We first have to take a trip in Mr. Peabody’s time travel WAYBAC Machine, to 2011 when Arizona’s leading anti-immigrant racist, then Senate President Russell Pearce, unsuccessfully tried to prohibit undocumented immigrant children from receiving a public school education, even though it was a violation of a 1982 Supreme Court decision. Pearce moves to officially ban illegal immigrants from schools, driving:
The president of the state Senate introduced legislation Monday to ban illegal immigrants from state universities and community colleges, make it a crime for them to drive in Arizona and include new public school reporting requirements that could induce the parents of children not here legally to keep them home.
SB 1611 also would put companies that do not use a federal database to check the status of new workers out of business. And it would require cities to evict anyone in public housing who cannot prove legal presence in this country.
[P]earce said SB 1611 [immigration omnibus bill] is not [directly] challenging a 1982 U.S. Supreme Court ruling which forbids schools from refusing to enroll students who cannot prove they are legal U.S. residents. But he said nothing in the ruling prohibits schools from asking, as long as no student is turned away for failing to provide the documentation.
“We’re just counting citizens,” Pearce said.
But the effect could be the same.
Under current law, parents need provide only some proof of a child’s age, such as a certified copy of a birth certificate. But nothing requires that birth certificate be from the United States.
SB 1611 alters that list, with a parent now having to provide a birth certificate from U.S. states or territories, a U.S. passport, a certificates of naturalization or one of several other documents.
What could make it a deterrent is existing law which says if a parent doesn’t provide the document — in this case, one of the new documents — the school is required to notify law enforcement.
The bill never even got out of the Senate that Pearce unbelievably presided over.
Why am I taking this trip down memory lane? First, because nothing has changed in Republcan Party politics over the past 30 years or so, going back to California Gov. Pete Wilson’s Proposition 187 (aka the Save Our State (SOS) initiative) in 1994. The cruelty has always been the point.
Second, because the leaked draft opinion of Justice Samuel Alito in the abortion case of Dobbs v. Jackson Women’s Health Organization contains extremist and illogical legal reasoning which can be used by the New Right to attack numerous other longstanding Supreme Court precedents in which there has long been a “reliance interest.”
I don’t care how the draft leaked. That’s a sideshow.
What I care about is that a small number of conservative justices, who lied about their plans to the Senate, intend to deprive millions of women of reproductive care.
Codifying Roe isn't enough. We must expand the court.
— Adam Schiff (@RepAdamSchiff) May 4, 2022
In fact, the two-term white Christian Nationalist governor of Texas, Greg Abbott, who engages in as many or more anti-immigrant racist stunts as Arizona Sen. Russell Pearce ever did, recognizes this possibility and is reviving what Sen. Pearce attempted to do more than a decade ago, but he wants to go bigger and get this reactionary radical Republican Supreme Court to actually overturn the 1982 Supreme Court decision.
The New York Times reports, Texas Governor Ready to Challenge Schooling of Migrant Children:
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.
Gov. 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 legal 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, legal 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 Reform, which advocates for limits on both legal and illegal immigration.
What has shifted is the composition of the court and, Gov. 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.
Gov. 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 pay 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.
[Gov.] 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 legal 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 reform 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. Gov. 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 [white Christian Nationalist] Gov. 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 illegal border crossings; in recent weeks, he has considered formally declaring an “invasion” to seize war powers for Texas.
“I don’t consider this a new front,” said Thomas A. Saenz, the president and general counsel at the Mexican American Legal 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 legal 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.
Education Week reports, Texas Governor Sparks Backlash With Talk of Rolling Back Free School for Immigrant Kids:
Gov. Greg Abbott has infuriated immigration advocates and educators by suggesting Texas may challenge a longstanding U.S. Supreme Court decision that says states and localities can’t bar unauthorized immigrant children from attending public schools.
On Thursday, critics assailed the Republican governor as “hare-brained” and “cruel.”
Beto O’Rourke, Abbott’s Democratic opponent in the November election, went further.
“He’s trying to defund our public schools,” O’Rourke said at a news conference in Austin.
We won’t let Abbott defund our kids’ public school classrooms. pic.twitter.com/2PjUg1em9B
— Beto O'Rourke (@BetoORourke) May 10, 2022
Abbott is already underfunding our classrooms by $4,000 per student.
The last thing we need is to have him take our tax dollars out of our kids' schools and send them away to private schools. https://t.co/MThxlULXA0
— Beto O'Rourke (@BetoORourke) May 10, 2022
O’Rourke blasted Abbott for threatening settled constitutional law that has opened K-12 classrooms to all youngsters, regardless of immigration status.
“This is very telling, and I want everybody to pay specific attention to the phrasing of this,” O’Rourke said at a news conference at the Texas Capitol. “Governor Abbott is against providing public education to all the children of the state of Texas. Now he’s saying out loud what we know he’s been working on ever since he became governor — he’s trying to defund our public schools.” O’Rourke noted that teacher salaries in Texas badly lag those of their counterparts in other states.
* * *
The criticisms followed Abbott’s appearance by phone on a San Antonio radio talk show, during which he agreed with the host that the costs of educating a growing number of immigrant children in public schools and in many languages “are extraordinary.”
Also, Abbott said “times are different” from four decades ago, when the high court ruled unconstitutional a Texas law that allowed school districts to charge tuition to parents of unauthorized immigrant school children — in effect, a blockade.
Tyler schools sought to impose annual tuition per child of $1,000, the equivalent today of about $5,300.
Other than to say that migrants are entering Texas from 155 countries and speaking many languages, Abbott did not elaborate on what’s changed that would persuade the Supreme Court to overrule its 1982 decision in Plyler v. Doe.
* * *
Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, or MALDEF, slammed Abbott as an “irresponsible” and “desperate” practitioner of “dog-whistle populism” in the mold of former President Donald Trump.
“First, Abbott needs some remedial education on Plyler itself,” Saenz said in a written statement.
“This was a case brought against Texas, not by Texas, as Abbott asserted. The case was filed by MALDEF on behalf of students threatened by a Texas statute allowing schools to exclude undocumented students from public school.”
In the four-decade-old ruling, the Supreme Court split 5-4 on declaring the Texas law unconstitutional. But even the four dissenters agreed with the majority that Texas was unwise to pass the law, Saenz noted.
“All of the justices, including then-Associate Justice William Rehnquist, agreed that the Texas law seeking to exclude undocumented children from school was bad public policy,” he said.
Asked about Abbott’s remarks, White House press secretary Jen Psaki said, “That’s ultra-MAGA right there. … Denying public education to kids, including immigrants to this country, I mean, that is not a mainstream point of view.”
Abbott’s stance, she added, is “way out of the mainstream.”
* * *
David Leopold, an immigration attorney and legal adviser to the advocacy group America’s Voice, said Abbott has helped build an “anti-immigrant judicial pipeline” [The Texas Pipeline: Texas federal district courts, to the Fifth Circuit, to SCOTUS] and can now “confidently broaden his war on immigrants to a brazen attack on undocumented children,” knowing “his judicial challenge to Plyler will land in the courtroom of one of his Republican political allies.”
Zeph Capo, president of Texas AFT, a teachers’ union, lashed Abbott’s remarks as “cruel, small-minded thinking.”
“If the governor succeeds, he would be disrupting thousands of Texas school campuses, thrusting them into a world where spiteful adults target children with questions about their legal status,” Capo said in a written statement. “Students would face speculation over the color of their skin or their accent, even if they are legal residents.”
According to the late University of Houston Law Center professor Michael Olivas, who wrote the 2012 book No Undocumented Child Left Behind, the Texas Legislature held no public hearings in 1975 on the provision letting school districts charge tuition to parents of unauthorized school children.
“Certain border Texas school superintendents had supported the legislation, which was enacted without controversy as a small piece of larger, routine education statutes,” Olivas recounted in a 2010 article previewing his book.
Tyler, where the superintendent was James Plyler, had about 60 unauthorized immigrants enrolled out of total student population of about 16,000. Invoking the new state law, Tyler began charging $1,000 annual tuition for each unauthorized immigrant student. According to Olivas, a Catholic lay worker objected to a local lawyer, who with MALDEF filed a case in federal district court on behalf of four families, whom the court allowed to be identified using pseudonyms.
Though the district court judge in 1978 found both the state law and Tyler’s policy unconstitutional, as violating the 14th Amendment’s equal protection clause, appeals took four years to resolve. The Plyler case and a similar one from Houston went to the U.S. Supreme Court for arguments in 1981.
The next year, five justices affirmed the district court, saying Texas had failed to show its denial of a K-12 education to some children “furthers some substantial state interest.” Barring unauthorized immigrant children from school is “an ‘ineffectual’ means of deterring unlawful immigration, at least when compared to a prohibition against the employment of illegal aliens,” said Justice William Brennan, writing for the majority.
Because of “circumstances beyond their control,” the unauthorized immigrant children would be accorded second-class status, a “treatment that the 14th Amendment was designed to abolish.”
Brennan warned, “The stigma of illiteracy will mark them for the rest of their lives.”
RE Abbott and schools: Why in the world would anyone want to have a bunch of uneducated people running around? I guess fools do foolish things.
Paul blumenthal writes at Huffington Post, “Yet Again, A Judicial Counterrevolution Looks To Chain The Country To An Imagined Past”, https://www.huffpost.com/entry/scott-alito-roe-v-wade_n_6274013be4b046ad0d7964f4
By repealing the national ban on the establishment of slavery in territories located north of the Mason-Dixon line and returning the decision to the territories [ in Dred Scott v. Sanford], Justice Taney hoped the decision would end the agitation around the slavery issue in favor of his pro-slavery views. For his part, Buchanan hoped it would also destroy the new and growing anti-slavery Republican Party by taking their main issue, prohibiting slavery in the territories, away from them.
Today, another counterrevolution is under way at the Supreme Court. This week, Politico published a draft opinion written by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett that would overturn the 49-year-old decision in Roe v. Wade granting women the right to an abortion.
Like the court in Dred Scott, today’s robed counterrevolutionaries reveal themselves and the court as nakedly political and partisan actors. The court has always been a political entity, but it seeks to mask this nature with a mythology hiding its political nature in legal theories, citations to precedent and popular conceptions of the rule of law. It occasionally bares its political teeth to the public in cases like Dred Scott. And now it’s doing the same in this leaked draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey.
Alito’s draft opinion carries with it key features of the Dred Scott decision. It features nasty language demeaning the subject of the opinion and relies on an inaccurate history of law and precedent to justify the political goal he wishes to achieve.
Taney’s Dred Scott opinion drips with contempt for anyone who could possibly think that Black people could be citizens of the United States or that anyone in the Founding generation would approve of such belief. Taney argued that the United States, as a nation formed for the benefit of the white man, is both originally and fundamentally racist towards Black people. This racism was inborn from English law, belief and custom. And it was, therefore, ineradicable.
“[F]or more than a century,” before the founding, Black people were “regarded as beings of an inferior order,” who were “unfit to associate with the white race either in social or political relations,” Taney wrote.
“This opinion was at that time fixed and universal in the civilized portion of the white race,” he added, therefore, “[n]o one seems to have doubted the correctness of the prevailing opinion of the time.”
Taney was saying that the original sentiment of colonial and revolutionary era white Americans should apply to the law forever. This has a familiar ring to modern ears. Its sound can be heard in Alito’s leaked opinion.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes. “On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
Elsewhere, Alito writes that Roe and Casey “must be overruled,” because the “Constitution makes no reference to abortion,” and “no such right is implicitly protected by any constitutional provision,” because “any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
Like Taney, Alito’s opinion determines that the law in America can be fixed based on sentiments expressed in the 18th century and earlier ― at least when fixing such sentiments helps reach the desired policy result.
As Taney provided his own history of U.S. law to show the country to be originally and fundamentally racist, Alito provides his own history lesson to show the country never provided reproductive rights to women. In both cases, their history is cherry-picked to help them reach their desired result.
When Taney claimed that it was a “fixed and universal” opinion that Black people were not meant to be included in the grant of rights provided to citizens in the Constitution or “all men” in the Declaration of Independence, he provided a litany of laws treating Black people as “inferior” to back up his claim.
But at the time of the adoption of the Articles of Confederation, the precursor to the Constitution, New Hampshire, Massachusetts, New York, New Jersey and North Carolina provided citizenship and voting rights to all “free native-born inhabitants,” Justice Benjamin Curtis noted in his Dred Scott dissent. These state constitutions continued to provide such rights through the adoption of the Constitution.
Clause 4 of the Articles of Confederation stated: “The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States.”
The exclusions here did not include any mention of race or prior enslavement, Curtis noted. When delegates met to write and adopt the Articles of Confederation, they rejected an amendment from the South Carolina delegates to change the phrase “free inhabitants” to “white inhabitants.”
Alito’s claim that the right to an abortion is not “deeply rooted in this Nation’s history and tradition” rests on similarly faulty ground. To back up his claim that abortion rights are not “deeply rooted,” Alito cites the fact that 28 of the 37 states banned abortion throughout pregnancy at the time of the adoption of the 14th amendment, which contains the Due Process Clause that the court in Roe relied on to grant abortion rights.
“Alito’s argument about how the common law treated abortion is also remarkably weak,” Adam Winkler, a constitutional law professor at UCLA Law School, tweeted on Wednesday. “Nearly all the evidence that he cites shows that pre-quickening (about 16 weeks), abortion was not criminalized.”
“Quickening,” means the moment the mother can feel the fetus move. Every state at the founding allowed for abortion up to quickening, according to a review of the legal history by University of California-Davis law professor Aaron Tang.
States later admitted to the Union that Alito includes in his account, like Louisiana and Nebraska, only banned abortion by “drug,” “poison,” or “noxious substance.” And, Tang noted in a tweet, Alito includes Florida’s abortion ban, even though it was adopted after the 14th amendment.
“These are not just incidental historical mistakes,” Tang tweeted on Wednesday. “The entire crux of Alito’s conclusion that there’s no [right] to abortion at any point in pregnancy is his belief that most states banned it when the [14th amendment] was adopted, such that it’s not ‘deeply rooted in history.’”
Even if we are to grant Alito the fact that no state constitution granted the right to an abortion, this simply reveals the denial of a right to a class of person ― women ― who were “legally regarded as second-class citizens, kept out of medical institutions and public office and banned from owning property,” as HuffPost’s Lydia O’Connor writes.
“There were no women among the delegates to the Constitutional Convention,” writes historian Jill Lepore in The New Yorker. “There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.”
[E]ven if [the draft opinion] is not the final decision, it reveals that five justices are willing to sign their names to a shoddy rollback of rights with no basis in history or law.
After 50 years seeking all encompassing power, the conservative legal movement has reached its apotheosis. It climbed the mountaintop after Donald Trump won the 2016 presidential election despite losing the popular vote by nearly three million votes. He then became the first president since Ronald Reagan to appoint three justices to the court, thanks in part to Sen. Mitch McConnell’s (R-Ky.) [unconstitutional and illegal] refusal to hold a hearing on President Barack Obama’s nominee Merrick Garland in 2016 and Justice Ruth Bader Ginsburg’s refusal to retire and have Obama appoint her replacement.
The court’s six-vote conservative supermajority, founded on the anti-majoritarian pillars of the Senate and the Electoral College, can now go about finishing the agenda that conservative presidents going back to Ronald Reagan could not do through legislation or executive action.
Taney’s counterrevolution sought to quell the growing anti-slavery sentiment in the North, where the population was expanding and the economy growing, by chaining the nation to his version of the past. Today’s conservative supermajority, which came to be just as the more racially diverse and liberal Millennial generation became the largest living generation in 2019, is built to do the same.
Now the dead hand of the past threatens to wrap its fingers around this generation’s future and drag it backwards through a series of reversals of the 20th century Rights Revolution and what is left of the New Deal state.
It remains to be seen whether this court’s opponents or their leaders can mount the kind of political mobilization that opponents of Taney’s court did to counter the anti-majoritarian powers of their day. Either way, a bitter political battle awaits.
Amanda Marcotte writes at Slate, “Life after Roe: Republicans are already targeting the right to a public education”, https://www.salon.com/2022/05/05/life-after-roe-are-already-targeting-the-right-to-a-public-education/
Despite glib right-wing claims to the contrary, as many legal scholars and constitutional experts were quick to point out, Supreme Court Justice Samuel Alito’s leaked draft opinion ending abortion rights opens the door wide open for the reversal of decades of human rights litigation. At issue is Alito’s rejection of the ninth amendment, which states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Or, in plain English: Plenty of rights are guaranteed by implication in the Constitution — such as a right to privacy — even if not explicitly delineated. Despite his alleged “originalism,” however, Alito was quite clear that he feels the opposite is true: If it ain’t singled out by name in the Constitution, it’s not a right.
“The Constitution makes no reference to abortion,” he writes in the draft opinion that was leaked to Politico. As political scientist Scott Lemieux noted, this is a “junior high school debate society” argument unworthy of anyone with a law degree, much less a Supreme Court seat. But it does open the door to repealing birth control rights, same-sex marriage, and decades worth of social progress that religious zealots like Alito deplore.
Already, excited Republicans are drafting bills that would throw women in prison for “homicide” for abortion and end same-sex marriage rights. (Meanwhile, they are also restoring the “right” of parents to marry an 11-year-old off to an adult man.) But while Republicans are dusting off their obsessive desire to police American bedrooms, they are starting to notice that Alito’s argument has implications for all the human rights they wish to end.
On Wednesday, Texas’s Republican Governor Greg Abbott announced that his administration wishes to “resurrect” a 1981 Supreme Court case that guarantees the right of all children to public education. The case in question is Plyler v. Doe, in which the court looked at a Texas law that withdrew funds from public schools that enrolled undocumented immigrants as students. After determining that undocumented immigrants are, indeed, “persons,” the court struck down the Texas law.
That’s where the GOP is, circa 2022: Arguing that zygotes are “persons,” but living, breathing children of immigrants are not.
Indeed, the entire segment of the Joe Pags show that Abbott appeared on was nauseating in its preference for cruelty over common sense. The host whined that “public property tax dollars” are being spent on “children who are 5, 6, 7, 10 years old, who don’t even have remedial English skills.” Of course, that is what schools are there to teach. Kids that age also don’t know how to read or write or do math. Pags clearly needs remedial education in what schools are for, if “teaching kids stuff” is not on his list of imagined purposes.
This is likely just the beginning of a feeding frenzy of right-wing challenges to 70 years, or possibly more, of decisions securing human rights.
Alito’s draft opinion involves both sneering at “the latter part of the 20th century” and a lengthy, bitter diatribe about how the court is not bound by precedent. It’s an open invitation for conservatives to “resurrect” any case going back to the 1950s, no matter how settled it is in the public view. VDare editor Peter Brimelow, who the New York Times reported once worked directly for Fox News owner Rupert Murdoch, was exuberant about the possibilities.
[Peter Brimelow, a former National Review editor who now runs the racist website VDARE, celebrated the Roe news by posting on the alt social media site Gab: “Next stop Brown vs. Board! (and Sullivan)”]
If that sounds improbable, I invite readers to once again read Abbott’s comments about his intention to end public education for the children of immigrants. The same racism puts the educational rights of Black children on the chopping block. Conservatives already won one pro-segregation case before the GOP-controlled Supreme Court in 2006. With Alito inviting more cases like this, things are likely to get quite hairy.
As Kathryn Joyce has extensively reported for Salon, the long term goal of the radical right — of which Abbott has strenuously tried to demonstrate he is a member — has been the total destruction of public education. It makes sense, of course, that the same people who think that government should play no role in providing health care also object to the government providing education. Those cards have been traditionally held close to the chest, concealed by stalking horses such as “charter schools.” But lately, more conservatives have been forthright about their ideological opposition to the concept of public education.
Just last week, Fox News host Lisa Kennedy argued that another Supreme Court case challenging the secularism of public schools offers an opportunity to “rethink whether or not we have public schools.” She added, “Maybe we should not have the government involved in education at all.” And, as Joyce reported last week:
“Resurrecting” long-forgotten cases like Plyler plays into this scheme. The far-right Supreme Court has already elevated the claim that rights not explicitly named in the Constitution aren’t real. Now they may have an opportunity to declare that children do not have a right to education and states do not have an obligation to provide it. The whole thing would be sold to Republican voters through racial grievance, as a way to deny children of color educational access, of course. But the Supreme Court deciding that the right to education doesn’t exist would naturally make it much, much easier to end public education altogether.
Despite all the whining and crying from Republicans about the “leak,” what’s evident is that the right is stoked about Alito’s draft opinion. It folds in decades of specious right wing arguments that posit that the government has absolutely no obligations to its citizens: No duty to protect human rights, no need to provide services like education or health care. This ideology has long been called “libertarianism,” but in truth it’s just uniquely American flavor of fascism. There’s no planet where “liberty” is expanded by forcing women to give birth or keeping children illiterate. Republicans can see their dystopian agenda for the United States coming into view, and they couldn’t be more excited.