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After “Roe,” Abbott May “Resurrect” Fight Against K-12 Education for Immigrants

In “Plyer v. Doe,” the Supreme Court ruled that states couldn’t deny an education based on a child’s immigration status.

Texas Gov. Greg Abbott speaks during a campaign event on February 23, 2022, in Houston, Texas.

Following the leaked release of a draft ruling from the Supreme Court this week, suggesting that the Court is ready to undo nearly 50 years of abortion rights precedent, Gov. Greg Abbott (R-Texas) said he is looking at ways to dismantle a ruling from 1982 that protects undocumented children’s right to public education.

On Wednesday, Abbott said he was setting his sights on Plyler v. Doe, in which the Supreme Court said states were obligated to provide free education to all children in their borders, not just those who were U.S. citizens.

Perhaps emboldened by the apparent far right shift of the nation’s highest court (as exemplified in its possible anti-abortion ruling in Dobbs v. Jackson) — as well as its willingness to disregard decades of precedent — Abbott said he could relitigate the decision, citing allegedly high costs of providing education to undocumented immigrants in the state.

“Texas already long ago sued the federal government about having to incur the costs of the education program…. And the Supreme Court ruled against us on the issue,” Abbott said during an appearance on a conservative radio talk show.

“I think we will resurrect that case and challenge this issue again,” he added.

Plyler clarified whether the state of Texas, in 1975, violated the Equal Protection Clause of the 14th Amendment to the Constitution when it denied schools funding to educate children who were not United States citizens. The Supreme Court, deciding on the matter seven years later, determined that Texas had indeed infringed on those students’ rights.

The 14th Amendment does refer to citizens, not people in a general sense, in several parts of it. But at the end of Section 1 of the amendment, it says that states cannot “deny to any person within its jurisdiction the equal protection of the laws.”

The Supreme Court determined in Plyler that students who were undocumented immigrants were persons, in the eyes of the law, and were entitled to the same rights as students who were citizens.

“Whatever his status under the immigration laws, an [immigrant] is a ‘person’ in any ordinary sense of that term,” the Court’s majority opinion, written by then-Justice William Brennan, said.

“The undocumented status of these children … does not establish a sufficient rational basis for denying them benefits that the State affords other residents,” Brennan added.

Abbott’s questioning of whether he can go after those rights follows the warnings that several progressives have made this week in the wake of the draft opinion on abortion from the Supreme Court on abortion that was leaked to the public.

Rep. Alexandria Ocasio-Cortez (D-New York), for example, stated that the same questionable rationale that conservative justices were prepared to endorse in Dobbs could also be used to dismantle marriage equality and other civil rights protections that the Court has ruled upon in the past.

“SCOTUS isn’t just coming for abortion – they’re coming for the right to privacy Roe rests on, which includes gay marriage + civil rights,” Ocasio-Cortez tweeted Monday.

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