THERE IS widespread agreement that it is un wise for a state to bar the children of illegal aliens from the public schools. The state of Texas, swamped with undocumented Mexican workers, sought to discourage such immigration and save scarce education money for its own citizens by enacting a statute authorizing local school districts to turn away or charge tuition to children whose parents are here illegally. A handful of smaller jurisdictions across the country--including Prince George's County--adopted a similar policy. Not only does this practice penalize children for something that is beyond their control, it is also not in the long-term interest of the government to impede the basic education of children, most of whom will probably reside in this country for the rest of their lives.
Having said that, it is quite another thing to find that the exclusion policy is not simply unwise but unconstitutional. This is what the Supreme Court did when, in the case of Plyler v. Doe, it struck down the Texas statute by a 5 to 4 vote. Justice Brennan, writing for the majority, found that discrimination by a state against the children of illegal aliens is a violation of the equal protection clause of the l4th Amendment. Chief Justice Burger, writing for the dissenters, put their objections in the clearest possible terms: "Denying a free education to illegal alien children is not a choice I would make were I a legislator. . . . But that is not the issue; the fact that there are sound policy arguments against the Texas legislature's choice does not render that choice an unconstitutional one." Emphasizing the rights and responsibilities of elected legislatures in formulating social policy, he continued, "The Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem."
The dissent is a resounding call for judicial restraint in the face of demands upon the courts to remedy the failures--or the slow pace--of the political process.
The practical impact of this decision will not be broad. It is estimated that only 20,000 to 30,000 children are involved, and Texas Gov. William Clements says the state will find the money to educate them. But questions with much wider application that involve enormous amounts of money lie ahead. Justice Powell, in a footnote to his concurring opinion, invites further litigation by asserting: "If the resident children of illegal aliens were denied welfare assistance, made available by government to all other children who qualify, this also--in my opinion--would be an impermissible penalizing of children because of their parents' status." The fact is, of course, that most states already deny welfare benefits to those who are in this country illegally. Undocumented aliens are also barred by federal law from the food stamp program, Medicare, Medicaid and a host of other social welfare programs.
In sorting out society's responsibilities for those who are in this country without permission and in violation of law, the courts would be wise to attach great weight to the decisions of elected legislatures. Judicial extension of entitlement programs to millions of illegal aliens will be a lot more controversial than providing public education to 20,000 young children. And it's a good bet that these more difficult questions are just around the corner.