AUSTIN — Gov. Greg Abbott has infuriated immigration advocates and educators by suggesting Texas may challenge a longstanding U.S. Supreme Court decision that says states and localities can’t bar unauthorized immigrant children from attending public schools.
On Thursday, critics assailed the Republican governor as “hare-brained” and “cruel.”
Beto O’Rourke, Abbott’s Democratic opponent in the November election, went further.
“He’s trying to defund our public schools,” O’Rourke said at a news conference in Austin.
The criticisms followed Abbott’s appearance by phone on a San Antonio radio talk show, during which he agreed with the host that the costs of educating a growing number of immigrant children in public schools and in many languages “are extraordinary.”
Also, Abbott said “times are different” from four decades ago, when the high court ruled unconstitutional a Texas law that allowed school districts to charge tuition to parents of unauthorized immigrant school children — in effect, a blockade.
Tyler schools sought to impose annual tuition per child of $1,000, the equivalent today of about $5,300.
Other than to say that migrants are entering Texas from 155 countries and speaking many languages, Abbott did not elaborate on what’s changed that would persuade the Supreme Court to overrule its 1982 decision in Plyler vs. Doe.
“The challenges put on our public systems is extraordinary,” Abbott told WOIA-AM’s conservative host Joe “Pags” Pagliarulo in a program that aired Tuesday night. (Though Pagliarulo’s website says the show aired Wednesday, that’s incorrect, Abbott’s office confirmed.) “Texas already, long ago, sued the federal government about having to incur the costs of that education program,” Abbott said.
He added, “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 vs. Doe was issued many decades ago.”
Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, or MALDEF, slammed Abbott as an “irresponsible” and “desperate” practitioner of “dog-whistle populism” in the mold of former President Donald Trump.
“First, Abbott needs some remedial education on Plyler itself,” Saenz said in a written statement. “This was a case brought against Texas, not by Texas, as Abbott asserted. The case was filed by MALDEF on behalf of students threatened by a Texas statute allowing schools to exclude undocumented students from public school.”
In the four-decade-old ruling, the Supreme Court split 5-4 on declaring the Texas law unconstitutional. But even the four dissenters agreed with the majority that Texas was unwise to pass the law, Saenz noted.
“All of the justices, including then-Associate Justice William Rehnquist, agreed that the Texas law seeking to exclude undocumented children from school was bad public policy,” he said.
Asked about Abbott’s remarks, White House press secretary Jen Psaki said, “That’s ultra-MAGA right there. … Denying public education to kids, including immigrants to this country, I mean, that is not a mainstream point of view.”
Abbott’s stance, she added, is “way out of the mainstream.”
In Houston on Thursday, Abbott said the federal government is foisting big education costs on states by not securing the border — costs much higher than 40 years ago.
Either states must be given “full authority to enforce U.S. immigration laws or Plyler will have to go,” he said after a small-business roundtable.
O’Rourke blasted Abbott for threatening settled constitutional law that has opened K-12 classrooms to all youngsters, regardless of immigration status.
“This is very telling, and I want everybody to pay specific attention to the phrasing of this,” O’Rourke said at a news conference at the Texas Capitol. “Governor Abbott is against providing public education to all the children of the state of Texas. Now he’s saying out loud what we know he’s been working on ever since he became governor — he’s trying to defund our public schools.” O’Rourke noted that teacher salaries in Texas badly lag those of their counterparts in other states.
David Leopold, an immigration attorney and legal adviser to the advocacy group America’s Voice, said Abbott has helped build an “anti-immigrant judicial pipeline” and can now “confidently broaden his war on immigrants to a brazen attack on undocumented children,” knowing “his judicial challenge to Plyler will land in the courtroom of one of his Republican political allies.”
Zeph Capo, president of Texas AFT, a teachers’ union, lashed Abbott’s remarks as “cruel, small-minded thinking.”
“If the governor succeeds, he would be disrupting thousands of Texas school campuses, thrusting them into a world where spiteful adults target children with questions about their legal status,” Capo said in a written statement. “Students would face speculation over the color of their skin or their accent, even if they are legal residents.”
According to the late University of Houston Law Center professor Michael Olivas, who wrote the 2012 book No Undocumented Child Left Behind, the Texas Legislature held no public hearings in 1975 on the provision letting school districts charge tuition to parents of unauthorized school children.
“Certain border Texas school superintendents had supported the legislation, which was enacted without controversy as a small piece of larger, routine education statutes,” Olivas recounted in a 2010 article previewing his book.
Tyler, where the superintendent was James Plyler, had about 60 unauthorized immigrants enrolled out of total student population of about 16,000. Invoking the new state law, Tyler began charging $1,000 annual tuition for each unauthorized immigrant student. According to Olivas, a Catholic lay worker objected to a local lawyer, who with MALDEF filed a case in federal district court on behalf of four families, whom the court allowed to be identified using pseudonyms.
Though the district court judge in 1978 found both the state law and Tyler’s policy unconstitutional, as violating the 14th Amendment’s equal protection clause, appeals took four years to resolve. The Plyler case and a similar one from Houston went to the U.S. Supreme Court for arguments in 1981.
The next year, five justices affirmed the district court, saying Texas had failed to show its denial of a K-12 education to some children “furthers some substantial state interest.” Barring unauthorized immigrant children from school is “an ‘ineffectual’ means of deterring unlawful immigration, at least when compared to a prohibition against the employment of illegal aliens,” said Justice William Brennan, writing for the majority.
Because of “circumstances beyond their control,” the unauthorized immigrant children would be accorded second-class status, a “treatment that the 14th Amendment was designed to abolish.”
Brennan warned, “The stigma of illiteracy will mark them for the rest of their lives.”
Staff writer Dianne Solis in Dallas, Austin correspondent Philip Jankowski and Washington Bureau Chief Todd J. Gillman contributed to this report.