Throughout American history, debates surrounding immigration have consistently highlighted “the good, the bad, and the ugly” aspects of the nation’s political psyche. The current controversy involving Metro State’s effort to provide a reduced, out-of-state tuition rate for undocumented students who have gone to high school in Colorado is certainly no exception to that rule.
But there is an added touch of irony in the fact that the advisory opinion issued by Colorado Attorney General John Suthers criticizing Metro’s move came within days of the 30th anniversary of the U.S. Supreme Court’s opinion in Plyler vs. Doe. That 1982 opinion in a case from Texas mandated that states, under the Constitution’s equal protection clause, must provide for the free education of illegal or undocumented students in their public schools. Persons, after all, are persons under the 14th Amendment regardless of their immigration status.
Writing for the court’s 5-4 majority, Justice William Brennan made several observations worth considering during the current debate as to whether or not Metro State’s plan creates a “public benefit” contrary to state law. While Brennan recognized that, according to precedent, public education is not a fundamental right guaranteed to individuals under the Constitution, he continued with these words: “But neither is it merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.”
Education, in short, plays an important role both in maintaining the country’s basic institutions and in avoiding the serious harm done to a person when deprived of it. To do what Texas had done, in Brennan’s words, imposes “a lifetime hardship on a discrete class of children not accountable for their disabling status.” Significantly, Brennan does place those children into a suspect classification that would trigger the court’s strictest scrutiny of the state’s law under the 14th Amendment. It was enough to note that the students in question were persons within the jurisdiction of the state and therefore entitled to the equal protection of its laws.
In reaching that conclusion, the court rejected the argument made by Texas that illegal immigrants were not actually within the jurisdiction of the state and thereby not covered by the equal protection clause. Instead, the court reminded us all that the protections of the 14th Amendment extend to all regardless of citizenship or immigration status. Within the boundaries of a state, all persons subject to state law are entitled to equal protection. That is a 30-year-old message worth repeating time and time again.
Of course, the Plyler decision only applies to K-12 education, and there were justices registering their dissent from the majority view (though agreeing with the stated merits produced by education). Still, that decision tells us something of importance that continues to resonate today: Limiting education serves neither the interests of society nor of the individual. When you think about it, providing education should be our default position because it is clearly the course of action that benefits us all, collectively and individually. In contrast, imposing “a lifetime hardship on a discrete class of children not accountable for their disabling status” benefits no one at all.
Norman Provizer is a professor of political science and the director of the Golda Meir Center for Political Leadership at Metropolitan State College of Denver.
