William Perry Pendley

The Chicago Tribune failed to note that the ruling is the epitome of “judicial activism.” Five liberal justices, acting as if they were elected to Congress, ruled “illegal alien children” a “special class” and that Texas had not shown that its law “had a substantial relationship to a substantial state interest” when it voted to deny them free education.  The justices admitted that free school was not a “right” but said it was a special benefit whose denial violated the Equal Protection Clause.  They relied on these “facts”:  there are only 3 million illegal aliens in the United States; Congress might declare illegal aliens to be citizens; illegal aliens will never leave so citizens should pay to help them improve themselves; citizens are “callous” toward illegal aliens so courts must protect them from “neglect”; and the cost of paying to educate illegal aliens is not as important as the psychological toll on them of not having free education.

Chief Justice Burger, with Justices Rehnquist, White, and O’Connor, responded with a vigorous dissent:  “in an effort to become an omnipotent [] problem solver[,]. . . the court distorts our constitutional function”; “the importance of a governmental service does not elevate it to the status of a fundamental right”; “assum[ption of] a legislative role [is] one for which the court lacks both the authority and competence”; “[i]llegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expense of those who are lawfully in the state”; “the constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem.”

More than a quarter century later, it is not just the wisdom of the dissent that throws Plyler into doubt; it is the “facts” relied on by the majority that “ain’t so!”

William Perry Pendley

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

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