Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio.
Speaker 1: Forty years ago, the Supreme Court upheld the right of
Speaker 1: all students to a public school education regardless of their
Speaker 1: legal status in the case of Plyler Vidoux. Now, in
Speaker 1: light of the Supreme Court's apparent willingness to overturn precedent
Speaker 1: in the case of Roe View Wade, the Governor of
Speaker 1: Texas Greg Abbott says the Plyler decision is another longstanding
Speaker 1: precedent they'll challenge Water. Both of those two decisions are
Speaker 1: going to have to go in that the Arizona decision
Speaker 1: will have to go giving states full authority to enforce
Speaker 1: usmgression laws, or Plotter would to go, saying that the
Speaker 1: federal government is going to be responsible for paying the
Speaker 1: states for the cost of education that we're incurring because
Speaker 1: of the mass illegal comisation that we're seeing today compared
Speaker 1: to the way it was forty years ago. My guest
Speaker 1: is Leon Fresco, a partner at hollanden Knight, tell us
Speaker 1: about Pliler versus Dough, which has been on the books
Speaker 1: for forty years. Tiler versus, though, was a very close
Speaker 1: decision back in the eighties. It wasn't a slam dunk
Speaker 1: by any means. And the state of Texas had said,
Speaker 1: we have a problem where people who don't have status
Speaker 1: are coming into Texas and they're bringing their kids to school,
Speaker 1: and the fact that those kids are being educated in
Speaker 1: Texas is causing a resource constraint on us, and so
Speaker 1: we are going to make it that you have to
Speaker 1: be here legally in order to go into public schools
Speaker 1: in Texas. And so the people who sued had two
Speaker 1: basic theories for why it is that they would too.
Speaker 1: They said that, first of all, there should be a
Speaker 1: fundamental rights education for all persons of the United States.
Speaker 1: And second, they said that even if there isn't a
Speaker 1: fundamental rights to education, there should be an equal for
Speaker 1: election violation here because the children are in some form
Speaker 1: or fashion and protective class that the government should have
Speaker 1: scrutiny for. And what the court ultimately did and this
Speaker 1: was sort of a very difficult decision in terms of
Speaker 1: precedents that would be re examined, as they said, well,
Speaker 1: first of all, we're not going to declare a fundamental
Speaker 1: right to an education, because what ends up happening there
Speaker 1: is then you sort of engender. They didn't say this,
Speaker 1: but the idea was that would engender all these lawsuits
Speaker 1: then about funding and kids in certain places and not
Speaker 1: getting as much funding as kids in other places. So
Speaker 1: they didn't want to go down that rout and so
Speaker 1: instead they said, this is an equal protection violation. But
Speaker 1: there's no scrutiny that needs to be given. This has
Speaker 1: to go under the rational basis test, because the government
Speaker 1: is allowed to discriminate between people with immigration status and
Speaker 1: people without. But we can see no rational basis whatsoever
Speaker 1: for X polluting children who don't have legal status from
Speaker 1: the school. That's too cool. It doesn't solve anything about
Speaker 1: the parents motivations to come here, and so there's no
Speaker 1: tie to it. And so the question is given how
Speaker 1: close a case of decision that was back then, and
Speaker 1: given a at least idea now that's out there that
Speaker 1: the courts may start looking at past presidents. The state
Speaker 1: of Texas is saying, well, why don't we take a
Speaker 1: run at this issue, given that we believe we could
Speaker 1: find at least five, maybe six justices to say that
Speaker 1: there is a rational basis to say that kids without
Speaker 1: status shouldn't be going to public school as opposed to
Speaker 1: kids with status, and so that's really what it would
Speaker 1: tie down to, is would the Supreme Court be willing
Speaker 1: to say that that there is a rational basis for
Speaker 1: a law that actually discriminates between kids with status and
Speaker 1: kids without status, or would they make their decision that
Speaker 1: there is no such rational basis. Wh Texas have to
Speaker 1: show that the expenses for educating immigrant children have skyrocketed
Speaker 1: anything like that, correct, Texas isn't going to have to
Speaker 1: show economic harm that would provide their rational basis for
Speaker 1: doing this. And what Texas is saying now is if
Speaker 1: this was just immigrants coming in speaking English or Spanish,
Speaker 1: we'd be fine. But now we actually have a new dimension,
Speaker 1: which is immigrants are coming in who speak all sorts
Speaker 1: of languages that aren't just limited to English and Spanish.
Speaker 1: And when we need to put those kids in our
Speaker 1: public schools, we have to employ English as a second
Speaker 1: language teachers who will then move these children from their
Speaker 1: language into English. And all of that requires immense expenditures
Speaker 1: to get students to learn English from all of these
Speaker 1: different second languages. So that's what Governor Rabbitt is saying
Speaker 1: in Texas. And so if that lawsuit is filed, I
Speaker 1: think there will be a very interesting year or two
Speaker 1: where it's to analyze whether the court actually will reverse
Speaker 1: Plyler versus though, which would of course have some pretty
Speaker 1: devastating consequences for all of the kids who are in
Speaker 1: school right now who don't have satus. I mean, we
Speaker 1: hear all of the stories about the dreamers, and none
Speaker 1: of those dreamers who have all these oppressive stories would
Speaker 1: have been possible have they not been permitted to go
Speaker 1: into the public schools in the first place. And so
Speaker 1: this becomes quite a complicated story. What Abbot said Texas
Speaker 1: wants is that the federal government should foot the bill. Well,
Speaker 1: that's certainly one way to eliminate the rational basis from Texas,
Speaker 1: which is that if the federal government were to fund
Speaker 1: all of the additional costs for educating children without status
Speaker 1: in the United States, then State of Texas would be
Speaker 1: toward of reliefs of its standings to be able to
Speaker 1: see in that regard. So, both from a rational and
Speaker 1: a judicial perspective, it does seem like the right argument
Speaker 1: for the governor effects Us to be making, But it
Speaker 1: remains to be seen whether any such funding would be
Speaker 1: forthcoming given the sort of splits that we have in
Speaker 1: the Congress right now, it'd be very unlikely that you
Speaker 1: would see a whole new batch of government funding to
Speaker 1: sort of make up for the gaps that are caused
Speaker 1: by educating people without status. You do see this in
Speaker 1: the healthcare field. There actually are healthcare streams of funding
Speaker 1: that are there for what it's called emergency medical services.
Speaker 1: And even though that's not actually targeted towards people without status,
Speaker 1: that's the lion chair of the people appearing at a
Speaker 1: lot of these emergency rooms now who don't have any
Speaker 1: kind of healthcare benefits of any kind, And there is
Speaker 1: this sort of emergency disparate share Medicare Medicaid funding that
Speaker 1: does go to the states for this purpose, and so
Speaker 1: would be interesting to see if the federal government would
Speaker 1: consider something like that for education. But nevertheless, it's something
Speaker 1: that remains to be seen whether that would be able
Speaker 1: to happen in time to release Texas of spending. If
Speaker 1: Texas wins this, the federal government will have to come
Speaker 1: in probably and pick up the tab. Well, I mean,
Speaker 1: if they win it, then it's unclear how that could happen,
Speaker 1: because if they win a case that that they don't
Speaker 1: have to educate students without status. Then the question is
Speaker 1: does that second issue of the federal government being able
Speaker 1: to relieve the states of that duty actually get decided
Speaker 1: and litigated there. My fear would be that you would
Speaker 1: even get to that second issue of whether the federal
Speaker 1: government could actually alleviate this by paying. I mean, it
Speaker 1: would be logical, but it's unclear that we get there,
Speaker 1: because it would just be decided like Pliler was, is
Speaker 1: there a rational basis to discriminate between students with status
Speaker 1: and students without status? So I'm one ding how Texis
Speaker 1: would go about this because it's not like the Biden
Speaker 1: administration is telling them to do this. So they can't
Speaker 1: sue the Biden administration. This is a Supreme Court decision.
Speaker 1: They can't sue the Supreme Court. How would they even
Speaker 1: get this before the court? Well, what has to happen
Speaker 1: is the Texas state legislature would actually have to pass
Speaker 1: the law that would again they would be at the
Speaker 1: beginning and unconstitutional laws, but they have to pass on
Speaker 1: unconstitutional laws that banned undocumented students from being able to
Speaker 1: go to school, or maybe would do something like some
Speaker 1: of the laws they've been doing with abortion, where it's
Speaker 1: a decent of that, so it's not the exact same thing. So,
Speaker 1: for instance, they might pass the law that charges undocumented
Speaker 1: students full tuition in order to go to school, so
Speaker 1: it doesn't ban them, but says, if if you want
Speaker 1: to come, you have to pay full tuition, whatever that
Speaker 1: might be. And so then that would create a situation
Speaker 1: where if it's not challenged, the kids can't go to school.
Speaker 1: If it's challenged, then it would go all the way
Speaker 1: to the Supreme Court to decide whether that law can prevail.
Speaker 1: Or Now this is years in the making because the
Speaker 1: Texas legislature isn't even in session right now, right it
Speaker 1: would it would not be something unless there was a
Speaker 1: special session dictated, or unless some other states tried to
Speaker 1: do the same thing. It doesn't seem to be something
Speaker 1: that we would get a decision on any time soon.
Speaker 1: But of course, if any state did this, or if
Speaker 1: Texas were to do a special session and then they
Speaker 1: would vile an injunction, and then that injunction would be denied,
Speaker 1: you could pretty quickly start getting working that way up
Speaker 1: through the injunctive process. And so while now it remains
Speaker 1: in the theoretical it's an important decision to be on
Speaker 1: the lookout for, as is the one in Arizona versus
Speaker 1: the United States. That's the second decision that people have
Speaker 1: been saying, well, at the Court, it's going to start
Speaker 1: reversing prior decisions in the immigration realm. There's Splidler versus though,
Speaker 1: but also there's Arizona, Una versus the United States. Tell
Speaker 1: us just briefly what Arizona versus United States did sure
Speaker 1: in Arizona versus United States, we remember this in the
Speaker 1: Obama administration that Arizona said, we don't think the Obama
Speaker 1: administration is sufficiently enforcing the immigration law, so we are
Speaker 1: going to start arresting and detaining people who don't have
Speaker 1: dimmigration statics. And so the federal government challenge that and
Speaker 1: said they can't enforce immigration law unless they're doing it
Speaker 1: with the consent of the federal government and in conjunction
Speaker 1: with them, not just on their own. And the Court
Speaker 1: at that time agreed, and Justice Roberts agreed. So that's
Speaker 1: an important vote. That means there would be at least
Speaker 1: four votes for maintaining Arizona. But there are justices who
Speaker 1: were there at the time Alito and Thomas, who supported
Speaker 1: the position of Arizona, and now there's three justices that
Speaker 1: are unaccounted for Coney, Barrett, Kavanaugh, Gorsage. And so the
Speaker 1: idea is, could they provide the five judge majority to
Speaker 1: overturn that Arizona case and allow states like Texas and
Speaker 1: Arizona to start arresting and detaining for who knows how
Speaker 1: long people without status and their states. Has the Court
Speaker 1: changed enough since Flyler on immigration decisions? I mean, do
Speaker 1: we know how these new justices are going to rule
Speaker 1: on immigration decisions? There have been some decisions so far
Speaker 1: that have been very helpful for the immigrants rights community.
Speaker 1: There was a decision called the Javes which dealt with
Speaker 1: notice that needs to be given to immigrants in order
Speaker 1: to exclude them from applying for relief, and the court
Speaker 1: ruled in favor of the immigrants there. So there's some
Speaker 1: of that, But there's also some of the litigations such
Speaker 1: as the Remain in Mexico litigation, where it's clear that
Speaker 1: the court is kind of sympathetic to enforcement related positions
Speaker 1: and so it becomes complicated. And there's also been some
Speaker 1: of the mandatory detension front, where the courts have been
Speaker 1: sympathetics to the enforcement positions, And so at the moment,
Speaker 1: I think there are probably easily bankable in any given
Speaker 1: immigration case for justices who are going to rule in
Speaker 1: the enforcement position. And so the question is on any
Speaker 1: of the questions because the three new justices seem to
Speaker 1: all have their own particular theories that sometimes makes them
Speaker 1: rule in a different way that they all don't necessarily
Speaker 1: meant with one another. So the question is, on a
Speaker 1: particular theory, could you get one of the three new
Speaker 1: justices to come on your side? And so that's gonna
Speaker 1: be the question in Plyler and in Arizona, is could
Speaker 1: you do that? But I do think it's fair to
Speaker 1: say that by the time this Biden administration finishes its
Speaker 1: first term, you probably will see decisions in both of
Speaker 1: those cases. Will Plyler be uppelled and will Arizona be uppelled?
Speaker 1: This was tested, but it was back in by proposition
Speaker 1: in California, which prohibited illegal immigrants from receiving public healthcare, education,
Speaker 1: or other social services. What happened there, but when proposition
Speaker 1: was passed, which required, among other things, for police and
Speaker 1: healthcare professionals and teachers to verify and report the immigration
Speaker 1: status of all individuals, including children. There was a district
Speaker 1: court lawsuits that was filed. That district court held that
Speaker 1: it violated the U. S Constitution and issued an injunction,
Speaker 1: and then there was a lot of settlement negotiations at
Speaker 1: the time, and the case actually ended in a settlement
Speaker 1: in where that would confirm that those child in the
Speaker 1: state of California could be deprived of their education or
Speaker 1: of healthcare because of their status. So that's how that is.
Speaker 1: Abbott also talked about how the costs are going to
Speaker 1: escalate when Title forty two is ended and a federal
Speaker 1: judge ordered a two week halt to the phasing out
Speaker 1: of Title forty two. Where does that stand well in
Speaker 1: the Title forty two cases, We're still now working our
Speaker 1: way towards that temporary restraining order being made into a
Speaker 1: preliminary injunction. It's likely that a preliminary injunction will be
Speaker 1: issued in either the Louisiana case or the Texas case.
Speaker 1: And then once that preliminary injunction goes into place, I mean,
Speaker 1: they haven't till make twenty three, so I think you'd
Speaker 1: probably see the preliminary injunction ruling on is most likely,
Speaker 1: or and then at that point, the federal government is
Speaker 1: going to have to appeal to the Fifth Circuits and
Speaker 1: or the Supreme Court after the Fifth Circuit does their ruling.
Speaker 1: But that's the likely route of what we're gonna see,
Speaker 1: and then we'll know. But I would look towards by
Speaker 1: one may to see where we're actually going to be
Speaker 1: headed on this Title forty two, whether it will be
Speaker 1: allowed to be refended or whether the courts will require
Speaker 1: that it remained in place. Do you think the Biden
Speaker 1: administration is secretly breathing a sigh of relief that this
Speaker 1: decision has been taken from them. I don't know, It's
Speaker 1: hard to say. I do think the more times that
Speaker 1: the Biden administration has to prepare for a post Title
Speaker 1: forty two worlds, the better it is for them in
Speaker 1: terms of building resources that I'm building the infrastructure for this.
Speaker 1: But at the same token, I do think they genuinely
Speaker 1: believe that at some point there will be a world
Speaker 1: without COVID and that at some point then you will
Speaker 1: have to administer the ending of Title forty two. And
Speaker 1: so the question is that now, is it a month
Speaker 1: from now, is it three months from now? And so
Speaker 1: while I think any extra time is good. I don't
Speaker 1: know that they want an indefinite say of this, and
Speaker 1: so you will see them push pretty aggressively to try
Speaker 1: to challenge these injunctions. Thanks so much, Leon. That's Leon Fresco,
Speaker 1: a partner at Hondon Knight and that's for this edition
Speaker 1: of The Bloomberg Law Show. Remember you can always get
Speaker 1: the latest legal news on our Bloomberg Law Podcast. You
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Speaker 1: at ten pm Wall Street Time. I'm June Grosso and
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