to be precisely the effect of 21.031.
Public education is not a “right” granted to individuals by the Constitution. San Antonio School District v. Rodriguez, 411 U.S.1, 35 (1973). But neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. The “American people have always regarded education and the acquisition of knowledge as matters of supreme importance.” Meyer v. Nebraska, 262 U.S. 390, 400 (1923). We have recognized “the public school as a most vital civic institution for the preservation of a democratic system of government,” Abington School District v. Schempp, 374 U.S. 203, 230 (1963), and as the primary vehicle for transmitting “the values on which our society rests.” Ambach v. Norwick, 441 U.S. 68, 76 (1979). As noted early in our history, “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” Wisconsin v. Yoder, 406 U.S. 205, 221 (1972). And these historic “perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists.” Ambach v. Norwick, supra, att 77. In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.
In addition to the pivotal role of education in sustaining our political and cultural heritage, denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. Paradoxically, by depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority. But more directly, “education prepares individuals to be self-reliant and self-sufficient participants in society.” Wisconsin v. Yoder, supra, at 221. Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social, economic, intellectual and psychological well-being of the individual, and the obstacle it poses to individual achievement, makes it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause. [Because the State does not afford noncitizens the right to vote, and may bar noncitizens from participating in activities at the heart of its political community, appellants argue that denial of a basic education to these children is of less significance than the denial to some other group. Whatever the current status of these children, the courts below concluded that many will remain here permanently and that some indeterminate number will eventually become citizens. The fact that many will not is not decisive, even with respect to the importance of education to participation in core political institutions. "[T]he benefits of education are not reserved to those whose productive utilization of them is a certainty. ...” [
- ] In addition, although a noncitizen “may be barred from full involvement in the political arena, he may play a role-- perhaps even a leadership role--in other areas of import to the community.” Nyquist v. Mauclet, 432 U.S. 1, 12 (1977). Moreover, the significance of education to our society is not limited to its political and cultural fruits. The public schools are an important socializing institution, imparting those shared values through which social order and stability are maintained.]
What we said 28 years ago in Brown v. Board of Education, 347 U.S. 483 (1954), still holds true:
“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Id., at 493.
These well-settled principles allow us to determine the proper level of deference to be afforded 21.031. Undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a “constitutional irrelevancy.” Nor is education a fundamental right; a State need not justify by compelling necessity every variation in the manner in which education is provided to its population. See San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 28-39 (1973). But more is involved in this case than the abstract question whether 21.031 discriminates against a suspect class, or whether education is a fundamental right. Section 21.031 imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions,
and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of 21.031, we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in 21.031 can hardly be considered rational unless it furthers some substantial goal of the State.
It is the State’s principal argument, and apparently the view of the dissenting Justices, that the undocumented status of these children
vel non establishes a sufficient rational basis for denying them benefits that a State might choose to afford other residents. The State notes that while other aliens are admitted “on an equality of legal privileges with all citizens under non-discriminatory laws,” [
- ] the asserted right of these children to an education can claim no implicit congressional imprimatur.[
- ] Indeed, in the State’s view, Congress’ apparent disapproval of the presence of these children within the United States, and the evasion of the federal regulatory program that is the mark of undocumented status, provides authority for its decision to impose upon them special disabilities. Faced with an equal protection challenge respecting the treatment of aliens, we agree that the courts must be attentive to congressional policy; the exercise of congressional power might well affect the State’s prerogatives to afford differential treatment to a particular class of aliens. But we are unable to find in the congressional immigration scheme any statement of policy that might weight significantly in arriving at an equal protection balance concerning the State’s authority to deprive these children of an education.
The Constitution grants Congress the power to “establish a uniform Rule of Naturalization.” [Art. I., 8.] Drawing upon this power, upon its plenary authority with respect to foreign relations and international commerce, and upon the inherent power of a sovereign to close its borders, Congress has developed a complex scheme governing admission to and status within our borders. [
- ] The obvious need for delicate policy judgments has counselled the Judicial Branch to avoid intrusion into this field. [
- ] But this traditional caution does not persuade us that unusual deference must be shown the classification embodied in 21.031. The States enjoy no power with respect to the classification of aliens. [
- ] This power is “committed to the political branches of the Federal Government.” [
- ] Although it is a “routine and normally legitimate part” of the business of the Federal Government to classify on the basis of alien status, [
- ] and to “take into account the character of the relationship between the alien and this country,” [
- ] only rarely are such matters relevant to legislation by a State. [
As we recognized in De Canas v. Bica, 424 U.S. 351 (1976), the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal. In De Canas, the State’s program reflected Congress’ intention to bar from employment all aliens except those possessing a grant of permission to work in this country. [
- ] In contrast, there is no indication that the disability im
posed by 21.031 corresponds to any identifiable congressional policy. The State does not claim that the conservation of state educational resources was ever a congressional concern in restricting immigration. More importantly, the classification reflected in 21.031 does not operate harmoniously within the federal program.
To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. [
- ] But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen. [See e.g., 8 U.S.C. 1252, 1253(h), 1254.] In light of the discretionary federal power to grant relief from deportation, a State cannot realistically determine that any particular undocumented child will in fact be deported until after deportation proceedings have been completed. It would of course be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain.
We are reluctant to impute to Congress the intention to withhold from these children, for so long as they are present in this country through no fault of their own, access to a basic education. In other contexts, undocumented status, coupled with some articulable federal policy, might enhance State authority with respect to the treatment of undocumented aliens. But in the area of special constitutional sensitivity presented by this case, and in the absence of any contrary indication fairly discernible in the present legislative record, we perceive no national policy that supports the State in denying these children an elementary education. The State may borrow the federal classification. But to justify its use as a criterion for its own discriminatory policy, the State must demonstrate that the classification is reasonably adapted to “the purposes for which the state desires to use it.” [
- ] We therefore turn to the state objectives that are said to support 21.031.
Appellants argue that the classification at issue furthers an interest in the “preservation of the state’s limited resources for the education of its lawful residents.” [Appellant School District sought at oral argument to characterize the alienage classification contained in 21.031 as simply a test of residence. We are unable to uphold 21.031 on that basis. Appellants conceded that if, for example, a Virginian or a legally admitted Mexican citizen entered Tyler with his school age children, intending to remain only six months, those children would be viewed as residents entitled to attend Tyler schools. [
- ] It is thus clear that Tyler’s residence argument amounts to nothing more than the assertion that illegal entry, without more, prevents a person from becoming a resident for purposes of enrolling his children in the public schools. A State may not, however, accomplish what would otherwise be prohibited by the Equal Protection Clause, merely by defining a disfavored group as non-resident. And illegal entry into the country would not, under traditional criteria, bar a person from obtaining domicile within a State. [
- ] Appellants have not shown that the families of undocumented children do not comply with the established standards by which the State historically tests residence. Apart from the alienage limitation, 21.031(b) requires a county to provide education only to resident children. The counties of the State are as free to apply to undocumented children established criteria for determining residence as they are to apply those criteria to any other child who seeks admission.]
Of course, a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources. [
- ] The State must do more than justify its classification with a concise expression of an intention to discriminate. [
- ] Apart from the asserted state prerogative to act against undocumented children solely on the basis of their undocumented status--an asserted prerogative that carries only minimal force in the circumstances of this case--we discern three colorable state interests that might support 21.031.
First, appellants appear to suggest that the State may seek to protect the State from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population,[
- ] 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal en
trants impose any significant burden on the State’s economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the State fisc. [
- ] The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education.[
- ] Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that "[c]harging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,” at least when compared with the alternative of prohibiting the employment of illegal aliens. [
Second, while it is apparent that a state may “not ... reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools,” [
- ] appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State’s ability to provide high quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State.[
- ] As the District Court [
- ] noted, the State failed to offer any “credible supporting evidence that a proportionately small diminution of the funds spent on each child [which might result from devoting some State funds to the education of the excluded group] will have a grave impact on the quality of education.” [
- ] And, after reviewing the State’s school financing mechanism, the District Court [
- ] concluded that barring undocumented children from local schools would not necessarily improve the quality of education provided in those schools. [
- ] Of course, even if improvement in the quality of education were a likely result of barring some number of children from the schools of the State, the State must support its selection of this group as the appropriate target for exclusion. In terms of educational cost and need, however, undocumented children are “basically indistinguishable” from legally resident alien children. [
Finally, appellants suggest that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the boundaries of the State, and to put their education to productive social or political use within the State. Even assuming that such an interest is legitimate, it is an interest that is most difficult to quantify. The State has no assurance that any child, citizen or not, will employ the education provided by the State within the confines of the State’s borders. In any event, the record is clear that many of the undocumented children disabled by this classification will remain in this country indefinitely, and that some will become lawful residents or citizens of the United States. It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.
If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing in its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here. Accordingly, the judgment of the Court of Appeals in each of these cases is
A version of this article appeared in the June 23, 1982 edition of Education Week as The Supreme Court’s Decision in Plyler v. Doe