Law & Courts

Leaked Abortion Draft Has Supreme Court Education Cases in Political Cross-Hairs

By Mark Walsh — May 10, 2022 8 min read
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The leaked draft of a U.S. Supreme Court opinion that would overrule the 1973 Roe v. Wade decision establishing the right to abortion has prompted legal commentators to wonder what other precedents might be targeted by the court’s conservatives, including some landmark education rulings.

Just two days after the leaked abortion opinion, for example, Texas Gov. Greg Abbott said he would seek to undo Plyler v. Doe, a 1982 decision in which the Supreme Court held that the state could not deny funding for the education of undocumented immigrant children.

“I think we will resurrect that case and challenge this issue again, because the expenses are extraordinary and the times are different than when Plyler v. Doe was issued many decades ago,” Abbott, a Republican facing reelection this year, said on a radio show that aired May 4.

Many observers perceived Abbott as appearing emboldened by the leaked abortion draft that, if ultimately adopted as the decision of the high court, would upend nearly 50 years of precedent on a highly contentious issue in American society. The governor commented on the Plyler education decision in the interview with a conservative talk radio host that addressed both the draft abortion opinion and border and immigration policy, although Abbott didn’t specifically acknowledge any link.

But others were more than happy to suggest one.

“Abbott … is licking his chops over Plyler vs. Doe. Conservatives control the Supreme Court by a 6-3 margin,” Jack Crosbie wrote in Rolling Stone magazine. “The GOP sees the draft decision on Roe as a green light to abuse their advantage as much as possible.”

Cases on religion and race are mentioned by conservatives

After Politico published Justice Samuel A. Alito Jr.’s draft opinion in the pending abortion case, one conservative writer tweeted a reference to the draft’s language that Roe was “egregiously wrong from the start” and added: “Next stop, Brown v. Board!”

The reference to the landmark 1954 school desegregation decision Brown v. Board of Education of Topeka by former National Review writer Peter Brimelow was probably more provocation than serious prediction. But it prompted a TV crew to ask U.S. Secretary of Education Miguel Cardona whether Brown was at risk. (The secretary said education was “under attack” on many fronts.) And Politico’s weekly education newsletter carried the headline “Will Brown v. Board of Education be next to fall?”

“A certain amount of this is pure hysteria, and I don’t think it is founded,” said Derek W. Black, a law professor at the University of South Carolina and a scholar of education law.

Although the Brown decision was unpopular in the South for years after it came out, no justice has called for it to be overruled. In fact, Alito cites Brown to lend legitimacy to his draft abortion opinion, saying that overruling Roe would correct a grave error just as the 1954 desegregation decision corrected such an error from the Plessy v. Ferguson ruling, the 1896 case that upheld the principle of separate but equal facilities for Blacks and whites.

But conservative justices, politicians, and legal scholars have had other education decisions in their sights for years, and the abortion draft may add to the perception that overruling established decisions is now more attainable.

One area where the court could overrule a long-standing opinion is the separation of church and state. Some conservative justices have long sought to bury, once and for all, a 1971 decision known as Lemon v. Kurtzman, which established the famous three-part ‘Lemon test’ for evaluating government aid to or interaction with religion.

While the justices have largely cast aside the test, lower federal courts continue to apply it. Justice Neil M. Gorsuch, during oral arguments in April in Kennedy v. Bremerton School District, about a high school coach who conducted prayers on the football field, said, “Many school districts and municipalities around the country continue to operate on this endorsement idea, and there are certainly some strains of it in our case law, as you’re familiar, dating back to Lemon.”

Paul D. Clement, the lawyer representing the coach and a former U.S. solicitor general under President George W. Bush, said, “If it requires formally overruling Lemon and the endorsement tests that come from that [to rule for the coach], I think that would be very helpful.”

Another longtime goal of conservatives is to undo affirmative action in college admissions, and next term, the court will weigh challenges to race-conscious admissions plans at Harvard University and the University of North Carolina.

Those cases have implications for the use of race in K-12 schools. In a friend-of-the-court brief filed just this week in support of the challengers to affirmative action, the group Parents Defending Education argues that the high court’s precedents allowing the consideration of race to promote educational diversity have led to policies that “infect K-12 classrooms with racial division.”

“This obsession might be called anti-racism or critical race theory or equity,” the brief says, and it stems from the operative precedent on race consideration in education, the 2003 case of Grutter v. Bollinger.

Grutter must be overruled,” the brief argues.

Decisions on school funding, corporal punishment among targets for liberals

Liberal advocates and scholars also have Supreme Court education decisions they would like to see overruled.

The litigation in recent years in Connecticut, Michigan, and Rhode Island that sought to persuade federal courts to find a U.S. constitutional right to literacy or civics education was aimed at the legacy of the Supreme Court’s 1973 decision in San Antonio Independent School District v. Rodriguez, which rejected a 14th Amendment equal-protection clause challenge to Texas’ school funding system.

Black of the University of South Carolina said those efforts, which have been rejected by the courts, were not seeking to overrule Rodriguez as much as expand a narrow theory left open by the decision. The court said in Rodriguez that the Constitution might be violated if “a state’s financing system occasioned an absolute denial of educational opportunities to any of its children” or if the state failed “to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.”

The theory of the recent cases was “that the decision left open a baseline,” said Black.

Justin Driver, a Yale Law School professor and scholar of education law, has called for the overruling of a 1973 decision, Ingraham v. Wright, which rejected challenges to corporal punishment in schools, based on the Eighth Amendment’s bar on cruel and unusual punishments.

Driver’s 2018 book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, also called for the court to strengthen student-speech protections and revisit its decisions upholding student drug testing.

“I hope the current court will revisit these issues,” Driver said in an interview. “I think it would be possible to cobble together a coalition of liberals and libertarian-minded justices who would support those goals.”

Texas’ complaints about the immigrant-students decision goes back years

The Supreme Court’s Plyler decision on the requirement to educate immigrant children has been a target of criticism from some quarters for years.

In a 2016 brief in a case about an Obama-era initiative to grant deportation relief to immigrant parents of children born in the United States, Texas argued that the so-called Deferred Action for Parents of Americans program would cost the state more money for law enforcement, health care, and education.

Texas noted its obligation to obey the Plyler decision and said in its brief that it “pays at least $7,903 annually for each unlawfully present alien enrolled in public school,” and in one recent year, “Texas absorbed additional education costs of at least $58,531,100 stemming from illegal immigration.”

In his radio interview earlier this month, Abbott said the burden of the Plyler decision had only grown.

“We have people coming in from over 165 countries across the entire globe,” Abbott said. “Think of what they’re trying to grapple with in our schools. It’s not just Spanish teachers we have to deal with, it’s multiple other languages. The challenge put on our public system is extraordinary.”

Thomas A. Saenz, the president and general counsel of the Mexican-American Legal Defense and Education Fund, which fought Texas in the Plyler case, said in an interview that even if Abbott were serious about mounting a challenge to the Supreme Court decision, he would need to get a new law passed that restricted or eliminated funding for immigrant children.

“Even in conservative Texas, I think this would be a heavy lift for him,” Saenz said, noting that the state’s legislature is not even in session this year.

“From a political perspective, I don’t think this threat is real,” he added. “Nobody wants thousands of immigrant kids in their school districts out and about in the middle of the school day.”

Liberal and conservative scholars appear to agree with Saenz that Plyler is not under a realistic consideration of being overruled.

“It’s not surprising that some elected officials would want to revisit that ruling,” said Driver, the liberal-minded Yale law professor. But while Plyler was “momentous and consequential” for the education of immigrant schoolchildren, it is not a decision that has been the subject of much debate among lawyers or the legal academy, he said.

Josh Blackman, a conservative-minded law professor at South Texas College of Law Houston who comments frequently on the Supreme Court, said, “There are lots of [liberal] precedents from the 1960s, ‘70s, and ‘80s that are difficult to reconcile with the original meaning of the Constitution. But if I had to rank the top 10 of those, I don’t think I would put Plyler on that list. But here we are.”


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