Extending Plyler v. Doe: Undocumented Immigrants and Postsecondary Education


In 1982, the case Plyler v. Doe nullified a Texas statute designed to deny public education to undocumented children. In Plyler, the Supreme Court rejected the argument that the statute furthered a compelling government interest by ostensibly deterring illegal entry and reserving education funding for legal residents. In his opinion, Justice Brennan noted the importance of education and the adverse implications of withholding it, while stating that “legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice.”[1] Thus, the Court ruled that restricting education access based on students’ legal status violates the 14th Amendment’s guarantee that states may not “deny to any person within its jurisdiction the equal protection of the laws.”[2]

Although Plyler was a seminal case concerning undocumented students’ access to education, it had several significant shortcomings. Most notably, it applied only to K-12 public education, so federal and state laws that bar undocumented students’ access to postsecondary college education remain in place today.

These include the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), a Clinton-era federal statute mandating that undocumented students “shall not be eligible on the basis of residence within a State ... for any postsecondary education benefit unless a citizen or national of the United States is [also] eligible for such a benefit ... without regard to whether the citizen or national is such a resident.”[3] In other words, undocumented students within a state may not benefit from in-state tuition or state-provided financial aid unless the same benefits are offered to documented out-of-state students — a financial impossibility for public colleges, which derive revenue from charging out-of-state students higher tuition.[4] Thus, federal law precludes undocumented students, who are often from working-class backgrounds,[5] from affording college, effectively keeping postsecondary education out of reach; less than ten percent of undocumented youth attend college and even fewer graduate on time.[6]

Many states have been able to circumvent IIRIRA by basing in-state tuition on attendance of an in-state high school rather than “residence within a State” — an approach that accommodates undocumented students.[7] On the other hand, states such as Georgia and Alabama outright prohibit admitting undocumented students,[8] and Arizona forces resident undocumented students to pay out-of-state tuition rates.[9] Moreover, laws in states such as New Jersey and South Carolina are accommodating only when tied to Deferred Action for Childhood Arrivals (DACA) status.[10] Thus, with DACA in flux under the Trump administration,[11] the legal protections for students in these areas are jeopardized.

In the face of this uncertainty and exclusion, there is a convincing case for extending Plyler’s protections to postsecondary schooling. As Laura S. Yates emphasizes in a 2004 paper for the Washington University Law Review,[12] Justice Brennan predicted that withholding education from undocumented students would create “a subclass of illiterates within our boundaries” and “[add] to the problems and costs of unemployment, welfare, and crime.”[13] While he was referring to K-12 education, Yates explains that because Plyler was decided in 1982, the Court could not have anticipated the subsequent necessity of college degrees.[14] Sure enough, data from the New York Federal Reserve highlights that the difference between the earnings of college-educated and high school-educated workers increased significantly after 1980 due to technological development.[15] Clearly, as Yates writes, “primary and secondary education are no longer sufficient for economic success.[16] Additionally, college tuition costs have increased substantially since Plyler. For example, in 1982, the out-of-state tuition at University of North Carolina Chapel Hill — which requires undocumented students to pay out-of-state tuition[17] — was approximately $6,000 adjusted for inflation; currently, it is almost $32,000 while the in-state tuition is about $7,000.[18] Such discrepancy — coupled with states’ efforts to charge undocumented students the highest possible tuition — constitutes a clear “denial of education” as outlined in Plyler.[19]

Ultimately, the same reasoning that rendered the Texas law unconstitutional in 1982 applies today to legislation that prevents undocumented students from attending college. In Plyler, Brennan excoriated the injustice of holding children accountable for their parents’ actions,[20] yet many undocumented college-aged students — and every DACA recipient — entered the U.S. as minors.[21] Brennan also noted that denying education to undocumented students would prove counterproductive if these students later became citizens.[22] Today, restricting entry into institutions of higher learning is similarly counterproductive because proposed immigration reform bills such as the Development, Relief, and Education for Alien Minors (DREAM) Act make postsecondary schooling a prerequisite for legal residency status.[23]

Finally, Plyler’s standard of judicial review must likewise be extended. The Court used intermediate scrutiny to evaluate the Texas statute, requiring that the government prove a “substantial state interest.” However, Brennan declined to use the most rigorous level of review, strict scrutiny, which would likely hold laws denying postsecondary educational benefits to undocumented students unconstitutional.[24] Brennan did not recognize undocumented residents as a historically disenfranchised “suspect class” whose legal challenge would have automatically warranted strict scrutiny.[25] However, in the earlier 1971 Graham v. Richardson case, the Supreme Court held that aliens constitute a suspect class because they are an “example of a 'discrete and insular' minority for whom heightened judicial solicitude is appropriate.”[26] Other suspect classification criteria include a group possessing “immutable” characteristics[27] with “no relation to [their] ability to perform or contribute to society.”[28] One could argue that the near impossibility of securing legal residence and changing one’s undocumented status[29] satisfies the former criterion. And as undocumented immigrants pay billions of dollars in taxes,[30] their contributions to society are more than evident.

Today, the Trump administration has threatened DACA,[31] withheld funding from sanctuary cities,[32] increased the indiscriminate deportations of undocumented residents,[33] and separated undocumented children from their parents at the border.[34] These recent developments reinforce the underlying denial of postsecondary educational access that undocumented students have experienced since IIRIRA, highlighting an egregious lack of protections surrounding undocumented communities. Now more than ever, it is imperative that Plyler is extended and that laws affecting undocumented communities receive strict scrutiny. Only then can the United States move closer to truly delivering on equal protection, and fulfill so many dreams deferred.

[1] Plyler v. Doe, 457 U.S. 202, 220, 222, 230 (1982).

[2] U.S. Const. amend. XIV. Sec. 1.

[3] Illegal Immigration Reform and Immigrant Responsibility Act, 8 U.S.C. § 505 (1996).

[4] “How to understand out-of-state tuition?”, The Economist (2009), online at https://www.economist.com/free-exchange/2009/10/21/how-to-understand-out-of-state-tuition (visited July 18, 2018).

[5] Octavio Blanco, “Immigrant workers are most likely to have these jobs”, CNN Money (2017), online at https://money.cnn.com/2017/03/16/news/economy/immigrant-workers-jobs/index.htm (visited July 19, 2018).

[6] “Resource Guide” Supporting Undocumented Youth”, U.S. Department of Education (2015), online at https://www2.ed.gov/about/overview/focus/supporting-undocumented-youth.pdf (visited July 19, 2018).

[7] A.B. No. 131 § 1. Sess. of 2011 (Cal. 2011), https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB131.

[8] https://www.usg.edu/news/release/regents_adopt_new_policies_on_undocumented_students.

[9] Ariz. Prop. 300 § 3 § 15-1803. Sess. of 2006 (Ariz. 2006), https://apps.azsos.gov/election/2006/info/PubPamphlet/english/prop300.htm.

[10] S. B. No. 2479 § 1a. Sess. of 2013. (NJ 2013), http://www.njleg.state.nj.us/2012/Bills/S2500/2479_I1.HTM.

[11] Miriam Jordan, “U.S. Must Keep DACA and Accept New Applications, Federal Judge Rules”, The New York Times (2018), online at https://www.nytimes.com/2018/04/24/us/daca-dreamers-trump.html (visited July 19, 2018).

[12] Laura S. Yates, “Plyler v. Doe and the Rights of Undocumented Immigrants to Higher Education: Should Undocumented Students Be Eligible for In-State College Tuition Rates?”, 82 Wash. U. L. Q. 585, 591 (2004).

[13] Plyler v. Doe, 457 U.S. 230 (1982).

[14] Laura S. Yates, “Plyler v. Doe and the Rights of Undocumented Immigrants to Higher Education: Should Undocumented Students Be Eligible for In-State College Tuition Rates?”, 82 Wash. U. L. Q. 604 (2004).

[15] Jaison R. Abel and Richard Deitz, “Do the Benefits of College Still Outweigh the Costs?”, 20 Federal Reserve Bank of New York Current Issues in Economics and Finance 1, 2 (2014).

[16] Laura S. Yates, “Plyler v. Doe and the Rights of Undocumented Immigrants to Higher Education: Should Undocumented Students Be Eligible for In-State College Tuition Rates?”, 82 Wash. U. L. Q. 604 (2004).

[17] “North Carolina Policy”, University Leaders for Educational Access and Diversity (2018), online at https://uleadnet.org/map/north-carolina-policy (visited July 18, 2018).

[18] “Prior Year Rates and Information”, UNC Office of the University Cashier (2017), online at https://cashier.unc.edu/tuition-fees/prior-year-rates/ (visited July 18, 2018).

[19] Plyler v. Doe, 457 U.S. 226 (1982).

[20] Id at 220.

[21] Nicole Prchal Svajlenka and Audrey Singer, “Immigration Facts: Deferred Action for Childhood Arrivals (DACA)”, The Brookings Institution (2013), online at https://www.brookings.edu/research/immigration-facts-deferred-action-for-childhood-arrivals-daca/ (visited July 20, 2018).

[22] Plyler v. Doe, 457 U.S. 230 (1982).

[23] U.S. Congress, Senate. Development, Relief, and Education for Alien Minors (DREAM) Act of 2017, S. 1615 § 5a, 115th Congress, introduced in Senate July 20, 2017, https://www.congress.gov/bill/115th-congress/senate-bill/1615/text.

[24] Plyler v. Doe, 457 U.S. 223 (1982).

[25] United States v. Carolene Products Co., 304 U.S. 144, Footnote 4 (1938).

[26] Graham v. Richardson, 403 U.S. 365, 372 (1971).

[27] Lyng v. Castillo, 477 U.S. 635, 638 (1986).

[28] Frontiero v. Richardson, 411 U.S. 677, 686 (1973).

[29] “Immigration 101: Why Can’t Immigrants Just ‘Get Legal’, ‘Get in Line’ and Get Their Papers?”, America’s Voice (2017), online at https://americasvoice.org/blog/immigration-101-why-immigrants-cant-just-get-legal/ (visited July 19, 2018).

[30] Lisa Christensen Gee, Matthew Gardner, and Meg Wiehe, “Undocumented Immigrants’ State and Local Tax Contributions”, Institute on Taxation and Economic Policy (2016), online at https://itep.org/wp-content/uploads/immigration2016.pdf (visited July 18, 2018).

[31] Jerome Dineen, “If Trump ends DACA, here’s how many students could be affected”, USA Today (2017), online at http://college.usatoday.com/2017/02/08/if-trump-ends-daca-heres-how-many-students-could-be-affected/ (visited August 14, 2018).

[32] Maria Sacchetti, “Trump announces changes to to immigration enforcement and cuts to sanctuary cities”, The Boston Globe (2017), online at https://www.bostonglobe.com/metro/2017/01/25/trump-slashes-federal-funding-sanctuary-cities/CEXMyIvNZXEgtDTOOoyn3N/story.html (visited August 14, 2018).

[33] Elliot Spagat and Jill Colvin, “Detentions spike, border arrests fall in Trump’s first year”, The Associated Press (2017), online at https://apnews.com/3252d88390ed4ddea736b4a85a0b78a9 (visited August 14, 2018).

[34] “US family separation crisis — in pictures”, The Guardian (2018), online at https://www.theguardian.com/us-news/gallery/2018/jun/22/us-family-separation-crisis-in-pictures (visited August 14, 2018).