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Gabriel J. Chin

excerpted from: Gabriel J. Chin, Sweatt V. Painter and Undocumented College Students in Texas, 36 Thurgood Marshall Law Review 39 (Fall, 2010)(97 Footnotes Omitted)


Several of the most important Supreme Court cases from the second half of the 20th Century dealing with education and its denial came from Texas. They include Sweatt v. Painter, an effort by the state to admit African Americans only to a separate-but-equal law school instead of the University of Texas. Another milestone was San Antonio Independent School District v. Rodriguez, a 5-4 decision from 1973 upholding public school financing techniques that resulted in large disparities in funding per student between rich and poor districts. In 1982, in Plyler v. Doe, the Court held, in another 5-4 decision, that Texas could not condition the access of undocumented students to K-12 education on the payment of tuition.

Remarkably, Texas itself, or its political leaders, partially or completely reversed each of these policies. Five years after the embarrassment of Sweatt v. Painter, Texas became the first Southern state to formally desegregate its system of higher education, doing so largely without violence and as a policy decision, rather than by injunction. Although the U.S. Supreme Court upheld gross spending inequalities in Rodriguez, the Texas Supreme Court disagreed, requiring equalization under the state constitution.

Equally remarkable is the about-face of Texas with respect to education of undocumented children. In the mid-1990s, when Congress considered legislatively overruling Plyler, to make denial of K-12 education a part of federal immigration enforcement policy, the unlikely saviors included Republican Texas Senators Kay Bailey Hutchison and Phil Gramm. Not only did Texas legislators help save Plyler, they expanded it to higher education. Since 2001, Texas law has allowed any person to attend an institution of higher learning at in-state tuition rates, if they graduated from a Texas high school, met certain residency requirements, and, if not a citizen or permanent resident, signed an affidavit promising to seek permanent residency as soon as they are eligible. Thus, not only did Texans save Plyler at the K-12 level nationally and extend it to higher education, but the people's representatives also granted a state subsidy to undocumented Texas youth.

Needless to say, this accommodation of undocumented students is controversial. Some leaders of immigration restriction oppose offering in-state tuition to undocumented students, as well as the Development, Relief, and Education for Alien Minors Act (DREAM Act), which would offer lawful status to young people who have been in the United States for a long time and further their education. The argument goes, allowing undocumented students in-state tuition, or, perhaps allowing them access to higher education at all, leaves criminal acts unpunished and rewards law-breaking. Further, it is contended that it is contrary to the rule of law.

This essay responds to the criticism of higher education of undocumented non-citizens through the lens of Sweatt v. Painter. It proposes that the decision itself, and its aftermath, offer insight and varying rationale supporting the outcome in Plyler v. Doe and its expansion to higher education. That is, some of the justifications for Sweatt also warrant respect for the educational interests of undocumented children who grew up in Texas.

The connection between Sweatt and Plyler goes beyond the anti-caste principle. The Fifth and Fourteenth Amendments apply to all persons, even one whose presence in this country is unlawful. Accordingly, United States citizens as well as undocumented students share a right to be free from unreasonable discrimination. But the situations of the students in Plyler and the class of students affected by Sweatt, in some ways, could not be more different. Heman Sweatt was a United States citizen, a member of the class for whom the Fourteenth Amendment was enacted. Undocumented non-citizens from Mexico, on the other hand, have no legal right to remain in the United States; they are subject to deportation at any time and they are not a part of the political community.

Both cases involved race to some degree. Heman Sweatt was denied admission on an express racial classification. Similarly, race has long been associated with United States immigration policy. From 1790 to 1965, the immigration and naturalization policy was closely tied to race. Persons of Mexican ancestry, even citizens, were subject to special burdens in the context of immigration, and to some extent are today. Given the history, it may well be part of the motivation for the Texas Legislature's exclusion of undocumented non-citizens from school is related to the fact that most of the people to be affected were of Mexican racial ancestry. Professors Marcia Yablon-Zug and Danielle R. Holley-Walker ask:

If, as the research indicates, educating undocumented workers would not increase tax payer costs and would in fact be financially and socially beneficial to a state, why then is there such opposition to the practice? Unfortunately, the answer appears to be based in the history of the Old South rather than the new. Racism seems to be the driving motivation behind anti-immigrant policies in the South.

Yet, the policy in Plyler was formally race-neutral, and the courts did not find that it was racially motivated.

The connection this essay emphasizes is jurisprudential, analytical, the realistic way in which Sweatt and Plyler understood the facts and applied the principles of constitutional law. The decisions were expansive and predictive, evaluating the interests of the parties to some degree based on what the Court thought was going to happen in the future. In both cases, the Court was right.

Part I of this essay examines the decision in Sweatt v. Painter. The decision is remarkable for its candid exploration of the ingredients of an excellent education. It also rests an optimistic and forward-looking prediction, necessarily speculative, about the integrated legal status and social relationships of African American lawyers. Similar sorts of predictions were part of the analysis in Plyler v. Doe, and support state efforts to provide for higher education to undocumented high school graduates.

Part II questions the idea that undocumented children are being illegitimately rewarded for their unlawful presence by being allowed to attend college. It looks at the treatment of another group of children who were the beneficiaries of illegal behavior, White students who attended segregated schools. In spite of formal requirements of equality, White schools were, in fact, far superior. There seem to be few or no instances where the law took strong steps to deprive these students of their ill-gotten benefits. Accordingly, there may be a generalizable principle that the innocent, not culpable for the actions of those in power, should not bear the burden of their misconduct.

Part III looks at the impact on the rule of law that would result if violations by undocumented immigrants went unpunished. It proposes that there were many instances where segregationists in Texas and elsewhere committed crimes that could have been prosecuted. Ordinarily, they were not prosecuted. Of course, for certain violent offenses, prosecution is always appropriate. But when dealing with certain kinds of offenses in certain circumstances, justice may be achieved without criminal prosecution. When dealing with widespread, non-violent conduct that was accepted as normal by broad segments of society, changes in legal rules, or a new decision to enforce them, may legitimately consider civil as well as criminal tools. This does not mean that the law can be broken on an ongoing basis without remedy. It does mean that civil measures and compromise might be better for society in the long run and fairer to individuals who are not responsible for the new or old rules.

. Professor of Law, University of Califoria, Davis School of Law. Email: This email address is being protected from spambots. You need JavaScript enabled to view it..