Some time next spring, the Supreme Court is expected to rule on two cases challenging Texas' right to deny free public education to the children of illegal aliens.
The ruling won't make sense.
That is neither a criticism of the court nor a prediction of what its decision will be. It is merely my confession that I cannot see any reasonable outcome from this legal, moral and constitutional dilemma.
In 1975 the Texas legislature passed a law allowing school districts to charge tuition to children not "legally admitted" to the United States or, alternatively, to bar them from the public schools. The U.S. District Court held the law unconstitutional and was upheld by the Fifth Circuit Court of Appeals. The Supreme Court, which agreed last May to review the case, heard oral arguments on Dec. 1.
If the state law is overturned, state and local jurisdictions will be saddled with the burden of providing services for residents who, by law, shouldn't be residents in the first place. The decision would, in effect, reward illegality.
If the law is upheld, it will be possible for states to deny education to children who are in particularly desperate need of it. It would, in effect, punish children for decisions made by their parents.
Neither way makes sense.
The arguments in favor of the Texas statute have a certain appeal--even in a state notorious for its mistreatment of American citizens of Hispanic origin. It is a bit like saying that the man who breaks into your home has no constitutional right to an equal share of your food. Isn't it fair to demand that children illegally in a jurisdiction be required to pay tuition --at least to the extent that their parents can afford to pay?
Nor is the question limited to public education. If the children of illegal aliens are entitled to free public education, why would they not also be entitled to aid to dependent children, subsidized college education and other benefits of citizenship?
But the equal-protection clause of the Constitution covers not just citizens of a state but "any person within its jurisdiction." Moreover, it can hardly be in the interest of any state to force large numbers of children, who will be there in any case, to grow up unschooled and ignorant. Morally and pragmatically, at least, it makes sense to help these children to become educated, productive adults.
It may even make sense legally. After all, Texas (and Prince George's County, Md., which has a similar rule) allows illegal aliens to own property. It also forces them to pay income taxes, a part of which go to support the public schools. Other states with large illegal alien populations--California, Florida and New York among others--provide free public education for their children as a matter of course.
Perhaps the weakest argument for the Texas law is that extending such benefits of free public education to the children of "undocumented workers" encourages further illegal immigration. The principal lure for these destitute immigrants, illegal or otherwise, is economic: the chance at a decent job. It's hard to imagine anybody being deterred from sneaking into the country by a law denying their children free access to public schooling.
Still, there is a general principle in law that no one should benefit from his own illegal action. The Supreme Court already has ruled that Congress can deny illegal aliens such benefits as food stamps, welfare and medical care.
Further complicating matters is the fact that, while the Carter administration's Justice Department favored overturning the Texas law, the Reagan administration has taken a position of neutrality on the question.
The real issue, though, goes much deeper than public education. The problem the Texas legislature sought to circumvent exists because the federal government has no coherent immigration policy, no clear rule for dealing with illegals, and no serious commitment to enforcing existing immigration law, particularly with regard to the Mexican border.
That being the case, the federal government itself ought to reimburse the states for the cost of providing services for the illegal immigrants it lets into the country. The model already exists in the concept of "impact aid" for school districts with large numbers of outsiders--military and government workers--brought in by the federal government.
If it doesn't make sense for the states to institute a policy of enforced ignorance, neither does it make sense for them to pick up the tab for the federal government's failure to enforce the law.