Association for Public Policy Analysis & Management

In Plyler v. Doe (1982), the U.S. Supreme Court guaranteed undocumented children access to public K-12 education in the United States. Rather than justify its decision through due-process or equal-protection law, like the landmark Brown v. Board of Education (1954), the Court extended otherwise unavailable rights to undocumented migrant children through equitable principles.

While the U.S. Supreme Court no longer actively recognizes a distinction between law and equity, rights based in equity remain less secure than those based in law. In Part I of this article, I argue, as a threshold matter, that Plyler’s foundation in equity renders it and the rights it protects uniquely vulnerable to judicial review. These concerns are amplified by the recent Trump v. Hawai’i (2018) decision, which affirmed deference to the presidential executive over matters of immigration through the naturalization power. In Part II, I seek to establish a more concrete foundation in law for the eponymous Plyler principle by elaborating and extending an underdeveloped point of law in the case’s text that discusses possible constraints on the president’s plenary naturalization power with respect to unequal treatment of undocumented migrant youth. Key to my re-imagining of distinct due-process and equal-protection analyses as a single cohesive Fourteenth-Amendment doctrine are empirical considerations. In Part III, I discuss these considerations which include proper identification of constraints and incentives on cross-national migration as economic-, political-, and social-vulnerability inducing conditions; and evaluations of these vulnerabilities as possibly requiring more stringent scrutiny of federal laws that would harm such migrants.