William Perry Pendley

Last year, a senior at Roswell (New Mexico) High School was ticketed for blocking a fire lane outside a middle school and for driving without a license.  When the Roswell police officer who stopped her discovered that she had no proof of legal U.S. residency, he notified immigration authorities; rather than fight deportation, she agreed to be sent back to Mexico.  Over the past few weeks, newspapers across the country have discovered the tale and used it to lecture Americans on the “rights” (thanks to a 1982 ruling by the U.S. Supreme Court) of school-age children illegally in this country.

For example, in March the Chicago Tribune described the events in New Mexico and declared, “A 1982 Supreme Court ruling guarantees children who are in the U.S. illegally the right to a public education and says schools cannot inquire about their immigration status.”  The Chicago Tribune’s depiction of the holding in Plyler v. Doe, 457 U.S. 202 (1982), proves Will Rogers was right when he opined, “It isn't what we don't know that gives us trouble; it's what we know that ain't so.”  For that landmark ruling held only that, because illegal aliens are “persons” under the Equal Protection Clause, if states deny them free primary education, states must have a basis that passes “intermediate scrutiny.”  Specifically, the Court held that a new Texas law did not pass that test.  Thus, contrary to the claim by the Chicago Tribune, Plyler:  (1) does not apply to secondary and post-secondary education; (2) did not hold that public education is a right; (3) does not confer legal status on illegal alien children; (4) does not prevent an illegal alien from being arrested and deported; and (5) does not prevent a school from inquiring as to the legal status of and reporting illegal aliens.  Finally, Plyler does not prohibit a state from denying primary education to illegal aliens; Plyler holds only that, if a state does, it needs a better reason than Texas had in 1982.

William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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