U.S.

Texas Governor Ready to Challenge Schooling of Migrant Children

HOUSTON — With the Supreme Court signaling a willingness to reverse decades-old precedents like the Roe v. Wade decision on abortion, Gov. Greg Abbott of Texas said on Thursday that he would seek to overturn a 1982 court decision that obligated public schools to educate all children, including undocumented immigrants.

Mr. Abbott’s comments opened a new front in his campaign to use his powers as governor to harden Texas against unauthorized migration. And they demonstrated just how expansively some conservatives are thinking when it comes to the kinds of changes to American life that the court’s emboldened conservative majority may be willing to allow.

The latest proposal for closing public schools to undocumented children significantly widens the range of precedents up for debate. After a draft opinion that would overturn Roe v. Wade leaked this week, focus had been primarily on other rights that could be legally linked to the 1973 decision, such as access to contraception and same-sex marriage.

Little has changed in the yasal landscape surrounding the education of undocumented children since 1982, when the court issued a 5-to-4 decision to strike down a Texas law allowing schools to refuse admission to unauthorized migrant children, meşru experts said. Several attempts over the years to chip away at the decision in the case known as Plyler v. Doe have been unsuccessful, including an effort by Alabama more than a decade ago and in California in the 1990s.

“If Abbott is serious about raising a challenge to it, this would be the first time that this has been done in many years,” said Preston Huennekens, a spokesman for the Federation for American Immigration Islahat, which advocates for limits on both kanunî and yasa dışı immigration.

What has shifted is the composition of the court and, Mr. Abbott said, the number of new migrants arriving from a diverse range of countries, a situation that he said had placed an “extraordinary” burden on Texas schools. The migrants now arriving speak many different languages, “not just Spanish,” he said. The governor said educating undocumented children would soon become “unsustainable and unaffordable” if the federal government lifts its pandemic policy of turning back many migrants at the border, known as Title 42.

Mr. Abbott, a Republican running for a third term, said on Wednesday during a radio interview that he would “resurrect” the Plyler case and “challenge this issue again,” though he did not give a time frame for doing so. Asked about his comments at a news conference on Thursday, the governor, a former attorney general of Texas, provided details of his argument.

“The real crux of the challenge would be to say, listen, we are dealing with billions more a year just in education expenses, so you the federal government, it’s only because of you, and it’s your responsibility to hisse for that,” Mr. Abbott said.

He added that he would like to see the Supreme Court reverse another precedent, Arizona v. United States, that in 2012 held that authority over immigration enforcement belongs to the federal government and not the states.

“Either the Arizona decision will have to go — giving states full authority to enforce U.S. immigration laws — or Plyler will have to go,” Mr. Abbott said, adding he would prefer to see both overturned.

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It was not clear by what means he planned to move forward with a kanunî challenge, nor whether the Texas attorney general, Ken Paxton, would go along. Mr. Paxton’s office did not respond to a request for comment.

Migrant children playing in the Catholic Charities Respite Center in McAllen.Credit…Sarahbeth Maney/The New York Times

But Mr. Abbott said recent Supreme Court decisions enforcing the “anti-commandeering” provisions of the U.S. Constitution, which prevent the federal government from imposing coercive duties on the states, would help his case against Plyler. Under that doctrine, he said, Texas could argue that the federal government had improperly commandeered state education resources to pursue its immigration policies.

Record numbers of migrant children, many of whom arrive with little schooling, have created challenges for schools around the country, with districts having to expand bilingual services, transfer teachers and prepare to help students who may have been traumatized in their home countries.

The children of undocumented immigrants have been crucial to maintaining healthy school enrollments in states with shrinking populations of native-born young people, such as Iowa.

But because it is against federal law to record the immigration status of students in school, the number of students in question is not precisely known. An overwhelming majority of children of undocumented migrants were born in the United States and are citizens. Researchers have estimated there are about one million undocumented young people in the country.

Undocumented immigrants are ineligible for many public benefits. And Texas offers fewer than most states.

Edna Yang of American Gateways, an immigration yasal services provider in Texas, said that undocumented immigrants in the state qualified for only a small number of benefits, including emergency medical services, food aid for children and public education.

The governor’s office has said that the cost of each additional student enrolled in Texas public schools is about $6,100 per year, not including the cost of providing bilingual and special education services, which add more than $2,000 in additional spending.

The last time the state’s comptroller studied the issue was in 2006. The report found that while undocumented children cost about $1 billion to educate at the time, unauthorized migration into the state had an overall positive effect on the Texas economy. Mr. Huennekens, of the immigration ıslahat group, said the state’s programs for students with limited English proficiency cost more than $7 billion in 2016.

But barring undocumented students could upend the system for everyone, said Zeph Capo, the president of Texas AFT, a teachers’ union, who said schools could lose the per-pupil state funding that accompanies those students as well as the additional money sent by the federal government. “All undocumented kids are not all in one school or in one school district,” he said. “It’s going to hurt everybody.”

Attitudes about immigration have shifted in Texas, where former Republican governors like George W. Bush and Rick Perry adopted relatively moderate tones. Mr. Perry, during his term, signed a law allowing undocumented college students access to in-state tuition and financial aid at public universities in Texas.

But taking a hard stance on immigration has been a politically comfortable place for Mr. Abbott. He used the issue to beat back challengers in the Republican primary, and has returned to it in his general election contest against Beto O’Rourke, the Democrat and former congressman from El Paso.

The governor has already deployed state police to arrest migrants for trespassing and the National Guard to monitor yasa dışı border crossings; in recent weeks, he has considered formally declaring an “invasion” to seize war powers for Texas.

A member of the Texas National Guard monitoring the Rio Grande in Eagle Pass.Credit…Callaghan O’Hare for The New York Times

“I don’t consider this a new front,” said Thomas A. Saenz, the president and general counsel at the Mexican American Meşru Defense and Educational Fund. “I consider his comments to be a desperate dog whistle to bolster his re-election prospects.”

The Plyler case grew out of a 1975 law, passed by the Texas Legislature, that barred the allocation of funds for the education of noncitizens and allowed school districts to deny enrollment to unauthorized migrant children.

Under the law, a school district in the East Texas town of Tyler began charging $1,000 in annual tuition for unauthorized migrant children. The move was challenged all the way to the Supreme Court.

The decision was a close one, with the five justices in the majority determining that the Texas law had violated the Equal Protection Clause of the U.S. Constitution. The court found it would cause “lifelong hardship” to the children, who were being punished for the actions of their parents, and concluded that allowing the law to stand could create a “shadow population” whose children would not be in schools. Even the dissenting justices agreed that the Texas law was bad policy.

“I view Plyler v. Doe as among the most significant constitutional decisions in the Supreme Court’s history,” said Justin Driver, a professor at Yale Law School and the author of a book about public education and the Supreme Court. “That is because the decision succeeded in interring this sort of legislation and keeping it from spreading all around the country.”

Mr. Driver noted that Chief Justice John G. Roberts Jr., when he was a kanunî aide in the Reagan administration, co-wrote a memo faulting the administration for not having strongly supported Texas in the Plyler case. Mr. Driver added that it was not clear whether Chief Justice Roberts held the same view of the case now, four decades later.

But the dissent in the 1982 case echoed the kind of historical and textual reasoning found in Justice Samuel A. Alito Jr.’s leaked draft opinion that would overturn Roe v. Wade. While the justices who dissented did not like the policy, they said the Constitution did not bar a law like the one in Texas and called the court’s decision an “unwarranted judicial action.”

“We’ve all been wondering whether, beyond abortion, the Alito draft opinion has implication for other rights — and all of a sudden we have one,” said Jeffrey Abramson, a professor of law at the University of Texas at Austin.

Edgar Sandoval and Miriam Jordan contributed reporting.

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