NO UNDOCUMENTED CHILD LEFT BEHIND: PLYLER V. DOE AND THE EDUCATION OF UNDOCUMENTED SCHOOLCHILDREN, by Michael A. Olivas. New York: New York University Press, 2012. 208pp. Cloth $35.00. ISBN 9780814762448.
Reviewed by Christopher Malone, Department of Political Science, Pace University. Email: cmalone [at] pace.edu.
In 1903, W.E.B. Dubois boldly proclaimed that the “problem of the twentieth century is the problem of the color-line”(p.vii). Writing at the dawn of the century and in the dark days of Jim Crow when the ominous curtain of segregation had descended across the South, Dubois was of course addressing the “Negro problem” in America, and what it meant for an African American to live behind the sordid veil of discrimination. Lifetime, hereditary African slavery was certainly the Original Sin of the United States, and Dubois rightly predicted in The Souls of Black Folk that its legacy would continue to bedevil American democracy. What Dubois perhaps could not foresee as the twentieth century drew to a close and a new one commenced is the extent to which racial conflict in America has become more complicated – the problem of “color-lines” if you will.
In the second decade of the century, it is now clear that any “black problem” this country has is accompanied by what those who support more restrictionist immigration policies would call the “brown problem.” The 2010 census confirmed that Latinos are now the largest minority in the country. This news was certainly not met with universal delight. For years, arch conservatives have bellowed that white Americans are quickly becoming an endangered species due to immigration – both legal and undocumented. Three time presidential candidate Patrick Buchanan, for example, announced in his 2004 book that the “invasion” from the South was turning this country into “Mexamerica.” A week after the attacks of 9/11, Buchanan declared in an op-ed that terrorists were among the 11 million undocumented individuals, most of who come from Central and South America. “The enemy is already inside the gates.” The new fear of terrorism was thrown onto the old fire of illegal immigration. In the years before and since, policy makers across the country at both the state and national levels have sought to restrict access and deny legitimacy to the undocumented in a variety of ways – be it California’s Proposition 187 in 1994, the unsuccessful Gallegly Amendment to the Illegal Immigration and Immigrant Responsibility Act of 1996, or Arizona’s SB1070, Alabama’s HB 56 and Georgia’s HB 87 more recently. In the words of presidential candidate Mitt Romney, the hope is that these restrictive policies would lead the undocumented to “self-deport” – a perfect if utterly naïve solution to the problem as those on the [*218] right define it, since self deportation would probably ensure a white majority for decades to come and cost the government absolutely nothing in terms of detainment and deportation expenditures.
This is not to say that the problem of undocumented immigration should be swept aside as merely the ranting of the irrational. It has been more than 25 years since the last successful attempt at immigration reform, and for years those on both sides of the debate have realized that something must be done at the national level. The problem has been finding a reasonable compromise. Upon his reelection in 2004, President George W. Bush could not even bring his own party along with plans for immigration reform that included a path to citizenship with stiff penalties for the undocumented. Southern and Sun Belt Republicans particularly balked. Policy wise, the federal government missed an opportunity to deal effectively with the problem. Politically, it was a disaster for a Republican Party which had courted Latinos for years around social issues such as same sex marriage and abortion. Bush got 44% of the Latino vote in 2004; four years later John McCain would receive only 32%. Since then, the Republican Party has moved even further to the right on the issue, with some in the party like erstwhile presidential candidate Michelle Bachmann calling for not one fence at the border, but two. Not to be outdone, Herman Cain wanted to electrify them.
The current problem of immigration reform points to a much deeper set of issues – all of which undergirded Dubois’ masterful Souls. Is this country big enough for the diversity that it claims to idealize? Is the polity large enough for the racial and cultural distinctions that come with that diversity? Will the color-lines continue to be the biggest source of division, or the nation’s greatest strength? Will they tear us asunder, or make us whole?
Those questions in much of their complexity lie at the heart of two recently published books: Philippa Strum’s Mendez v. Westminster: School Desegregation and Mexican American Rights, and Michael Olivas’ No Undocumented Child Left Behind: Plyler v. Doe and the Education of Undocumented Children. Mendez was decided on the heels of World War II, amidst a thawing in race relations and the NAACP’s ongoing strategy to dismantle segregated schools, at a time when the courts were increasingly open to their challenges. Plylerwas decided in 1982, just after the country had elected the most conservative president since the Great Depression and right when the courts would begin in earnest their rightward journey with a blitz of the conservative judicial appointments. In this sense, the two cases could be read as bookends in the modern liberal era of the judiciary. Taken together, these two books cast an important light on the persistent problem of the color-line that an expanding Latino population has posed and will continue to pose for the United States. In their own way, Strum and Olivas deal with issues of race and inclusion, immigration and citizenship, the worth of an education as the bedrock of American Democracy, federalism – and the ability of the courts to help navigate the country through those rocky, collective shoals.
Much like she did in her award winning When the Nazis Came to Skokie in 1999, [*219] Strum tells the story of Mendez v. Westminster with an uncanny succinctness, ease and grace that at once humanizes the law and makes it accessible to those without an advanced degree in it. As she indicates in the Introduction, the narrative focuses on three men and one woman: the mother and father of the Mendez children at the center of the court case, David Marcus their attorney, and the federal district judge who decided the case, Paul McCormick (p.2). School districts in Orange County, California had created “Mexican schools” to which more than 5,000 Mexican and Mexican American students were steered. California law segregated children in schools on the basis of race, with black and Asian children segregated from Anglo children. Yet, while Mexican and Mexican American children were considered “white” under state law, they were nonetheless separated and sent to clearly inferior schools. In 1945, Gonzalo and Felicitas Mendez, both US citizens, sought to enroll their three kids in the Main Street Elementary School in the Westminster School District, and were denied. They filed a class action law suit on behalf of the 5,000 or so similarly situated Mexican and Mexican American students.
On February 18, 1946, Judge Paul McCormick handed down his decision. While McCormick could have ruled rather narrowly by finding the practice of erecting Mexican schools in violation of California state law (since Mexican and Mexican Americans were entitled to all the privileges of being “white” under state law), he went further and, in an extraordinary move, found that the policy of creating separate schools for Mexican American students violated the Equal Protection Clause of the Fourteenth Amendment. Strum explains:
Then came McCormick’s formulation, which was so radical for its day: “A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage.” That, simply stated, was a declaration that “separate but equal” was not equal. The language must have made the parties to the litigation catch their breaths in boldness. McCormick was implicitly denying the legitimacy of an entire body of equal protection law as it applied to education, and he was doing so in the language that would soon have civil rights organizations all over the country rushing into the case (p.125).
So much so, in fact, that Marcus’ preparation for the case and McCormick’s decision would become the basis of the strategy for the NAACP in Brown v. Board of Education, as Strum later explains in the book.
The school board appealed the case to the Ninth Circuit in San Francisco, where a seven-judge panel heard the case. On April 14th, 1947, a unanimous court ruled in favor of Mendez. However, in writing for the court, Judge Stephens chose not to rely on the far-reaching equal protection conclusions of Judge McCormick. Rather, Judge Stephens found that the segregated schools only violated state law:
The Ninth Circuit was willing only to say that Mexican American children could not be segregated [*220] because the legislature had not decided that sending them to separate schools was state policy. The district would have to desegregate or carry their appeal to the U.S. Supreme Court – or they could turn to the California state legislature, which could add Mexican Americans to the segregation law (p.145).
The school district chose not to appeal. For some time it had made promises to integrate the schools, to no avail. However, earlier that year a bill ending segregation in the state public school system was introduced in the California Legislature. Governor Earl Warren signed it into law in September 1947. And seven years later, then-Chief Justice Earl Warren would author the unanimous Brown decision which in many ways closely followed Judge McCormick’s reasoning that school segregation violated the Equal Protection Clause of the Fourteenth Amendment (pp.151-152).
Strum concludes that the Mendez decision emboldened the Mexican American community at the same time McCormick’s opinion provided a basis for the Supreme Court’s later equal protection guarantees through Brown and its progeny. It goes without saying that McCormick’s opinion was a bold step forward. While the segregated Mexican American students were in fact American citizens, McCormick’s assertion “social” equality formed the basis of the education system directly challenged the logic undergirding Plessy and a half century of equal protection jurisprudence. In Plessy the Court found a fundamental difference between social and political equality under the Fourteenth Amendment – the basis of the “separate but equal” formula – and that therefore Homer Plessy had no legal right to the reputation of a white man an integrated train car would afford. Yet, the Ninth Circuit stopped short of the more expansive Equal Protection basis and ruled instead that this “intraracial” sorting violated California State law.
Strum’s analysis reminds us that at times the road not taken to a decision is as telling as the one chosen. The question of course is why the courts reason as they do to get to the ruling they declare. Precedent is one powerful indicator, and in this case the Ninth Circuit was perhaps unwilling to go where the Supreme Court had not gone yet. On the other hand, despite being insulated from the pressures of democratic politics, courts nonetheless often reflect those pressures. In other words, at crucial moments with landmark cases on the line the courts are careful not to get out too far in front of public opinion or the democratically elected branches of government unless a fundamental right is at stake.
The “road not taken” is a theme which also runs through Michael Olivas’ No Undocumented Child Left Behind: Plyler v. Doe and the Education of Undocumented Children. June 2012 will mark the 30th anniversary of the landmark Plyler decision, in which the Supreme Court struck down a Texas statute denying funding in public schools for undocumented children, at the same time it threw out a school district’s attempt to charge the families of undocumented children tuition to attend public schools. Olivas’ short but concise tract is both a look back at the basis for the Plyler decision and a brief but compact analysis of how it has affected both law and policy since. [*221]
On the one hand, Olivas celebrates Plyler as the “salutary event it surely is” (p.103). The author begins by analyzing Justice Brennan’s 5-4 decision and the rationale for grounding it in the Equal Protection Clause. “[Brennan] employed an equal protection analysis to find that a State could not enact a discriminatory classification ‘merely by defining a group as non-resident’” (p.20). Olivas applauds Brennan for juggling competing constitutional methodologies and navigating through competing principles: first, Brennan is successful in applying a heightened level of scrutiny to the Texas statute without declaring undocumented children a suspect class, which would have certainly triggered the strict scrutiny standard; second, while he stops short of declaring education to be a fundamental right, he nonetheless asserts that education occupies “a fundamental role in maintaining the fabric of our society” (p.21). Olivas intimates that Brennan’s legal maneuvering probably secured the fifth vote on the opinion – that fifth vote being Justice Powell who Brennan both sought counsel from and courted assiduously through drafts of the opinion.
On the other hand, Olivas’ entire analysis of Plyler and its legacy might be read as a rather long, thoughtful concurring opinion on the road not taken in the decision and the concomitant consequences over the last 30 years. At many points, Olivas asserts that the Preemption Clause would have been much stronger grounds for deciding Plyler than the equal protection guarantee Brennan crafted. More importantly, a federal preemption basis might have brought more order to state and local law in the years since as the federal government has continued to drag its feet on immigration reform. Case in point: in the first six months of 2009 alone, more than fourteen hundred bills dealing with immigration in one form or another had been introduced in all fifty states. Olivas explains his approach:
It is my thesis that state, county, and local ordinances aimed at regulating general immigration functions are unconstitutional as a function of exclusive federal preemptory powers. If purely state, county or local interests are governed and if federal preemptory powers are not triggered, such ordinances may be properly enacted, provided they are not subterfuges for replacing or substituting federal authority; purely state benefits, as one example, can be extended or withheld to undocumented college students, as tuition benefits and state residency determinations are properly designated as state classifications, which reference but do not determine immigration status (pp.36-37).
Olivas dedicates an entire chapter to one of these policy initiatives – the various versions of DREAM Act, which seek to expand on the logic of Plyler to provide things like scholarship opportunities and in-state tuition benefits at the state level, and a path to citizenship at the federal level for undocumented and legal immigrants if they finish college. He concludes that, because the Court did not speak forcefully enough on the question of federal preemption in Plyler and similarly situated cases, we shall continue to see states and localities put forward a cacophony of immigration-related laws which serve as proxy for federal action. But bold Court decisions are only part of the solution. As Olivas (2012) has [*222] contended elsewhere, “Only federal comprehensive immigration reform can work – we cannot have 50 state immigration policies, any more than we can have 50 foreign policies or forms of currency.”
Around the time the thirtieth anniversary of Plyler is observed, the Supreme Court will hand down a ruling in Arizona v. United States, the case challenging the constitutionality of the Arizona law known as SB 1070. All of this will come amidst a presidential campaign where divergent views on immigration by the two major presidential candidates will play an important role in the result. Latinos could well determine the outcome in swing states like Nevada, Colorado, Virginia, and even Arizona – and by extension the presidency itself. While the Court may decide to uphold parts of the Arizona law while striking down others, one thing is certain: its decision will not settle much. Comprehensive immigration reform by the federal government needs to be enacted, otherwise the United States will move ever closer to the 50 state immigration policies Olivas laments.
And yet, it remains to be seen whether something as significant as a presidential election or federal immigration reform will address the larger question that these two very good books point toward: What shall become of America’s twenty first century color-line? Does it lead to a multicultural renaissance, or to a narrow, spiteful and coarse nativism?
Buchanan, Patrick. 2004. Where the Right Went Wrong: How Neoconservatives Subverted the Reagan Revolution and Hijacked the Bush Presidency. New York: Thomas Dunne Books.
Buchanan, Patrick. 2001. “U.S. Pays the High Price of Empire,” Los Angeles Times (Sep 18). http://articles.latimes.com/2001/sep/18/local/me-47017.Dubois, W.E.B. 1996. The Souls of Black Folk. New York: Penguin Classics.
Olivas, Michael. 2012. “Battles Endure over Undocumented Schoolchildren,” http://www.washingtonpost.com/blogs/political-bookworm/post/battles-endure-over-undocumented-schoolchildren/2012/03/14/gIQAWVazBS_blog.html (Mar. 14).CASES CITED
Brown v. Board Of Education of Topeka, Kansas347 U.S. 483 (1954).
Mendez v. Westminster 64 F.Supp. 544 (C.D. Cal. 1946), 161 F.2d 774 (9th Cir. 1947).
Plessey v. Ferguson 163 U.S. 537 (1896).
Plyler v. Doe 457 U.S. 202 (1982).
Copyright by the Author, Christopher P. Malone.