PERSONHOOD, PROPERTY, AND PUBLIC EDUCATION: THE CASE OF PLYLER V. DOE

Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recognize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like residency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, for instance, by recognizing education as a public good or human right.

The Court has upheld a constitutional right of access to public schools on just one occasion. In Plyler v. Doe, the Justices found that Texas could not bar undocumented students from schools or charge them tuition. The Court did not declare education a fundamental right or alienage a suspect classification. Instead, the opinion relied on several rationales, some property-based and some not. Residency, for instance, featured prominently in the case, but so did a trope of childhood innocence. Recently, there have been calls to revisit Plyler, making this an opportune moment to evaluate how its reasoning will fare. Despite growing interest in property-based entitlements as a strategy for inclusion, Plyler’s fate will likely turn on considerations that transcend property: the blamelessness of children, the cruelty of relegating them to a lifetime of illiteracy, and the implications that such deliberate indifference has for our democratic integrity.

The full text of this Essay can be found by clicking the PDF link to the left.

* Distinguished and Chancellor’s Professor of Law, University of California, Irvine School of Law. I would like to thank professors at Texas A&M University School of Law, including Tim Mulvaney and Peter Yu, who provided helpful feedback on an earlier draft during a Faculty Workshop there. I also received insightful comments during an intellectual life workshop at the University of California, Irvine School of Law, including input from Ken Simons. I appreciate assistance that I received from Michelle Kniffin at UCLA School of Law and Amy Atchison at U.C. Irvine School of Law in gathering documents on Plyler v. Doe and Evenwel v. Abbott. I further benefited from the thorough and thoughtful comments that I received from Nicolás N. Rodríguez and other editors at the Columbia Law Review. Finally, I am grateful for support from the American Bar Foundation and U.C. Irvine School of Law that has enabled me to conduct research on “The Future of Latinos in the United States: Law, Opportunity, and Mobility.” This Essay is dedicated to the memory of the late Professor Michael A. Olivas, who worked tirelessly to ensure equity and access for undocumented students.

INTRODUCTION

In thinking about education and property, much of the dynamic is driven by disentitlement. In 1973, the U.S. Supreme Court’s decision in San Antonio Independent School District v. Rodriguez made the right to education a constitutional orphan. 1 411 U.S. 1 (1973). The Court refused to find that the Equal Protection Clause included protection for equal education. 2 Id. at 28. Nor was education the kind of bulwark of liberty, namely the kind that supports participation in the political process, that received any special protection under the First Amendment. 3 Id. at 35–37. Although the Court suggested that there might be a right to a basic education, the Justices have yet to endorse this principle. 4 Id. at 25 & n.60; Matthew Patrick Shaw, The Public Right to Education, 89 U. Chi. L. Rev. 1179, 1181 (2022). In the intervening years, education has been searching for a constitutional home, and property has presented itself as a possibility. Law professor Matthew Shaw, for example, has argued that education is a protected property interest under substantive due process. 5 Shaw, supra note 4, at 1183–88. Although the odds of succeeding with such a claim have dimmed considerably since the Supreme Court rejected a substantive due process right to reproductive freedom in 2022, 6 See Dobbs v. Jackson Women’s Health Org., No. 19-1392, slip op. at 5 (U.S. June 24, 2022) (rejecting a substantive due process right to an abortion because the right does not appear in the Constitution and is not “implicit in the concept of ordered liberty” (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997))). the notion that education has property-like qualities persists. Often, these qualities are equated with privilege and exclusion rather than equity and inclusion. 7 See, e.g., LaToya Baldwin Clark, Education as Property, 105 Va. L. Rev. 397, 398–401, 408–10 (2019) [hereinafter Baldwin Clark, Education as Property]; LaToya Baldwin Clark, Stealing Education, 68 UCLA L. Rev. 566, 575–77 (2021) [hereinafter Baldwin Clark, Stealing Education].

Even so, scholars still hope that treating education as a form of property can promote access for disadvantaged children. For instance, Professor Shaw cites Plyler v. Doe 8 457 U.S. 202 (1982). as the Supreme Court opinion that comes closest to ensuring a right to education for vulnerable students. 9 Shaw, supra note 4, at 1220–26. He believes that the decision rested on unspoken recognition of a vested property interest in public education. 10 Id. at 1223–26. In Plyler, the Court declared that Texas violated the Equal Protection Clause when it allowed public schools to bar undocumented students or charge them tuition. 11 Plyler, 457 U.S. at 230. The opinion did not declare a right to a basic education but instead offered a mélange of reasons for its holding. Some justifications were rooted in property-like entitlements, but others reflected a fraught discourse over immigration by invoking conceptions of the public good as well as norms of fundamental human decency. 12 See infra Part II. The Court’s recent opinion overturning the right to an abortion has sparked calls to challenge Plyler as similarly misguided judicial activism, 13 See David Martin Davies, Texas Matters: Why Abbott Wants Plyler v. Doe Overturned, Tex. Pub. Radio (May 16, 2022), https://www.tpr.org/podcast/texas-matters/2022-05-16/texas-matters-why-abbott-wants-plyler-v-doe-overturned [https://perma.cc/8K8H-LKPB]; Kate McGee, Gov. Greg Abbott Says Federal Government Should Cover Cost of Educating Undocumented Students in Texas Public Schools, Tex. Trib. (May 5, 2022), https://www.texastribune.org/2022/05/05/greg-abbott-plyler-doe-education/ [https://perma.cc/F3LG-HXSE]. so it seems timely and worthwhile to consider the likely staying power of the decision’s varied rationales.

First, this Essay will consider competing conceptions of property as they bear on education. To make property-like entitlements consistent with full access to education, scholars have modified traditional doctrinal principles to serve broader objectives of distributive fairness. For critics of property-based approaches, though, even elastic interpretations of the concept cannot reliably advance equal educational opportunity. As a result, some scholars have adopted alternative approaches that focus on education as a public good or a human right.

Next, this Essay will discuss how property-like concepts played a complex role in finding a right to education in Plyler. Undocumented families invoked an entitlement based on residency in the school district to deflect exclusion based on their immigration status. Although property-like claims figured significantly in the case, other factors were at work as well. The trope of childhood innocence allowed undocumented children to counter arguments that they should be punished for their parents’ decision to enter the country illegally. The students’ blamelessness became a shield against the inherited stigma that came with their parents’ immigration status.

This Essay closes with a reflection on Plyler’s likely fate if it were to return to the Court today. Residency remains an important way to allocate educational resources. However, its power derives from policymaking rather than any constitutional guarantee. Meanwhile, Congress and the states have grown bolder in enacting restrictive legislation that denies public benefits to undocumented individuals. Only Plyler has stood in the way of extending these policies to elementary and secondary education. Interestingly, the decision’s most enduring argument may be based not on property-like entitlements but on the innocence of children. The fear that dehumanizing border-enforcement practices threaten fundamental democratic values is likely to remain a critically important element of any defense of Plyler.