Frederick County Maryland, my home county, is seeking
to leap into the national spotlight with a bill that would deny any county funds to assist the children of illegal immigrants to attend public schools.
Frederick County Commissioner Charles A. Jenkins said Tuesday that he wants the county to lead the way in a legal challenge to a 1982 Supreme Court decision that forces schools to enroll illegal immigrants.
In order for parents to enroll their children in Frederick County Public Schools, they must prove residency in the county, their child’s date of birth, and vaccinations.
Jenkins (R) is proposing legislation that would require all agencies that receive county money — which includes schools — to verify that the people they help are in America legally, before the funding is provided.
Frederick County Public Schools receives more money than all other county departments combined — $222 million in fiscal 2008 alone.
Jenkins believes the federal government has failed to protect the U.S. border, and he wants to submit a bill to the Maryland General Assembly that would set up a challenge to the Supreme Court’s 1982 decision.
The case in question,
Plyler v. Doe, 457 U.S. 202 (1982) held
A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.
The bill being proposed by Jenkins would directly challenge that ruling.
However, there are some procedural issues involved. Frederick County, for the most part, cannot implement its own legislative proposals. The County Commission must submit to the Frederick County General Assembly delegation a list of proposed bills, which then must be approved by the full General Assembly in the normal legislative process. The rub is that the General Assembly has a veto proof majority of Democrats and has not demonstrated any inclination to stem the flow of illegal immigration into Maryland. Indeed, Maryland is practically an undeclared sanctuary state. Of course the Democrats don't need a veto proof majority since Governor Martin O'Malley (D) is not likely to sign any legislation denying illegal immigrants any "benefits."
While I support Jenkin's creativity in attempting to redress a growing problem in Frederick, namely an influx of illegal immigrants moving to the county due to lower rents and otherwise cheaper housing, Jenkins is facing a pretty tough road. But there is hope.
The dissent to Plyler v. Doe, written by Chief Justice Warren Burger and joined by the Court's then "conservative wing" of Justices Byron White, William Rehnquist and Sandra Day O'Connor, accuses the majority, comprised of Justices William Brennan (who authored the opinion) Thurgood Marshall, Harry Blakmun, Lewis Powll and John Paul Stevens, of an "unabashedly result-oriented approach" in coming to the decsion in Plyler. Burger writes in dissent:
Were it our business to set the Nation's social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children - including illegal aliens - of an elementary education. I fully agree that it would be folly - and wrong - to tolerate creation of a segment of society made up of illiterate persons, many having a limited or no command of our language. 1 However, the Constitution does not constitute us as "Platonic Guardians" nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, "wisdom," or "common sense." See TVA v. Hill, 437 U.S. 153, 194 -195 (1978). We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policymaking role as the Court does today.
The Court makes no attempt to disguise that it is acting to make up for Congress' lack of "effective leadership" in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. 2 [457 U.S. 202, 243] See ante, at 237-238 (POWELL, J., concurring). The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide "effective leadership" simply because the political branches of government fail to do so.
The Court's holding today manifests the justly criticized judicial tendency to attempt speedy and wholesale formulation of "remedies" for the failures - or simply the laggard pace - of the political processes of our system of government. The Court employs, and in my view abuses, the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver. That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others.
In a sense, the Court's opinion rests on such a unique confluence of theories and rationales that it will likely stand for little beyond the results in these particular cases. Yet the extent to which the Court departs from principled constitutional adjudication is nonetheless disturbing.
I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically "within the jurisdiction" of a state. However, as the Court concedes, this "only begins the inquiry." Ante, at 215. The Equal Protection Clause does not mandate identical treatment of different categories of persons. Jefferson v. Hackney, 406 U.S. 535, 549 (1972); Reed v. Reed, 404 U.S. 71, 75 (1971); Tigner v. Texas, 310 U.S. 141, 147 -148 (1940).
The dispositive issue in these cases, simply put, is whether, for purposes of allocating its finite resources, a state has a legitimate reason to differentiate between persons [457 U.S. 202, 244] who are lawfully within the state and those who are unlawfully there. The distinction the State of Texas has drawn - based not only upon its own legitimate interests but on classifications established by the Federal Government in its immigration laws and policies - is not unconstitutional.
The Court acknowledges that, except in those cases when state classifications disadvantage a "suspect class" or impinge upon a "fundamental right," the Equal Protection Clause permits a state "substantial latitude" in distinguishing between different groups of persons. Ante, at 216-217. Moreover, the Court expressly - and correctly - rejects any suggestion that illegal aliens are a suspect class, ante, at 219, n. 19, or that education is a fundamental right, ante, at 221, 223. Yet by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the Court spins out a theory custom-tailored to the facts of these cases.
In the end, we are told little more than that the level of scrutiny employed to strike down the Texas law applies only when illegal alien children are deprived of a public education, see ante, at 223-224.
In looking at this theory, that the state is not required to spend the same amount of resources on illegal immigrants as well as the notion that education is not a fundamental right and illegal aliens are not a suspect class, Commissioner Jenkins may have a plausible case and may actually be able to find some sympathetic ears in the General Assembly.
Maryland is facing, in a rosy outlook, a $1.5 billion deficit next year, largely due to a strucutural deficit created by mandatory education spending. In a less rosy outlook, due to falling real estate values and restricted development, a $2 billion plus deficit may be more realisitic. In either case, the General Assembly's purse is more than a little light and the state might be willing to restrict funding for students in the country illegally. Perhaps not completely cut off funding but perhaps fudning at a lower level. If Commissioner Jenkins can make the case for no fudning but offer an alternative of lesser funding, or lesser services, then he may have a better case.
Of course, the difficulty is that funding for students is not based on the student, but upon the school population. Thus, if a school has 550 students, it receives funding for 550 students, there is no mechanism currently in place to distinguish between students who are citizens, legal alients and illegal aliens. The complexity of the now needed mechanism creates an administrative burden upon the schools, themselves, but one that can be overcome.
As localities struggle with the cost of the illegal immigration problem, there will be challenges to the various laws and court rulings that have permitted benefits to accrue to illegal aliens. In a time when budgets are going to be pinched over the next few years, due in large part to the real estate market adjustments, I would imagine that the Supreme Court is going to be looking at this issue again in a few years.
