The Supreme Court has fashioned a new axiom: when faced with two absurd alternatives, choose the absurdity that does the least harm. That isn't what the court said, of course. But that is clearly what it did this week in deciding the case involving a Texas law that authorized school districts to deny free education to the children of illegal immigrants.
It is absurd to assert that noncitizens whose very presence in a state is unlawful have a constitutional right to the benefits of citizen-financed public education. It is absurd to condemn an estimated 3 million to 5 million children, most of whom, as a practical matter, are permanent residents, to lives of ignorance-enforced poverty. Five members of the court, opting for the less harmful absurdity, struck down the Texas law. I'm glad they did, even though the constitutional underpinnings for their decision seem transparently weak.
The majority found the basis for its morally and socially correct decision in the "equal protection" clause of the 14th Amendment, which says that no state may "deny to any person within its jurisdiction the equal protection of the laws." The undocumented children are clearly persons and as clearly within the jurisdiction of the state of Texas. The crucial question, however, was whether a state can have constitutionally valid reasons for distinguishing between persons lawfully within its borders and those illegally there.
Common sense and a common-sense reading of the Constitution say yes. The majority, however, took note of the fact that the minor children of illegal immigrants would be punished, unjustly, for the illegality of their parents. In deciding that the citizenship status of the children is essentially irrelevant, the majority cited an earlier decision holding that the 5th Amendment protects illegal aliens from invidious discrimination by the federal government. Still, it seemed to be stretching a point to reach the disputed Texas statute. If you come home to find an intruder docilely watching television in your living room, it is unlawful for you to shoot him. That makes sense. But it makes no sense to hold that you must treat him as a member of the family--even if he is a minor deposited in your house by his desperate parents. It is easy enough to make the case that you ought to feed the child, in spite of his unlawful presence in your home--at least until he can be turned over to the authorities. But the court majority turned that moral imperative into a constitutional one. Chief Justice Warren E. Burger, who wrote the dissent, put it this way:
"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." But, he added, the Constitution does not grant the court "the authority to strike down laws because they do not meet our standards of desirable social policy, 'wisdom,' or 'common sense.'"
The point seems obvious. And yet the conclusion that necessarily stems from it is unacceptable. It clearly cannot be in the interest of the United States or of Texas to turn millions of youngsters into illiterate, unemployable, poverty-wracked adults.
It's too bad the court was unable, on the facts before it, to get to the real nub of the problem: the fact that the Texas situation exists because of the federal government's failure to establish and enforce a reasonable and coherent immigration policy. If the court had been able to reach that issue, it might have decided the children should be educated, in Texas, but at the federal government's expense. Given the actual situation, Tuesday's decision was the lesser of two absurdities.