Punishing Children: Why the Attack on Plyler v. Doe Is an Attack on America’s Core Values

The effort to overturn Plyler v. Doe is a choice to condemn innocent children to a lifetime of illiteracy, ignorance, and diminished life chances.

In the fall of 1977, eight-year-old Laura Alvarez was preparing to enter the third grade in Tyler, Texas. Then her family was told she and her siblings could no longer attend school. The Tyler Independent School District (ISD) and Superintendent James Plyler had decided to charge undocumented children $1,000 a year in tuition – a fee her father’s meatpacking plant wages could not sustain for five children. On the first day of school, as her mother brought the child to the door, the principal was required to turn her away.

That act of organized cruelty by Tyler ISD – turning children away at schoolhouse doors – is what eventually produced Plyler v. Doe, the 1982 Supreme Court decision holding that Texas violated the Equal Protection Clause of the Fourteenth Amendment by denying undocumented children a public education.

For more than two generations of students, Plyler has stood as one of the most consequential Supreme Court decisions about children in American constitutional history.

As a child growing up in El Paso, Texas – more than 700 miles from Tyler, where Plyler originated – that Supreme Court decision was vital to my own community and its children. It ensured generations of students received the education they deserved and kept public schools from being turned into quasi-immigration enforcement agents.

Growing up, I had close friends, neighbors, classmates, and teammates whose families were directly affected by Plyler. They taught me much about life, and they have gone on to lead impressive lives that have benefitted their families, their communities, and our nation – all because a Supreme Court decision kept their schoolhouse doors open.

Children, families, neighborhoods, communities, and the nation would all be worse off if the Supreme Court had ruled differently in Plyler v. Doe.

Unfortunately, the Plyler decision is under the most serious threat of its existence.

Today, the House Judiciary Committee’s Subcommittee on the Constitution and Limited Government held a hearing in which Chairman Chip Roy called for the reversal of the Plyler decision.

In contrast, First Focus on Children and over 100 other organizations expressed ongoing support for the Plyler decision, drawn upon the same principles laid out in this blog. The case for protecting children needs to be affirmed with the public and in state capitols across the country.

The reason is that, since early 2025, lawmakers in six states have introduced legislation to restrict or eliminate children’s access to a public education – legislation deliberately designed, as the Heritage Foundation openly acknowledges, to manufacture a test case or “trigger law” that could bring Plyler before today’s Supreme Court in an effort to overturn the landmark decision protecting the education of all children.

These efforts should be firmly rejected and met with the arguments that defeated this position in 1982 – arguments rooted in the core values of children, American education, and justice. These arguments are as powerful today as they were then. Perhaps more so.

Tennessee Sen. Raumesh Akbari demonstrated exactly how to push back on the latest attack on children in her state.

Education Is Not a Government Benefit: It Is a Founding American Value

In the Plyler v. Doe decision, Justice Brennan got to the heart of what America has always said about itself:

The deprivation of public education is not like the deprivation of some other governmental benefit. Public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage; the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological well-being of the individual, and poses an obstacle to individual achievement.

Justice Brennan was drawing on a century of American constitutional reflection about what education means to a self-governing democracy. The Supreme Court had already written in Meyer v. Nebraska (1923) that “the American people have always regarded education and the acquisition of knowledge as matters of supreme importance.”

In Wisconsin v. Yoder (1972), the Court affirmed that “education prepares individuals to be self-reliant and self-sufficient participants in society.”

And in Brown v. Board of Education (1954), the Court was even more expansive:

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

Justice Brennan cited this long history of Supreme Court decisions and was explicit about their implications:

…education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.

This is not a liberal or conservative position. It is an American one. The vision of universal public education — of the common school as the institution through which every child, regardless of birth, gains the tools to participate in democratic life is as old as the republic.

Horace Mann, the 19th-century architect of public education in America, called the common school “the greatest discovery ever made by man,” the institution that would “equalize the conditions of men.”

The Founders themselves were preoccupied with education as the precondition of self-governance: Thomas Jefferson proposed a system of universal public schooling precisely because he believed that an ignorant people could not remain free.

To bar children from school is to exclude them from the foundational institution of American democratic life. It is to say, to these specific children and no others that the promise of American education does not extend to you. And that exclusion, as Justice Brennan recognized, is unjust and irrational because a democracy that deliberately produces illiterates within its own borders is undermining the social fabric it claims to be protecting:

Denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. Paradoxically, by depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority.

Justice Blackmun put it with particular force in his concurrence: “When a state provides an education to some and denies it to others, it immediately and inevitably creates class distinctions of a type fundamentally inconsistent with” the purposes of the Equal Protection Clause, because “an uneducated child is denied even the opportunity to achieve.”

When those children belong to an identifiable group, the state will have created a caste system.

The Tyler School Superintendent, James Plyler, had proposed the tuition requirement for undocumented children back in 1977, but later, Plyler himself came to agree with the Supreme Court.

“I’m glad we lost the Hispanic court case, so that those kids could get educated,” Plyler told Education Week in 2007. The man who initially enforced the exclusion came, in the end, to recognize what the Court had understood all along – all children should be given access to education.

Children Are Blameless: The Constitution Has Always Known This

Even those who believe that illegal immigration should be punished more severely have to grapple with a fundamental principle that runs through American jurisprudence like a load-bearing beam: guilt is personal.

As Professor Nicholas Serafin demonstrates in a recent Maryland Law Review article, this principle – that the state may not punish children for the conduct of their parents – is not merely a feature of Fourteenth Amendment equal protection clause. It is also embedded in the original 1787 Constitution itself. The Corruption of Blood Clause (Article III, Section 3) and the Bill of Attainder Clause together express what constitutional scholar Akhil Reed Amar calls the “nonattainder” principle: a founding prohibition on punishing families and children for the conduct of their parents.[1]

This principle, rooted in the original 1787 Constitution, reflects the Founders’ visceral revulsion at the English common law practice of corruption of blood, by which a parent’s guilt could render an entire family line legally and socially outcast – stripped of standing, property, and civic membership.

Serafin applies this principle directly to Plyler, arguing that the corruption of blood principle is best understood as a prohibition on state action that directly punishes children for the “sins” of their parents. As he explains, this was precisely how the Supreme Court construed the principle in cases like Weber v. Aetna Casualty & Surety Co., where the Court held that “sanctioning a child to dissuade the parent from engaging in purportedly immoral conduct ‘is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.’”^[2]

And it is exactly what Plyler prohibited.

We do not punish children for the acts of their parents. We do not impose sentences on people who committed no offense. And we have a particular, deeply rooted conviction that childhood – the condition of not yet being an adult, of not yet having the capacity to choose one’s circumstances – demands a different moral and legal accounting.

Brennan explained this point in the Plyler opinion:

The children of those illegal entrants are not comparably situated. Their “parents have the ability to conform their conduct to societal norms,” and presumably the ability to remove themselves from the State’s jurisdiction; but the children who are plaintiffs in these cases “can affect neither their parents’ conduct nor their own status.” Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.

This is not a technicality. It is a statement about the moral limits of government power – limits that exist precisely because we have always understood that children are different. A child does not choose where he or she is born. They do not choose which country their parents bring them to, or under what circumstances. They do not choose their immigration status any more than they choose their race, their parents’ income, or their native language. To punish them for those unchosen circumstances is to punish them for being a child.

The Court had established this principle in the illegitimacy cases before Plyler, holding that children born out of wedlock could not be denied rights because of their parents’ choices. The same logic applies here with equal force.

As Justice Powell noted in his concurrence, the Texas law “assigned a legal status to the children due to a violation of law by their parents” – children who “should not be left on the streets uneducated” as a consequence of actions over which they had no control.

Consider the concrete reality of what overturning Plyler would mean. In the same family, an undocumented child born abroad would be barred from school, while her sibling born in the United States would be entitled to attend as a citizen. The only relevant difference between these two children is where they happened to be born: a fact neither of them chose, and neither of them can change. The law would treat one as fully human and the other as ineligible for the most basic institution of American civic life.

We should call efforts to overturn Plyler for what they are: cruelty.

And it is a cruelty that the opponents of Plyler have tried to dress up as fiscal prudence or immigration enforcement. It is none of those things.

It is the deliberate punishment of children for circumstances entirely beyond their control, which is precisely what the Supreme Court of the United States said, 44 years ago, “does not comport with fundamental conceptions of justice.”

Importantly, even the dissenting justices in Plyler explicitly agreed that it would be wrong to “tolerate creation of a segment of society made up of illiterate persons.” Although they disagreed with the majority on judicial role and constitutional methodology, they did not disagree that condemning children to illiteracy was wrong.

That moral consensus is worth remembering: even those who would rule against the undocumented children in 1982 conceded the cruelty of what Texas was doing.

Today’s opponents of Plyler do not even concede that much. In fact, they are expressly opening the door for government to deny different classes of children access to education, such as kids with disabilities.

Condemning Children to Illiteracy Is a Dehumanizing Act That Strikes at the Nation’s Soul

The third pillar of Plyler‘s moral reasoning is the one that should silence any remaining ambiguity about what overturning the case would mean. Justice Brennan did not mince words:

[The Texas law] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.

And then, even more directly:

Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social, economic, intellectual, and psychological well-being of the individual, and the obstacle it poses to individual achievement, make it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause.

Justice Brennan is describing a lifetime sentence: one imposed on innocent children. For these children, the “stigma of illiteracy” means that a child who was turned away from school will carry that deprivation every single day of her life, in every job application she cannot complete, every form she cannot read, every opportunity she cannot access, and every moment she cannot help her own children with their homework.

The Fourteenth Amendment was designed, among other things, to prevent the creation of permanent castes in American society. That was its animating purpose after the Civil War: to ensure that the law could never again be used to maintain a class of human beings in permanent subordination. “A legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment.”

This is what the Heritage Foundation’s proposal amounts to: the deliberate, legally-sanctioned creation of a generation of children purposely denied an education within American borders while actively promoting access to education in countries across the world.

The model state legislation that Heritage has proposed is not designed to improve schools, save money, or even reduce immigration. It is designed to harm children and generate a lawsuit. The children who would be turned away from school under the Heritage Foundation’s proposal would be collateral damage – once again.

Quite frankly, it is an ongoing disturbing pattern from the Heritage Foundation.

Children as Collateral Damage

The FWD.us research confirms what Justice Brennan intuited: the additional educational attainment protected by Plyler increased the income of beneficiaries by $171 billion between 1982 and 2022, and will increase GDP by $2.71 trillion over their lifetimes. The state and local tax revenues generated by Plyler beneficiaries exceed the cost of educating them by more than $633 billion. The children who were kept in school became teachers, nurses, mechanics, and parents of American citizens.

The “subclass of illiterates” that Justice Brennan warned against never materialized because Plyler prevented it.

Overturn Plyler, and it will materialize.

That reality is based on what we know education does and what illiteracy costs: confirmed by the evidence of what has happened in countries that have chosen the path of educational exclusion.

The Niskanen Center documents the outcomes in Malaysia, the Dominican Republic, and Lebanon, where restrictions on educational access for undocumented or migrant children have produced exactly what Brennan feared: the emergence of permanent underclasses, heightened risks of exploitation, and generational cycles of exclusion.

Child labor. Marginalization. Communities locked permanently out of the workforce. This is not a distant cautionary tale. It is a preview.

The Heritage Argument Doesn’t Hold, Even on Its Own Terms

Heritage’s position is that undocumented immigrants, including children, should not be eligible for federal, state, or local government benefits because the receipt of such benefits facilitates longer unlawful residence and takes resources from American citizens and lawful immigrants.

But this argument fails on its own terms, for three reasons.

First, as Justice Brennan established, education is not “a governmental benefit indistinguishable from other forms of social welfare legislation.” It occupies a unique constitutional and social position.

Second, even purely on fiscal grounds, the argument collapses. Undocumented immigrants contribute significantly to federal, state, and local tax bases, often at rates comparable to or higher than their U.S.-born counterparts, more than offsetting the costs of educating their children. The families whose children attend these schools pay property taxes – directly as homeowners or indirectly as renters – and sales taxes. They are accessing a system they help fund, and the benefits to society are immense.

Third, and most fundamentally, the argument proves too much. If the principle is that government may deny any benefit to children based on their parents’ immigration status, there is no logical stopping point. That principle would justify denying emergency medical care, fire protection, or any other government service to a child whose parents entered the country illegally. No one – not even Heritage – is willing to defend those conclusions. And if those conclusions are unacceptable, the principle that generates them is unacceptable too.

What the Law Requires, and What We Owe

The legal case for Plyler is strong. Analysis by law professors Steven Calabresi and Lena Barsky demonstrates that it is defensible even under the originalist framework that today’s Court professes to apply: the Fourteenth Amendment’s text protects “persons,” not citizens, and at the time of its adoption in 1868, no federal immigration law created the category of “undocumented” presence. You cannot read a 20th-century immigration classification into an 1866 constitutional text and call it originalism.[3]

But the deeper case for Plyler is not just legal. It is moral. And it is one that crosses ideological lines, because it rests on values that Americans of virtually every persuasion claim to hold.

We believe that children are innocent. We believe that punishment should follow from choices, not from circumstances of birth. We believe that education is the foundation of American democratic life and the mechanism through which every generation earns its place in the republic. We believe, as Jefferson believed and Horace Mann believed and the Court in Brown believed, that a self-governing democracy cannot afford to maintain a permanent class of the uneducated and the excluded.

The effort to overturn Plyler does not engage with any of these values. It simply ignores them, substituting a theory of legal status for a theory of childhood, of justice, and of what America owes the children who live within its borders.

Those children did not choose to be here. They chose to go to school and to participate in society. The question before us is whether we will honor their ability to be educated or condemn them to a lifetime of illiteracy, ignorance, exploitation, and diminished life chances that Justice Brennan warned against 44 years ago.

---

ENDNOTES

[1] Amar, A.R. (1996). Attainder and Amendment 2: Romer’s Rightness. Michigan Law Review, 95, 203, 209–215; Serafin, N. (2025). The Corruption of Blood as Metaphor. Maryland Law Review, 84:3, 597-644; Stier, M.E. (1992). Corruption of Blood and Equal Protection: Why the Sins of the Parents Should Not Matter. Stanford Law Review. 44:3, 727-757.

[2] Serafin, supra note 18, at 641 (quoting Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972)).

[3] Calabresi, S.G. & Barsky, L.M. (2017). An Originalist Defense of Plyler v. Doe. BYU Law Review, 2017:2, 225-329.