Minnesota's Constitutional Obligation to Educate all Children includes the Undocumented

 In these times when nothing is unthinkable; no rights seem sacred, and the constitutional order has been turned upside down.  Its time to review and protect the rights of undocumented children to a free public education.   That right, which was recognized by the United States Supreme Court in its 1982 Plyler v. Doe decision can no longer be considered secure.  For this reason, JvonKorff on Education devotes this post to explaining why Minnesota's constitutional education clause independently protects that right.  

Plyler v. Doe (1982) held that a state may not deny free public K–12 education to children based on their undocumented immigration status. The Supreme Court ruled that:

• Undocumented children are “persons” under the Fourteenth Amendment and are entitled to Equal Protection.

• Texas’s law withholding school funding for undocumented children imposed a severe, lifelong hardship on a discrete class of children not responsible for their status.

• The state failed to show a substantial state interest sufficient to justify that discrimination.

As a result, states and school districts must provide free public elementary and secondary education to undocumented children on the same terms as other students.

The Niskanen Center reports that a number of states are considering legislation to impair the Plyler constitutional right.  In addition, the Center warns that: 

In recent years, we have seen a surge in state-level initiatives targeting immigrant communities. The Supreme Court has also demonstrated an increasing willingness to overturn established precedent under the Fourteenth Amendment.² This evolving legal landscape has emboldened organizations to advocate for policies that challenge Plyler, including efforts to impose state tuition requirements on undocumented children in public schools, threatening the accessibility of education for vulnerable populations.  States are increasingly devising new strategies to challenge Plyler’s protections through indirect means that create practical barriers to public education access.

State constitutional protections thus will provide an important constitutional backstop to protect against federal Supreme Court erosion.  

 Minnesota is one of many states that inserted a constitutional right to a free public education in their constitution in the 1850's and thereafter.   A very few of those states originally limited the right to citizens, but the vast majority of states extended that right to all children residing in, or subject to the jurisdiction of the state.  Minnesota is an example of a state which did not restrict the right to citizens.   Minnesota's constitutional education clause provides:

The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools. The legislature shall make such provisions by taxation or otherwise as will secure a thorough and efficient system of public schools throughout the state.

The constitution does not authorize denial of public education to non citizens.  The public education system was to be general and uniform, thorough and efficient.   It is reasonably clear that the authors intended that a thorough, efficient and uniform education would be extended to all children.  The Minnesota Constitution’s Education Clause was drafted under the influence of the common school movement,inspired by Horace Mann and others. Mann’s thesis was that “public education had the power to become a stabilizing as well as an equalizing force in American society” . . . and that “Education . . . is the great equalizer of the conditions of men—the balance-wheel of the social machinery.” Failure to provide a public education to immigrants would undermined the purpose of that uniform education. 

Two years after adoption of the Constitution, the 1860 U.S. Census showed that Minnesota had a total population of about 172,000 people. Of these, approximately one-third (about 33%) were foreign-born (that is, immigrants from outside the United States). The state was aggressively attracting immigrants to provide agricultural and other labor to build the new state. Extended families often included citizens and non citizens. An important purpose of the constitutional clause.  When the constitution was adopted, the convention  authorized translation and printing of the constitution in immigrant languages for public distribution printing: 15,000 copies total, including 5,000 German, 2,000 Swedish, 2,000 French.  Related translation resolutions appear in the same proceedings (German/Swedish/French translations).  The Constitution was drafted to protect Minnesota's immigrant citizens.  

There is no suggestion  During the late 1800s: Minnesota continued to have very high immigrant enrollment.   Many of these children were not U.S. citizens, and often their parents were not either. There appears to be no record of Minnesota courts, statutes, or statewide administrative rules authorizing school districts to exclude children based on alienage.  The best reading of Minnesota’s constitution is that the constitution intended to provide an education to all of these children.  The same rationale adopted by the Plyler Supreme Court would certainly be applied by Minnesota's Supreme Court even if the US Supreme Court regressed from that decision.   The Court explained:

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.” Plyler v. Doe, 457 U.S. at 221

The Court recognized that:

“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 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.

To solidify Minnesota's implementation of this constitutional principle, the Minnesota legislature should adopt protective legislation that builds a statutory framework around public schools orderly education of immigrant students.  There is precedent for doing that in state and federal special education legislation.  After a series federal courts decreed that free and appropriate education must be delivered to students with disabilities, the Minnesota legislature adopted a statutory framework to implement the constitutional right, and Minnesota should now do the same for this vulnerable class of students.