Bench Memos

Justice Brennan, “Undocumented Children,” and “Illegal Aliens”

In her latest online column for the New York Times, Linda Greenhouse recounts the “brief, shining moment 32 years ago when the conservative Burger court ruled” in Plyler v. Doe that “states can’t exclude undocumented children from the free public education provided to all other children.”

Little needs to be said about Greenhouse’s legal basis—or, rather, lack thereof—for celebrating the constitutionally unsound ruling, as she seems to think (in approvingly summarizing Justice Powell’s position) that the Supreme Court has a roving commission to “interven[e] to save the country from a policy demonstrably destructive of the social fabric.”  I’ll just note briefly that Greenhouse’s attribution of the ruling to the “conservative Burger court” is a distortion—not only because the Burger Court wasn’t particularly conservative but also because the four justices on the Court with the strongest claim to the conservative label (Burger, White, Rehnquist, and O’Connor) were all in dissent in Plyler. And I’ll pass over her strained link between Plyler​ and the Courts recent order on Texass voter ID law.

I’d actually like to address an assertion that Greenhouse makes only parenthetically: that Justice Brennan “was a man ahead of his time in his use of ‘undocumented’” in Plyler. Greenhouse is correct that Brennan adopted that obtuse euphemism. (In ordinary English, one might suppose that an “undocumented child” is someone who doesn’t have documents showing that he is a child.) But her readers might readily infer that Brennan objected to using terms like “illegal alien.” Any such inference would be faulty. Here, for example, is one unremarkable paragraph from his opinion:

First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, § 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc. The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that “[c]harging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,” at least when compared with the alternative of prohibiting the employment of illegal aliens.

Throughout Plyler, Brennan uses the terms “illegal aliens,” “illegal migrants,” and “illegal immigrants” roughly as often as he uses “undocumented children” and its variants. Indeed, he may well use the latter phrase when referring to children because the alternative (“illegal alien children”) is rather ungainly.

In short, Brennan’s opinion in Plyler provides no support for anyone who wants to stigmatize usage of the phrase “illegal alien.” 

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