Carnegie Reporter, Vol. 4, No. 2 | Educating Immigrant Students

Public schools have long been an important component of life for immigrant children in the United States. What about when those students are undocumented?

On February 25, 2007, the honorable William Wayne Justice celebrated his 87th birthday. He’s now a little hard of hearing. He walks with a slight shuffle, relies on hand-rails to get safely up and down steps, and he’s forgone the sports cars that once took him through the back roads of Texas at breakneck speed. But he’s lost none of the passion, the conviction, or the sense of justice (if you will) that he had nearly three decades ago when he ruled in favor of a group of undocumented immigrant children who were effectively excluded from attending the public schools of Tyler, Texas.

Above: Judge William Wayne Justice At Left: Students and supporters of immigrant rights rally in front of the New Jersey Statehouse in Trenton on March 30, 2006.

Photo: Associated Press

In his 39-year tenure on the bench as a U.S. district judge, Justice has presided over several high-profile civil rights cases in which he defied prevailing public opinion and ruled in favor of the disadvantaged, most notably the incarcerated and the young. But he says the case he is most proud of is Plyler v. Doe (1982). Justice says he doesn’t know exactly how many youngsters have received an education because of that ruling—ultimately upheld by the Supreme Court—but he firmly believes that had the U.S. judicial system barred them from going to school, they would be living very different lives.

And the societal cost would be much greater. “Children raised without any education at all are likely to become burdens on the rest of society,” he says. “They won’t be able to make any real amount of money unless they get into crime, like dope traffic or something of that sort.” And that, he believes, is just as true today as it was when he made his ruling in Plyler v. Doe. Simply put, he says, “If youngsters get an education, they can make a living.”

Yet doubts about educating undocumented immigrant children are once again becoming part of the subtext in a larger immigration debate, one fueled by strong anti-immigrant sentiments and renewed efforts to send undocumented newcomers back home. This is the third time in the past three decades that the cost of educating undocumented immigrant children has been called into question, says Jeffrey Passel, a senior research associate at the Pew Hispanic Center. The first led to Plyler v. Doe. The second—spearheaded in California by restrictive immigration measures included in a statute called Proposition 187—took place in the early 1990s. (The initiative, designed to deny illegal immigrants social services, health care, and public education, passed by a slim margin but was later overturned by a federal court.)

Each anti-immigrant wave, Passel says, has coincided with an economic down-turn. In the late 1990s, for example, the immigrant flow into the United States was going strong. It may have even reached its peak. Then, however, the economy was also doing well and there were relatively few complaints about the presence of undocumented immigrants. There was “huge growth in employment and labor force participation,” Passel points out, also noting that “the peak period of immigration coincided with major improvements in the labor force for everybody.”

Since then, the landscape has come to resemble that of 1975 when the Texas legislature passed a law that withheld state funding for undocumented students, thereby discouraging local school districts from accepting them. The issue came to a head two years later when the Tyler Independent School District—headed by Superintendent James Plyler—responded to the new law by requiring undocumented immigrants to pay $1,000 in tuition. In September 1977, a class action suit was filed against the school district on be-half of sixteen undocumented children from four Mexican families residing in Tyler— the rose capital of the world.

“The only basis we could figure out for the legislature’s decision to pass that law,” Justice says, “was just simply prejudice.” In his ruling, he declared that undocumented immigrant children are protected under the 14th Amendment, which decrees that no person shall be denied equal protection of the law and no person shall be denied life, liberty or property without due process of the law. “Already disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable racial prejudices,” he wrote at the time, “these children, without an education, will become permanently locked into the lowest socioeconomic class.”

The fifth circuit U.S. Court of Appeals upheld his decision, as did the Supreme Court in a 5-4 decision reached on June 15, 1982. The majority opinion, written by Justice William J. Brennan, said that public education “has a fundamental role in maintain-ing the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.”

Effectively prohibiting undocumented immigrant children from getting an education, the court said, would promote “the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.”

Even the minority opinion, which said Congress, not the courts, should resolve the issue, acknowledged that “it is senseless for an enlightened society to deprive any children—including illegal aliens—of an elementary education.”

History/Numbers
There were no restrictions on immigration to the United States until the Immigration Act of 1875 prohibited people who, according to the 434-page report, The New Americans: Economic, Demographic, and Fiscal Effects of Immigration (James P. Smith and Barry Edmonston, Editors; National Academies Press, 1997) were “destitute, engaged in immoral activities, or physically handicapped.” That law coincided with the onset of the first large immigration wave, which spanned the late 1800s and the early 1900s and consisted largely of Italians, Germans, Russians, the Irish, and citizens of the former Austro-Hungarian Empire.

By the early 1920s restrictive quotas were put in place that would affect the ebb and flow—mostly the ebb—of newcomers for the next five decades. By 1970, immigrant numbers reached a new low, accounting for one out of every twenty Americans. But legislation passed in 1965 eventually reversed that trend. Amendments to the Immigration and Nationality Act removed longstanding quotas and initiated a second wave of immigration that in many ways is analogous to the first.

Then—like now—there was widespread concern about the impact immigrants would have on the economy, the workforce, governmental outlays and education. In his book Schooling of the Immigrant (published in 1920 as one volume of the Carnegie Americanization Study), Frank V. Thompson cited factors that complicated “the great problem” of immigration in the early 1900s. They included “the preponderance of immigrants from non-English-speaking nations,” and “the fact that our newer immigrants have come from countries having a high degree of illiteracy.” These concerns proved to be unfounded, however, as foreign-born populations, once shunned for being different and largely uneducated, assimilated into the American mainstream.

“We love immigrants looking backwards,” says Marcelo Suarez-Orozco, Courtney Sale Ross University Professor of Globalization and Education at New York University. “When we talk about immigration now, everybody gets glossy-eyed about, ‘my great, great grandparents who came from Ireland or from Italy or from Eastern Europe, and they worked so hard, and over time and over the generations, they became Americans, and we’re all very proud of them.’ And that’s the American dream, right?”

But “in the here and now,” says Suarez-Orozco, “immigration always, always generates fear and anxiety.” Pointing to the example of the U.S. Supreme Court, Suarez-Orozco notes that today, seven of the nine members are either Catholics or Jews. “This would have been unimaginable one hundred years ago when people were saying that Eastern European Jews and Italian and Irish Catholics will never become Americans.”

Then—at the turn of the 20th century—the total population of the United States was 76 million. On October 17, 2006 (at about 7:46 a.m.), it hit the 300 million mark. That baby was probably born in Los Angeles, Suarez-Orozco says, and was probably the daughter of Mexican immigrants. “Probably, her name is Maria…She is the future of America. She is a child of an immigrant. She is a U.S. citizen like you and me.”

It has been four decades since the U.S. population hit the last major population milestone—two hundred million in 1967. Ever since, Hispanics have been the fastest growing segment of the population, and much of that growth has been fueled by immigration. Hispanics now account for 14.5 percent of the total population, compared to 4 percent in 1966, and by mid-century, the U.S. Census Bureau predicts they will make up almost one-fourth of the total population.

All immigrants—Hispanic and non-Hispanic—make up 12 percent of the U.S. population and 14.7 percent of the labor force. The undocumented amount to an estimated 12 million people—56 percent from Mexico, 22 percent from elsewhere in Latin America, and 13 percent from Asia—and they account for roughly 4 percent of the total U.S. population.

They comprise 5 percent of the civilian labor market, and in certain fields they represent a much higher share—36 percent of all insulation workers, 29 percent of all roofers, 27 percent of all butchers, 23 percent of all dishwashers, 20 percent of all cooks, 19 percent of all parking lot attendants, and 15 percent of all laundry and dry-cleaning workers.
Of the undocumented, 1.8 million are children, another 3.1 million youngsters are the children of undocumented parents, and they face a country that is very different from the one their predecessors knew a century ago.

Next page: In 1982, the Supreme Court ruled that denying education to undocumented students would create a subclass of illiterates and add to unemployment and crime.

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