Plyler v. Doe (1982)⁷⁷

WHAT IS THE PLYLER V. DOE RIGHT OF ACCESS? The Plyler Right of Access provides all undocumented students, residing in any part of this country with the same right of access to a public education for kindergarten through grade 12 that is provided under state and Federal law to all U.S. citizens and permanent resident students. More specifically, under the Fourteenth Amendment's Equal Protection Clause, states and public schools are barred from denying undocumented immigrant students their right of access to public schools on the basis of their legal status. In essence, the Supreme Court has held their right of access to be a semi-fundamental right which can only be violated if the state can show that the disparate treatment promotes a substantial state interest.

ANALYSIS

In 1982, the Supreme Court ruled in Plyler v. Doe that states and public schools are prohibited under the Equal Protection Clause of the Fourteenth Amendment from taking actions which treat undocumented students disparately, solely on the basis of their immigration status if the treatment does not promote a substantial state interest.⁷⁸

More precisely, the Court held: (1) undocumented immigrants, or aliens, are covered by the Equal Protection Clause of the Fourteenth Amendment; (2) state statutes which withhold from local school districts any state funds for the education of children whoare not "legally admitted" into the United States, and which authorize local school districts to deny free enrollment in their schools to children who are not "legally admitted" to the U.S. are in violation of the Equal Protection Clause of the Fourteenth Amendment.

The Court, in upholding their right of access, applied an intermediate level of review. It elevated undocumented students to a semi-suspect class and found the right to schooling in this context to be a semi-fundamental right, making the right of access for undocumented students a semi-fundamental right.

Any practice or requirement by public schools, their staffs or other parties which may possibly expose the undocumented status of the student or create a reasonable fear of being exposed to the Immigration and Naturalization Service (INS), has the effect of "chilling" their right of access to schools and as such is quite likely in violation of Plyler. The schools' duty must include: the duty to refrain from such discriminatory activities; the duty to affirmatively "quash" rumors or misinformation; and the affirmative duty to actively inform school personnel, communities, and parents of these rights and the ensuing protection these create for undocumented communities.

If the State is to deny a discrete group of innocent [undocumented] children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest.⁷⁹

[T]he Court [in Plyler],.. .ruled that undocumented immigrant students and all other immigrant students had a quasi-fundamental right to access public schools. The Court recognized that "[d]enying education to undocumented children imposes a lifetime hardship on a discrete class of children."⁸⁰ Further, it noted that "[i]n these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education."⁸¹ Withholding education has been likened to "penalizing these children for their presence within the United States,"⁸² a circumstance over which they generally have no control.⁸³

All immigrant students residing in the United States are covered directly or indirectly by the Plyler Right of Access. Any active attempts to distinguish between documented and un-documented students by itself may well constitute a violation of some student's Plyler rights, resulting in an unconstitutional practice.

(1) Undocumented Students

All foreign born students residing in the United States without legal immigration status, who would otherwise be eligible to attend their local public schools, are explicitly covered by Plyler and thus guaranteed a Plyler Right of Access. This group includes all age appropriate students residing in the U.S. who:

- entered the U.S. without being inspected by INS and who remain here without valid immigration papers; or
- were inspected at the border, entered with a valid visa, and who have since fallen out of status.

(2) Documented Students

All foreign-born students residing in the United States with legal immigration status, who would otherwise be eligible to attend their local public schools, appear to be similarly covered by the Plyler Right of Access. They are also covered by the Fourteenth Amendment, and, all too often, similarly situated. Additionally, as they have been deemed "persons" covered by the Fourteenth Amendment, they are entitled to the same level of access and protection received by other citizen or permanent resident students in U.S. public schools.

(3) Documented and Undocumented Students

For the Plyler Right of Access to be fully and properly enforced as to undocumented immigrant students, it must be enforced and adhered to for all immigrants. Educators should remember that only the Immigration and Naturalization Service has been given the responsibility of enforcing U.S. immigration lawsÄnot the public schools or its personnel.

ANALYSIS

Given that it is generally impossible to distinguish between (1) documented and undocumented immigrant students; and (2) immigrant and native born students, without probing into their immigration status or nationality, it is evident that for schools to refrain from violating or `chilling' the Plyler rights of undocumented immigrant students, they have to view and treat all immigrant students in the same manner.

DO IMMIGRANT STUDENTS HAVE A DUTY TO ATTEND SCHOOL?

Immigrant students, as all other students, are obligated under state laws to attend school until they reach a state mandated age. Again, the right to attend school continues even when the state obligation ends.

State mandatory attendance laws generally make acts perpetrated by persons other than the students which prevent students from attending school illegal and punishable by civil or even criminal penalties. Although these statutes are generally aimed at parents and other family members who keep their children out of school, they may also be applicable to school personnel who, through their own volition, keep immigrant students from attending school.

ARE UNDOCUMENTED STUDENTS BOUND BY CONSTITUTIONAL RESIDENCY REQUIREMENTS?

Immigrant students entitled to a right of access to public schools are bound by the same residency requirementsÄassuming they are constitutionalÄimposed on all citizen and permanent resident students in the state in which they reside. State residency requirements are constitutional if they are properly defined, uniformly applied, and developed to further a substantial state interest. As such, residency laws should not be applied in a manner which discriminates against immigrant students.

ANALYSIS

Immigrant students, as all other students, are bound by constitutional residency requirements of the state in which they reside. Of course, a school district may require that illegal alien children, like any other children, actually reside in the school district before admitting them to the schools. A requirement of the de facto residency, uniformly applied, would not violate any principle of equal protection.⁸⁴

Under constitutional state residency requirements, all school-age students, including immigrant students, must be deemed as residents if they or their parent or legal guardian live in the district with a bona fide intention of remaining there. The "intention to remain" does not imply an intention never to leave. Given the mobility of people and families in this country, changing a place of residence is commonplace.

The Supreme Court, in Martinez v. Bynum (1983), 85 defined constitutional residency requirements as follows:

A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents. Such a requirement with respect to attendance in public free schools does not violate the Equal Protection Clause of the Fourteenth Amendment. It does not burden or penalize the constitutional right of interstate travel, for any person is free to move to a State and to establish residence there. A bona fide residence requirement simply requires that the person does establish residence before demanding the services that are restricted to residents.⁸⁶

The Court in Plyler v. Doe⁸⁷ further noted that such policies must be uniformly applied in order to be bona fide. States are prohibited from accomplishing what would otherwise be prohibited under the Equal Protection Clause or the Supremacy Clause by defining a disfavored group as nonresident.

Under Plyler, the distinction between undocumented persons, on the one hand, and documented persons and United States citizens, on the other, do not constitute a bona fide residency requirement.

ANALYSIS

A state may not; however, accomplish what would otherwise be prohibited by the Equal Protection Clause, merely by defining a disfavored group as nonresident.⁸⁸

Immigrant students residing in the U.S. on nonimmigrant visas cannot be denied "resident status" by public schools solely on the basis of their nonimmigrant status. Such residency requirements have been held to be inherently suspect requiring a compelling state interest. They have also been ruled non-bona fide residency requirements.

ANALYSIS

Although the Supreme Court has never ruled on this issue, a lower Court in Pena v. Board o of Education of City ofAtlanta (1985) ,⁸⁹ ruled that the Fourteenth Amendment Equal Protection Clause was violated when the plaintiff, a local school district, required that tuition be paid for public school admission of the children of certain nonimmigrant parents, including F-1 students, but not for all nonimmigrant parents, such as diplomats or journalists, or for U.S. citizens whose residency in the school district is also for a temporary purpose such as attending a university. The school district did not prove a compelling state interest, nor was the residency requirement a bona fide residency requirement.

Keyes v. School District No.1 (1983)⁹⁰

The U.S. District Court for the District of Colorado ruled on the adequacy of the Denver Public School District's program for limited English proficient Hispanic students. The 1983 decision had been preceded by a series of judicial decisions and orders respecting Denver's failure to achieve unitary status following years of dejure segregation of Black and Hispanic students. The Court avoided the constitutional and Title VI challenges to Denver's program raised by plaintiffs counsel and focused instead on the question of whether Denver had satisfied the affirmative requirements of the EEOA respecting language-minority students.

The District Court reviewed in detail:

(1)...district statistics on LEP students
(2)...the school district's curriculum
(3)...LEP student testing
(4)...staffing of Denver programs for LEP students
(5)...the administration, growth, and funding of Denver's programs for LEP students

Based on this factual information, and utilizing the three-part analysis set down in Castaneda, the Court addressed the following compliance questions:

HAS DENVER DESIGNED A PROGRAM BASED ON A SOUND EDUCATIONAL THEORY?

Noting that "Denver has elected what is called a "transitional bilingual approach," the Court found that:

The parties are in agreement and the testifying experts have all said that this is a recognized and satisfactory approach to the problem of educating LEP children. Mr. Martinez testified that this is a two-pronged approach. One is to provide the student with an opportunity to develop English language skills and the other is to provide content area to him in a language he understands while he is learning English. The experts agree that this approach not only should enable LEP students to enter the mainstream of instruction, it also helps to overcome the emotional barriers of fear, frustration, discouragement, and anger by providing understandable content instruction in their native language during the transitional phase.

HAS DENVER PURSUED ITS PROGRAM WITH ADEQUATE RESOURCES, PERSONNEL, AND PRACTICES?

Here the Court focused on deficiencies in Denver's elementary bilingual program, "the best which Denver has to offer LEP children." First, the Court looked at the qualifications of program staff:

The key to an effective elementary bilingual classroom is the ability of the teacher to communicate with the children. Thus, if it is expected that understandable instruction will take place, there must be assurance that the teachers have the necessary bilingual skills. This is not the fact in Denver.

Teachers are designated as bilingual in Spanish and English based on an oral interview. There are no standardized testing procedures to determine the competence of the bilingual teacher in speaking and writing both languages. Accordingly, it is inappropriate to assume that effective communication is taking place even with the fortunate few Lau A Spanish speaking students who are assigned to bilingual classrooms with bilingual teachers in the twelve elementary schools having that problem.

[Editor's Note: Denver follows the Lau Remedies classification of language-minority students - Lau students - that distinguishes five categories of English proficiency from Lau A or monolingual non-English speaker through various stages of bilingualism to Lau F or monolingual English speaker.]

Given the district's declaration of a transitional bilingual policy and obvious need of the services of competent bilingual teachers, it would be reasonable to expect that the placement of teachers with those skills would be matched with the programs in the designated schools. That is not the case in Denver.

The assignment of teachers to bilingual schools in the defendant district is accomplished by the same procedure used for the assignment of teachers to all other schools. Teachers with tenure have preferential rights for assignment to vacancies according to their seniority. Accordingly, a monolingual English teacher may fill a vacancy in a bilingual classroom, at a bilingual school, even though a qualified bilingual teacher with less seniority is available for placement there. Likewise, tenured monolingual teachers cannot be removed from a bilingual classroom to create a vacancy for a competent bilingual teacher. The justification for this contradiction of common sense is that the movement and placement of teachers is restricted by personnel regulations and contractual commitments.⁹¹

Moreover, the Court found that the personnel responsible for conducting the ESL component of the Denver program were inadequately trained and qualified.

The ESL component of the program is being delivered by ESL designated instructors who have not been subject to any standardized testing for their language skills and they receive very little training in ESL theory and methodology. The record shows that in the secondary schools there are designated ESL teachers who have no second language capability. There is no basis for assuming that the policy objectives of the program are being met in such schools. The tutorial program relies on paraprofessionals who may have second language skills but who are not required to show any competence or experience with content area knowledge, or teaching techniques, and who receive scant in-service training.⁹²

Beyond the lack of qualifications and training of staff responsible for the instruction of Denver's LEP students, the Court identified other deficiencies in the scope and structure of the district's program:

What appears from the record is that outside of the bilingual classrooms, the Lau A children and perhaps the Lau B children are not receiving content area instruction in a language which they understand and that, at best, some remedial oral English training is being given to them.

The emphasis on the acquisition of oral English skills for LEP students is another cause for concern. The record indicates that on the average, ESL instruction by a teacher or tutor is limited to 40 minutes per day of remedial English instruction using an audiolingual approach. While there is no doubt that acquisition of oral English skill is vital for the students' participation in classroom work, it is equally obvious that reading and writing skills are also necessary if it is expected that "parity in participation" in the total academic experience will be achieved. Another matter of concern is the apparent disregard for any special curriculum needs of Lau C children. The defendant considers Lau C children to be bilingual, presumably with equal proficiency in English and another language. That view disregards the other element of the applicable definition in the Colorado Language Proficiency Act that the English language development and comprehension of such bilingual students is at or below the district mean or below an acceptable proficiency level on a national standardized test or a test developed by the Colorado Department of Education. Lau C students are within the class of persons for whom there is a statutory duty under both the Colorado Act and section 1703(f). Denver is not meeting that obligation.

The Court also cited the district's failure to adopt adequate tests to measure the results of its program, holding that "the lack of adequate measurement of the effects of [the district's program] is a failure to take reasonable action to implement its transitional bilingual policy." ⁹³

Finally, the Court dismissed Denver's citation of Justice Blackmun' s concurring opinion in Lau that the numbers of students involved justify its program, noting that "under section 1706, any individual denied an equal educational opportunity as defined in the Act may institute a civil action for private relief."⁹⁴

HAS DENVER'S TRANSITIONAL BILINGUAL PROGRAM ACHIEVED SATISFACTORY RESULTS?

Given Denver's inadequate implementation of its transitional bilingual program, the Court declined to rule on this third compliance question suggested by the Castanedaapproach. The Court did write, however:

What is subject to comment are two very significant indications of failure in achieving the objective of equal educational opportunity for LEP children. One is the number of Hispanic "dropouts" peaking in the tenth grade. There is an interesting relationship between that surge of dropouts and the sharp decline in the overall number of Lau C category students between grades 7-9 and grades 10-12. A second indicator of failure is the use of "levelled English" handouts for the district's LEP student population in the secondary schools. The evidence includes illustrations of such handouts and it is apparent from examining those exhibits that they are not comparable to the English language textbooks. The use of such materials is an acknowledgement by the school district that the LEP students have failed to attain a reasonable parity of participation with the other students in the educational process at the secondary school level.⁹⁵

The Court in Keyes ruled that under 1706 of the EEOA, the plaintiffs were entitled to "such relief as may be appropriate." In the Denver case, the Court specified that the relief will include:

...changes in the design of the program and in the system for delivery of services. Such changes must remedy the failure to give adequate consideration to Lau classification in the pupil assignment plan; the failure to consider the need to serve Lau C children; the lack of adequate standards and testing of the qualifications for bilingual teachers, ESL teachers, tutors and aides; the lack of adequate tests for classifying Lau A, B, and C students; the failure to provide remedial training in the reading and writing of English; the lack of adequate testing for effects and results of the remedial program provided to the students; and the absence of any standards of testing for educational deficits resulting from their lack of participation in the regular classrooms.⁹⁶

The District Court concluded its opinion in Keyes by making a broad observation on what its order, and, more importantly, the EEOA required:

These changes will increase the capacity of the system. That alone will not be effective. There must be a change in the institutional commitment to the objective and a recognition that to assist disadvantaged children to participate in public education is to help them enter the mainstream of our social, economic, and political systems. The resulting benefits to the community are self-evident and the production of such benefits is the purpose of tax supported education in the United States. "Education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests." (Plyler v. Doe, Citation omitted). The character of the disadvantage, whether it results from racial identities or the language influences of different ethnicity, is relevant only to the methodology to be employed. Throughout this trial and in the post trial brief, the defendant district has consistently claimed that there has been a good faith effort to provide some service to every student in the district who needs assistance in gaining proficiency in English. To the extent that "good faith" is equated with a lack of discriminatory intent or an absence of a complete disregard for students who are disadvantaged by a lack of English language proficiency, the record supports the contention. That, however, is not an adequate defense to claims under 42 U.S.C. 1706. What is required is an effort which will be reasonably effective in producing the intended result of removing language barriers to participation in the instructional programs offered by the district.⁹⁷

Gomez v. Illinois State Board of Education (1987)⁹⁸

The Seventh Circuit Court of Appeals issued an opinion regarding the responsibilities of State Education Agencies (SEAs) under the EEOA. The question before the Court of Appeals was the propriety of the trial Court's dismissal of a class action complaint made on behalf of Spanish speaking, limited English proficient students against the State of Illinois. The complaint cited the State's failure to test students for limited English proficiency and to provide bilingual, or compensatory instruction, as violative of civil rights laws including the EEOA.

As a threshold matter, the Court of Appeals rejected the State's contention that immunity from suit provisions of the Eleventh Amendment barred suits against States for violations of the EEOA. The Appeals Court then proceeded to apply Castaneda`sanalytic framework to the facts available at trial. The Court found that the Illinois program, based on a transitional bilingual approach, satisfied the first, "sound educational theory" test.

The second, "resources" test suggested by Castaneda brought into focus the "central issue" of Gomez:

What obligation does 1703(f) impose on state (as opposed to local) educational agencies for the implementation of programs designed to provide LEP children with an equal educational opportunity?⁹⁹

The Court answered that question in the following way:

We concur with the conclusion of the Ninth Circuit in Idaho Migrant Council v. Board of Education, 647 F.2d 69 (9th Cir. 1981), that 1703(f) requires that state, as well as local, educational agencies ensure that the needs of LEP children are met. The plaintiffs in essence alleged that the defendants have only gone through the motions of solving the problem of language barriers. Although the meaning of "appropriate action" may not be immediately apparent without reference to the facts of the individual case, it must mean something more than "no action." State agencies cannot, in the guise of deferring to local conditions, completely delegate in practice their obligations under the EEOA; otherwise, the term "educational agency" no longer includes those at the state level. Exactly, what state educational agencies must do beyond establishing the minimums for implementation of language remediation programs is not at issue in the instant appeal, because the plaintiffs have done no more than allege that the defendants failed even to establish the minimum need for identifying and placing LEP children...Whether the plaintiffs can prove their case is a matter that must be determined on remand, not on appeal. We can only decide at this early stage of the litigation that the plaintiffs have stated a claim and, therefore, that the dismissal of the complaint was improper.¹⁰⁰

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