Plyler v. Doe: Undocumented Students and Post-Secondary Education

Summary: Plyler v. Doe lay the groundwork for states to recognize the value of awarding education to every group, regardless of citizenship status. Yet the evolution of education means that over thirty years later, its shortcomings are impossible to ignore.

Perhaps even from its conception, American society has recognized the value of education. Over a decade ago, Chief Justice Warren regarded education as “perhaps the most important function of state and local governments” – a “right which must be made available to all on equal terms.” In a country whose history is fraught with battles for liberty, various marginalized groups – from indigenous peoples to Latinx communities – have struggled to claim this right. And for many, specifically undocumented immigrants, the struggle continues. As immigration and naturalization policies increasingly come to conflict with education, questions of who deserves what and why are brought to the forefront.

Although the struggle for educational rights is far from over, undocumented immigrants have won various legislative battles. In 1973, the Supreme Court in San Antonio Independent School District v. Rodriguez determined that education was not a federally-protected constitutional right. Nine years later, however, in Plyler v. Doe, it both characterized and defined education as a “significant state benefit.” Plyler would prove to be one of the court’s most instrumental decisions regarding what educational benefits would be awarded to undocumented immigrants. By defining education as a “significant state benefit,” Plyler overturned a Texas statute that essentially allowed public schools to deny enrollment to undocumented children. Such a policy, the nation’s high court ruled, contrary to the state’s claims, failed to further a legitimate state interest.

The importance of Plyler goes beyond simply overturning a statue. In addition, Plyler demonstrated that the equal protection clause of the fourteenth amendment also applied to undocumented immigrants – prior to Plyler, the court had only ruled on fourth, fifth, and sixth amendment cases. It cemented the importance of education both individually and societally, holding that such importance warranted legal protection for all persons in the United States, not just citizens. As Justice Brennan wrote in the majority opinion, denying persons education would in effect create “a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor but nevertheless denied the benefits that our society makes available to citizens and lawful residents.” Most importantly, Plyler squarely reaffirmed that enforcing immigration and naturalization laws was a federal duty, not a state one: it banned K-12 educators from making inquiries that “expose immigration status, requiring social security numbers, or engaging in other behaviors designed to expose illegality.

As significant as Plyler may be, it leaves questions of post-secondary education – which can be controversial and legally complex – largely unresolved. Justice Brennan’s argument for education as a “significant state benefit” applied exclusively to K-12 education; in fact, Section 21.031 of Plyler specifies persons “over the age of 5 and under the age of 21 on the first day of September of any scholastic year.” Compulsory attendance, however, only applies to persons up to age 17, meaning that Plyler has left basic education for adults ages 17-21 largely undefined.

The absence of any post-secondary consideration in Plyler means that such issues must be considered separately. Legislature concerning post-secondary education, however, is markedly more restrictive than Plyler, raising concerns for undocumented students seeking educational opportunities. At their best, post-secondary school policies are unclear and misleading. Admissions policies for most state colleges and universities, for example, vary from state to state, and lack uniform guidelines on requirements on proof of legal residency, citizenship, or immigration status. Some schools restrict admission to legal residents altogether, but again, these policies vary from state to state. A survey conducted by the American Association of Collegiate Registrars and Admissions Officers “found that 53.6 percent of responding schools (613 of 2,000 the association’s member institutions) knowingly admit undocumented immigrant students, while many schools do not verify students’ citizenship or immigration status, regardless of institutional or state policies related to admission.” Unclear policies only raise additional barriers for undocumented immigrants, who may already face substantial discrimination or financial struggles both in their everyday lives and in their pursuit of college educations.

Even without unclear admissions policies, the existing legislature regarding post-secondary education poses significant obstacles to undocumented immigrants. While admissions policies are typically simply unclear or confusing, policies concerning financial aid are outright exclusive – which is especially problematic considering that most undocumented students already come from financially-burdened households and are unable to gain lawful employment. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, for example, holds that “unqualified ‘aliens’” are not eligible for any federal public benefit, including post-secondary education. Furthermore, most federal and state-based financial aid require proof of citizenship or permanent legal residence, automatically excluding undocumented students from financial opportunities such as federal student loans, Pell Grants, and work-study allocations.

Not only are undocumented students unable to acquire financial assistance; they are, in many cases, also forced to pay out-of-state tuition, a fact that is again made more troubling by the financial status of many undocumented students. Only two states offer state-funded financial aid for undocumented students, and only ten extend in-state tuition benefits to undocumented students at all. Five states ban undocumented students from receiving in-state benefits altogether. For most undocumented students, the reality is that a post-secondary education from a public institution is unobtainable – if not on administrative grounds, then on financial ones.

If the existing legislature is any indication, significant barriers must still be overcome for undocumented students seeking college educations. For a more accessible education to be realized, the importance of accessible post-secondary education must be recognized first. An argument similar to that offered in Plyler, where education is essential for democratic and societal well-being, could be extended beyond K-12 schooling. For example, for states, an educated populace could result in a larger and potentially more productive workforce. And as labor markets and the necessary skills to enter the workforce evolve, post-secondary educations could become instrumental not only to providing opportunities for undocumented students fleeing poor conditions, but to strengthening state economies.

Nearly forty years ago, Justice Brennan was concerned with restrictions on access to education creating an “underclass.” Today, that concern is amplified more than over. Unable to find legal employment and limited to menial and often exploitative labor, undocumented students perhaps have no choice but to pursue further education. The restrictive and unclear policies utilized in many states designed to bar undocumented students from colleges and universities do not only foreshadow the creation of an underclass: they guarantee it.

It is unlikely that the Supreme Court will reverse its decision to not recognize education as a constitutional right. Similarly, whether or not it will extend the idea that “education is fundamental to maintaining the fabric of our society” to post-secondary education remains to be seen. Until then, one fact remains clear: although post-secondary education may not be a right, the ability to improve one’s life is.

Author Bio: Isadora Toledo is a freshman from Buffalo, New York, planning to pursue a major in public policy and a minor in education.

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East Bay Sanctuary Covenant v. Trump: The Legality of President Trump’s Asylum Ban


Summary: Civil rights groups have filed a federal lawsuit on behalf of East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and the Central American Resource Center in Los Angeles that challenges the asylum ban signed by President Trump on the morning of November 9th. This lawsuit charges the Trump administration for violating the 1965 Immigration and Nationality Act, as well as the 1946 Administrative Procedure Act. President Trump’s invocation of national security powers could overhaul long-standing asylum laws that would lead to the deportation of thousands of refugees seeking protection from persecution.

Less than six hours after President Trump signed a proclamation preventing immigrants who illegally enter the U.S. from applying for and receiving asylum, civil rights groups began legal recourse. The American Civil Liberties Union, Southern Poverty Law Center, and Center for Constitutional Rights filed a complaint in the US. District Court for the Northern District of California. They allege that the Trump administration’s new asylum ban is illegal, because it violates both the U.S.’s immigration law as well as the federal statute that determines how administrative agencies can issue new rules.

Trump’s policy to restrict asylum for people crossing from Mexico and Central America has been implemented incredibly quickly. Just over the last few weeks, Trump’s intense focus on preventing the migrant “caravan” from entering the U.S. has lead to a drastic increase in restrictions against immigrants applying for asylum. Under the current Immigration and Nationality Act of 1965, immigrants who enter the U.S. legally or illegally are allowed to apply for asylum. However, they can still be subject to specific restrictions.

The Trump administration is attempting to use a two-part strategy to legally bar a vast number of immigrants who are attempting to enter the U.S. from Central America. First, the Trump administration added a restriction to who could seek asylum and who was subject to a presidential entry ban, similar to the one signed in 2017. Second, President Trump signed an entry ban on people who attempted to enter the U.S. from Mexico without going through official ports of entry. As a result of these two strategies, anyone who attempts to cross into the U.S. without going through official ports of entry from November 10th, 2018 to February 8, 2019 will not be eligible for asylum. Instead, they’ll only be eligible for an alternative process called withholding of removal or protection under the Convention Against Torture.

Someone who attempts to enter the U.S. from Mexico between official ports of entry would still be granted an interview with an asylum officer, but under Trump’s asylum ban the officer would no longer be required to screen for a “credible” fear of persecution due to race, religion, national origin, political opinion, or membership in a social group. Instead, the officer would only have to screen for “reasonable” fear, which is a much higher standard that requires a determination that persecution is more likely than not, instead of a significant possibility. The use of “reasonable” fear in asylum determinations is incredibly rare, and is only saved for people who have already been deported but have returned again or people who have committed a serious crime in their home country. The impact that the distinction between “credible” and “reasonable” has on people who pass asylum interviews and receive court dates is drastic: 75 percent of all asylum seekers pass credible fear interviews, and only about 25 percent pass reasonable fear interviews.

People who no longer pass the reasonable fear interview will be deported summarily, but people who do pass still aren’t eligible for asylum, only withholding of removal or protection under the Convention Against Torture. Although these two options would both allow the individual to stay in the U.S. legally, it’s much more difficult to receive and it doesn’t present a pathway to permanent residence in the U.S.

Because the number of asylum applicants in the U.S. has soared from five thousand in 2008 to ninety-seven thousand in 2018, a large number of people would be affected by the new policies. Thousands of asylum seekers from Central America could be immediately turned away and sent back to their home country, where they could likely be subject to the exact persecution that they were initially trying to escape.

The Trump administration attempts to justify this new policy by arguing that most asylum seekers are using credible fear screening in order to illegally sneak into the U.S. The administration believes their claims are fraudulent or don’t provide proof of persecution that would reach legal standards of asylum. Instead, these immigrants simply apply for asylum in order to be legally allowed to remain and work in the U.S. as they wait for their court date, then disappear before the date in order to remain in the U.S. illegally.

The Trump administration argues that the low approval rates of asylum applications is evidence that most asylum claims are not only insufficient, but also malicious in its attempts to defraud the system. In fiscal year 2016, the last year for which full statistics are available, 26 percent of all asylum cases decided in court resulted in absentia order, otherwise known as an order of deportation due to the defendant missing court. However, a CLINIC/ASAP report discovered that most families that missed court dates did so due to confusion, bad information, or unclear directions. Families weren’t purposefully missing court dates because they knew that their cases wouldn’t be approved – they were simply lost in the system due to bureaucratic insufficiencies.

President Trump also alleges his new immigration policy is crucial because the current system is overwhelmed; as a result, asylum seekers can wait days, or even weeks at the U.S.- Mexico border in order to present themselves to U.S. border inspectors.

However, despite all of the Trump administration’s arguments for why this policy is necessary, critics argue that President Trump’s asylum ban is still a violation of two distinct U.S. laws – the 1965 Immigration and Nationality Act, and the 1946 Administrative Procedure Act. This is because using the Immigration and Nationality Act, Congress was very specific and clear: entering without inspection is not a basis to categorically deny asylum to refugees. Nevertheless, President Trump’s order categorically denies asylum to any immigrant who crosses in to the U.S. between ports of entry. While Trump is granted powers to fill in legislative gaps left by Congress in order to execute policy, neither he nor his administration have the right to override their clear commands, which is exactly what they’re trying to do.

Furthermore, pursuant to the Administrative Procedure Act, there’s a high bar for Presidents to skip the regulatory review process. However, critics argue that President Trump has not yet reached that high bar, because the Trump administration signed the proclamation without proper procedural steps and without good cause.

Because the Trump administration will surely appeal any ruling that it might receive, this case is almost certain to end up in the Supreme Court. If President Trump’s policy was to stand, thousands of refugees would be forced to return home – back to a place of danger, mistrust, and potential persecution. Regardless, Trump will not hesitate to overhaul the current immigration system at every opportunity he has.

Ellen Wang is a sophomore from Dallas, Texas, pursuing a major in Economics and a double minor in Political Science and Biology.


Law and Order: The Philippine War on Drugs

Summary: In the year and a half since Rodrigo Duterte became president of the Philippines, thousands of Filipinos have died as a result of his extreme anti-drug policies.   

On June 30th 2016, Rodrigo Duterte assumed office as the 16th president of the Philippines.  He was elected by a landslide, with nearly twice the votes of the runner-up.  During his campaign, Duterte came under fire for everything from expletive-laden speeches in which he compared himself to Hitler to calling his own daughter a “drama queen” after she said she had been raped, yet it was his drug policy that drew the most attention.  In one speech, Duterte famously claimed, “There’s three million drug addicts.  I’d be happy to slaughter them.”

Even as mayor of Davao, Duterte was known for being tough on crime. He implemented armed civilian militias who were allowed to target anyone who posed a threat “to public order.”  The eradication of crime was a major cornerstone of Duterte’s presidential campaign, as he billed himself as the law and order candidate.

Death count estimates vary greatly, with some ranging as high as 13,000.  A series of high-profile deaths began to erode public confidence in Duterte.

In February 2017, a South Korean businessman was kidnapped and killed by the police, which led to Duterte temporarily suspending the anti-drug enforcement of the national police, but he later reversed this decision.

For the first year of his term, Duterte polled well with his constituents–but in August 2017 his popularity began to wane after police killed 96 people in Manila in what they called a “one-time, big time crackdown.  In particular, the death of 17-year-old Kian Loyd delos Santos attracted national attention when surveillance footage contradicted police testimony that delos Santos had resisted arrest.

The bad publicity prompted Duterte to again pull the police force off of drug crackdowns.  He decided that the Philippine Drug Enforcement Agency would handle all cases moving forward.

Capital punishment was abolished in 2006, under President Gloria Macapagal Arroyo, but in March 2017, the Philippine House of Representatives passed House Bill 4727, which reinstated the death penalty for drug offenses. These extra-judicial killings also violate sections 1, 12, and 14 of the Philippine Bill of Rights, all of which deal with due process.

When the EU, the UN, and the US condemned the ‘War on Drugs,’ Duterte accused the West of hypocrisy.  Although Duterte’s actions violate several instances of international law, he has received little concrete pushback from the international community, in large part due to his threats that he would turn to China or Russia if the Philippines faced any economic sanctions or loss of international aid.

This new stance on the death penalty violates the UN’s International Covenant on Civil and Political Rights, which the Philippines signed and ratified.  Article 6 of the Covenant explicitly condemns the death penalty and goes on to state: “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes…”

The Filipino government released a statement immediately after the UN convened to discuss the drug war, claiming that there were no extra-judicial killings going on. “These are deaths arising from legitimate law enforcement operations or deaths that require further investigation following established rules of engagement by the country’s law enforcers.”

Duterte threatened to expel ambassadors from the European Union who he claimed were plotting to force the Philippines out of the UN, though he later walked back his comments after learning the group did not represent the EU in any official capacity.

UN human rights chief Zeid Ra’ad al-Hussein suggested that Duterte be investigated for murder, after the president said he had personally shot and killed three drug users when he was mayor.  In response, Duterte called al-Hussein an “idiot” and threatened to withdraw from the UN, the International Criminal Court, and the Enhanced Defense Cooperation Agreement with the US.

Through the EDCA, the US gained an advantageous military position in southeast Asia.  In return, the Philippines received humanitarian and military assistance.  Duterte’s threat of withdrawal accompanied a claim that he would rather buy arms from Russia and China.

US-Philippines relations have been rocky under Duterte.  President Obama canceled a trip to the Philippines to discuss the human rights situation there after Duterte disrespected him by degrading his daughter with a series of sexual expletives.  President Trump drew widespread criticism from human rights groups after he invited Duterte to the White House, although Duterte declined the invitation.  Trump will travel to the Philippines on November 12, as part of his tour of southeast Asia.

A presidential term in the Philippines lasts 6 years.  At 72, Duterte is already the oldest Philippine president ever.  The Philippine constitution limits presidents to one term only, but there is no way of knowing how many Filipinos will die before his successor takes office in 2022.