WEBVTT - The Next Immigration Battleground Is Schools 0:00:03.160 --> 0:00:07.960 This is Bloomberg Law with June Brasso from Bloomberg Radio. 0:00:09.160 --> 0:00:12.000 Forty years ago, the Supreme Court upheld the right of 0:00:12.119 --> 0:00:16.239 all students to a public school education regardless of their 0:00:16.320 --> 0:00:20.200 legal status in the case of Plyler Vidoux. Now, in 0:00:20.320 --> 0:00:24.040 light of the Supreme Court's apparent willingness to overturn precedent 0:00:24.120 --> 0:00:26.639 in the case of Roe View Wade, the Governor of 0:00:26.720 --> 0:00:31.280 Texas Greg Abbott says the Plyler decision is another longstanding 0:00:31.360 --> 0:00:35.919 precedent they'll challenge Water. Both of those two decisions are 0:00:35.920 --> 0:00:38.240 going to have to go in that the Arizona decision 0:00:38.240 --> 0:00:41.159 will have to go giving states full authority to enforce 0:00:41.600 --> 0:00:45.519 usmgression laws, or Plotter would to go, saying that the 0:00:45.520 --> 0:00:48.280 federal government is going to be responsible for paying the 0:00:48.360 --> 0:00:51.800 states for the cost of education that we're incurring because 0:00:51.800 --> 0:00:54.280 of the mass illegal comisation that we're seeing today compared 0:00:54.280 --> 0:00:56.400 to the way it was forty years ago. My guest 0:00:56.480 --> 0:00:59.639 is Leon Fresco, a partner at hollanden Knight, tell us 0:01:00.040 --> 0:01:03.560 about Pliler versus Dough, which has been on the books 0:01:03.600 --> 0:01:08.959 for forty years. Tiler versus, though, was a very close 0:01:09.040 --> 0:01:14.039 decision back in the eighties. It wasn't a slam dunk 0:01:14.080 --> 0:01:16.800 by any means. And the state of Texas had said, 0:01:17.840 --> 0:01:21.200 we have a problem where people who don't have status 0:01:21.560 --> 0:01:25.319 are coming into Texas and they're bringing their kids to school, 0:01:26.000 --> 0:01:29.039 and the fact that those kids are being educated in 0:01:29.160 --> 0:01:33.560 Texas is causing a resource constraint on us, and so 0:01:33.680 --> 0:01:35.240 we are going to make it that you have to 0:01:35.280 --> 0:01:38.880 be here legally in order to go into public schools 0:01:38.920 --> 0:01:42.759 in Texas. And so the people who sued had two 0:01:42.840 --> 0:01:46.360 basic theories for why it is that they would too. 0:01:46.480 --> 0:01:48.720 They said that, first of all, there should be a 0:01:48.720 --> 0:01:52.720 fundamental rights education for all persons of the United States. 0:01:52.800 --> 0:01:56.240 And second, they said that even if there isn't a 0:01:56.280 --> 0:01:59.800 fundamental rights to education, there should be an equal for 0:02:00.000 --> 0:02:04.240 election violation here because the children are in some form 0:02:04.400 --> 0:02:07.480 or fashion and protective class that the government should have 0:02:07.480 --> 0:02:12.000 scrutiny for. And what the court ultimately did and this 0:02:12.080 --> 0:02:14.640 was sort of a very difficult decision in terms of 0:02:14.840 --> 0:02:17.480 precedents that would be re examined, as they said, well, 0:02:17.480 --> 0:02:19.960 first of all, we're not going to declare a fundamental 0:02:20.080 --> 0:02:22.919 right to an education, because what ends up happening there 0:02:23.760 --> 0:02:26.440 is then you sort of engender. They didn't say this, 0:02:26.560 --> 0:02:29.000 but the idea was that would engender all these lawsuits 0:02:29.120 --> 0:02:32.280 then about funding and kids in certain places and not 0:02:32.400 --> 0:02:35.680 getting as much funding as kids in other places. So 0:02:35.720 --> 0:02:37.720 they didn't want to go down that rout and so 0:02:37.960 --> 0:02:42.440 instead they said, this is an equal protection violation. But 0:02:42.760 --> 0:02:45.760 there's no scrutiny that needs to be given. This has 0:02:45.800 --> 0:02:48.959 to go under the rational basis test, because the government 0:02:49.080 --> 0:02:53.240 is allowed to discriminate between people with immigration status and 0:02:53.280 --> 0:02:57.880 people without. But we can see no rational basis whatsoever 0:02:58.639 --> 0:03:03.760 for X polluting children who don't have legal status from 0:03:03.760 --> 0:03:07.200 the school. That's too cool. It doesn't solve anything about 0:03:07.200 --> 0:03:10.480 the parents motivations to come here, and so there's no 0:03:10.639 --> 0:03:14.840 tie to it. And so the question is given how 0:03:14.880 --> 0:03:18.160 close a case of decision that was back then, and 0:03:18.280 --> 0:03:23.160 given a at least idea now that's out there that 0:03:23.240 --> 0:03:26.760 the courts may start looking at past presidents. The state 0:03:26.800 --> 0:03:29.120 of Texas is saying, well, why don't we take a 0:03:29.360 --> 0:03:33.240 run at this issue, given that we believe we could 0:03:33.240 --> 0:03:36.680 find at least five, maybe six justices to say that 0:03:36.760 --> 0:03:40.920 there is a rational basis to say that kids without 0:03:41.000 --> 0:03:44.120 status shouldn't be going to public school as opposed to 0:03:44.200 --> 0:03:47.360 kids with status, and so that's really what it would 0:03:47.400 --> 0:03:50.520 tie down to, is would the Supreme Court be willing 0:03:50.560 --> 0:03:53.400 to say that that there is a rational basis for 0:03:53.440 --> 0:03:57.840 a law that actually discriminates between kids with status and 0:03:57.920 --> 0:04:00.920 kids without status, or would they make their decision that 0:04:01.000 --> 0:04:04.680 there is no such rational basis. Wh Texas have to 0:04:04.800 --> 0:04:11.800 show that the expenses for educating immigrant children have skyrocketed 0:04:11.960 --> 0:04:14.760 anything like that, correct, Texas isn't going to have to 0:04:14.800 --> 0:04:18.880 show economic harm that would provide their rational basis for 0:04:18.960 --> 0:04:23.719 doing this. And what Texas is saying now is if 0:04:23.760 --> 0:04:27.960 this was just immigrants coming in speaking English or Spanish, 0:04:28.360 --> 0:04:31.719 we'd be fine. But now we actually have a new dimension, 0:04:32.120 --> 0:04:34.640 which is immigrants are coming in who speak all sorts 0:04:34.640 --> 0:04:38.160 of languages that aren't just limited to English and Spanish. 0:04:38.560 --> 0:04:40.520 And when we need to put those kids in our 0:04:40.560 --> 0:04:44.000 public schools, we have to employ English as a second 0:04:44.080 --> 0:04:48.640 language teachers who will then move these children from their 0:04:48.720 --> 0:04:52.720 language into English. And all of that requires immense expenditures 0:04:52.760 --> 0:04:55.560 to get students to learn English from all of these 0:04:55.600 --> 0:04:59.200 different second languages. So that's what Governor Rabbitt is saying 0:04:59.200 --> 0:05:03.400 in Texas. And so if that lawsuit is filed, I 0:05:03.440 --> 0:05:07.520 think there will be a very interesting year or two 0:05:08.160 --> 0:05:11.440 where it's to analyze whether the court actually will reverse 0:05:11.440 --> 0:05:15.480 Plyler versus though, which would of course have some pretty 0:05:15.560 --> 0:05:19.159 devastating consequences for all of the kids who are in 0:05:19.279 --> 0:05:21.920 school right now who don't have satus. I mean, we 0:05:21.960 --> 0:05:25.520 hear all of the stories about the dreamers, and none 0:05:25.520 --> 0:05:28.599 of those dreamers who have all these oppressive stories would 0:05:28.640 --> 0:05:30.800 have been possible have they not been permitted to go 0:05:30.880 --> 0:05:34.200 into the public schools in the first place. And so 0:05:34.560 --> 0:05:38.880 this becomes quite a complicated story. What Abbot said Texas 0:05:39.000 --> 0:05:43.400 wants is that the federal government should foot the bill. Well, 0:05:43.400 --> 0:05:48.400 that's certainly one way to eliminate the rational basis from Texas, 0:05:48.440 --> 0:05:50.960 which is that if the federal government were to fund 0:05:51.520 --> 0:05:56.240 all of the additional costs for educating children without status 0:05:56.279 --> 0:05:59.280 in the United States, then State of Texas would be 0:05:59.680 --> 0:06:02.240 toward of reliefs of its standings to be able to 0:06:02.279 --> 0:06:05.360 see in that regard. So, both from a rational and 0:06:05.400 --> 0:06:08.960 a judicial perspective, it does seem like the right argument 0:06:09.080 --> 0:06:11.560 for the governor effects Us to be making, But it 0:06:11.640 --> 0:06:14.120 remains to be seen whether any such funding would be 0:06:14.120 --> 0:06:16.919 forthcoming given the sort of splits that we have in 0:06:16.960 --> 0:06:19.680 the Congress right now, it'd be very unlikely that you 0:06:19.680 --> 0:06:22.600 would see a whole new batch of government funding to 0:06:22.720 --> 0:06:26.320 sort of make up for the gaps that are caused 0:06:26.360 --> 0:06:29.520 by educating people without status. You do see this in 0:06:29.560 --> 0:06:33.120 the healthcare field. There actually are healthcare streams of funding 0:06:33.560 --> 0:06:37.040 that are there for what it's called emergency medical services. 0:06:37.279 --> 0:06:41.680 And even though that's not actually targeted towards people without status, 0:06:41.680 --> 0:06:44.760 that's the lion chair of the people appearing at a 0:06:44.760 --> 0:06:48.520 lot of these emergency rooms now who don't have any 0:06:48.600 --> 0:06:51.680 kind of healthcare benefits of any kind, And there is 0:06:51.720 --> 0:06:56.600 this sort of emergency disparate share Medicare Medicaid funding that 0:06:56.640 --> 0:06:59.240 does go to the states for this purpose, and so 0:06:59.320 --> 0:07:01.840 would be interesting to see if the federal government would 0:07:01.839 --> 0:07:06.320 consider something like that for education. But nevertheless, it's something 0:07:06.360 --> 0:07:08.880 that remains to be seen whether that would be able 0:07:08.880 --> 0:07:12.120 to happen in time to release Texas of spending. If 0:07:12.200 --> 0:07:15.320 Texas wins this, the federal government will have to come 0:07:15.320 --> 0:07:18.120 in probably and pick up the tab. Well, I mean, 0:07:18.200 --> 0:07:21.600 if they win it, then it's unclear how that could happen, 0:07:21.680 --> 0:07:24.720 because if they win a case that that they don't 0:07:24.760 --> 0:07:28.480 have to educate students without status. Then the question is 0:07:28.920 --> 0:07:32.119 does that second issue of the federal government being able 0:07:32.160 --> 0:07:35.960 to relieve the states of that duty actually get decided 0:07:36.400 --> 0:07:39.440 and litigated there. My fear would be that you would 0:07:39.560 --> 0:07:42.840 even get to that second issue of whether the federal 0:07:42.880 --> 0:07:45.960 government could actually alleviate this by paying. I mean, it 0:07:46.000 --> 0:07:49.320 would be logical, but it's unclear that we get there, 0:07:49.400 --> 0:07:53.080 because it would just be decided like Pliler was, is 0:07:53.120 --> 0:07:57.320 there a rational basis to discriminate between students with status 0:07:57.320 --> 0:08:01.000 and students without status? So I'm one ding how Texis 0:08:01.000 --> 0:08:03.840 would go about this because it's not like the Biden 0:08:03.840 --> 0:08:06.520 administration is telling them to do this. So they can't 0:08:06.520 --> 0:08:09.560 sue the Biden administration. This is a Supreme Court decision. 0:08:09.600 --> 0:08:12.160 They can't sue the Supreme Court. How would they even 0:08:12.200 --> 0:08:14.880 get this before the court? Well, what has to happen 0:08:15.040 --> 0:08:19.000 is the Texas state legislature would actually have to pass 0:08:19.080 --> 0:08:21.600 the law that would again they would be at the 0:08:21.640 --> 0:08:25.080 beginning and unconstitutional laws, but they have to pass on 0:08:25.280 --> 0:08:31.400 unconstitutional laws that banned undocumented students from being able to 0:08:31.440 --> 0:08:35.120 go to school, or maybe would do something like some 0:08:35.240 --> 0:08:37.760 of the laws they've been doing with abortion, where it's 0:08:37.880 --> 0:08:40.440 a decent of that, so it's not the exact same thing. So, 0:08:40.559 --> 0:08:44.679 for instance, they might pass the law that charges undocumented 0:08:44.720 --> 0:08:47.760 students full tuition in order to go to school, so 0:08:47.800 --> 0:08:49.840 it doesn't ban them, but says, if if you want 0:08:49.840 --> 0:08:52.040 to come, you have to pay full tuition, whatever that 0:08:52.120 --> 0:08:55.720 might be. And so then that would create a situation 0:08:55.800 --> 0:08:59.400 where if it's not challenged, the kids can't go to school. 0:09:00.120 --> 0:09:02.480 If it's challenged, then it would go all the way 0:09:02.480 --> 0:09:05.840 to the Supreme Court to decide whether that law can prevail. 0:09:05.920 --> 0:09:08.240 Or Now this is years in the making because the 0:09:08.240 --> 0:09:11.720 Texas legislature isn't even in session right now, right it 0:09:11.720 --> 0:09:13.839 would it would not be something unless there was a 0:09:13.880 --> 0:09:19.000 special session dictated, or unless some other states tried to 0:09:19.040 --> 0:09:21.800 do the same thing. It doesn't seem to be something 0:09:22.120 --> 0:09:24.800 that we would get a decision on any time soon. 0:09:25.280 --> 0:09:28.520 But of course, if any state did this, or if 0:09:28.520 --> 0:09:31.040 Texas were to do a special session and then they 0:09:31.040 --> 0:09:34.920 would vile an injunction, and then that injunction would be denied, 0:09:35.640 --> 0:09:38.800 you could pretty quickly start getting working that way up 0:09:38.840 --> 0:09:42.840 through the injunctive process. And so while now it remains 0:09:42.840 --> 0:09:46.000 in the theoretical it's an important decision to be on 0:09:46.040 --> 0:09:49.200 the lookout for, as is the one in Arizona versus 0:09:49.240 --> 0:09:52.160 the United States. That's the second decision that people have 0:09:52.240 --> 0:09:54.000 been saying, well, at the Court, it's going to start 0:09:54.040 --> 0:09:58.440 reversing prior decisions in the immigration realm. There's Splidler versus though, 0:09:58.480 --> 0:10:01.839 but also there's Arizona, Una versus the United States. Tell 0:10:01.920 --> 0:10:06.400 us just briefly what Arizona versus United States did sure 0:10:06.440 --> 0:10:09.360 in Arizona versus United States, we remember this in the 0:10:09.360 --> 0:10:13.240 Obama administration that Arizona said, we don't think the Obama 0:10:13.240 --> 0:10:17.600 administration is sufficiently enforcing the immigration law, so we are 0:10:17.640 --> 0:10:21.360 going to start arresting and detaining people who don't have 0:10:21.440 --> 0:10:25.000 dimmigration statics. And so the federal government challenge that and 0:10:25.040 --> 0:10:28.280 said they can't enforce immigration law unless they're doing it 0:10:28.440 --> 0:10:31.280 with the consent of the federal government and in conjunction 0:10:31.320 --> 0:10:33.880 with them, not just on their own. And the Court 0:10:34.000 --> 0:10:37.959 at that time agreed, and Justice Roberts agreed. So that's 0:10:37.960 --> 0:10:39.800 an important vote. That means there would be at least 0:10:39.840 --> 0:10:44.640 four votes for maintaining Arizona. But there are justices who 0:10:44.640 --> 0:10:49.160 were there at the time Alito and Thomas, who supported 0:10:49.200 --> 0:10:52.000 the position of Arizona, and now there's three justices that 0:10:52.000 --> 0:10:55.720 are unaccounted for Coney, Barrett, Kavanaugh, Gorsage. And so the 0:10:55.800 --> 0:11:00.079 idea is, could they provide the five judge majority to 0:11:00.160 --> 0:11:03.120 overturn that Arizona case and allow states like Texas and 0:11:03.160 --> 0:11:07.040 Arizona to start arresting and detaining for who knows how 0:11:07.080 --> 0:11:10.679 long people without status and their states. Has the Court 0:11:10.840 --> 0:11:16.520 changed enough since Flyler on immigration decisions? I mean, do 0:11:16.559 --> 0:11:19.800 we know how these new justices are going to rule 0:11:19.880 --> 0:11:24.480 on immigration decisions? There have been some decisions so far 0:11:25.200 --> 0:11:29.280 that have been very helpful for the immigrants rights community. 0:11:29.280 --> 0:11:32.319 There was a decision called the Javes which dealt with 0:11:32.600 --> 0:11:35.280 notice that needs to be given to immigrants in order 0:11:35.360 --> 0:11:38.679 to exclude them from applying for relief, and the court 0:11:38.800 --> 0:11:41.800 ruled in favor of the immigrants there. So there's some 0:11:41.880 --> 0:11:44.440 of that, But there's also some of the litigations such 0:11:44.480 --> 0:11:49.240 as the Remain in Mexico litigation, where it's clear that 0:11:49.440 --> 0:11:53.840 the court is kind of sympathetic to enforcement related positions 0:11:53.920 --> 0:11:57.200 and so it becomes complicated. And there's also been some 0:11:57.280 --> 0:12:00.240 of the mandatory detension front, where the courts have been 0:12:00.280 --> 0:12:03.920 sympathetics to the enforcement positions, And so at the moment, 0:12:04.440 --> 0:12:09.040 I think there are probably easily bankable in any given 0:12:09.040 --> 0:12:12.200 immigration case for justices who are going to rule in 0:12:12.240 --> 0:12:15.679 the enforcement position. And so the question is on any 0:12:15.760 --> 0:12:19.680 of the questions because the three new justices seem to 0:12:19.679 --> 0:12:23.880 all have their own particular theories that sometimes makes them 0:12:23.920 --> 0:12:26.719 rule in a different way that they all don't necessarily 0:12:26.760 --> 0:12:29.439 meant with one another. So the question is, on a 0:12:29.600 --> 0:12:33.160 particular theory, could you get one of the three new 0:12:33.240 --> 0:12:36.680 justices to come on your side? And so that's gonna 0:12:36.679 --> 0:12:39.959 be the question in Plyler and in Arizona, is could 0:12:39.960 --> 0:12:42.800 you do that? But I do think it's fair to 0:12:42.840 --> 0:12:46.959 say that by the time this Biden administration finishes its 0:12:47.000 --> 0:12:50.080 first term, you probably will see decisions in both of 0:12:50.080 --> 0:12:53.640 those cases. Will Plyler be uppelled and will Arizona be uppelled? 0:12:54.080 --> 0:12:58.600 This was tested, but it was back in by proposition 0:12:59.600 --> 0:13:05.480 in California, which prohibited illegal immigrants from receiving public healthcare, education, 0:13:05.600 --> 0:13:09.960 or other social services. What happened there, but when proposition 0:13:11.000 --> 0:13:14.319 was passed, which required, among other things, for police and 0:13:14.440 --> 0:13:18.319 healthcare professionals and teachers to verify and report the immigration 0:13:18.400 --> 0:13:22.520 status of all individuals, including children. There was a district 0:13:22.520 --> 0:13:26.280 court lawsuits that was filed. That district court held that 0:13:26.400 --> 0:13:29.959 it violated the U. S Constitution and issued an injunction, 0:13:30.040 --> 0:13:33.040 and then there was a lot of settlement negotiations at 0:13:33.040 --> 0:13:36.000 the time, and the case actually ended in a settlement 0:13:36.080 --> 0:13:41.040 in where that would confirm that those child in the 0:13:41.040 --> 0:13:44.480 state of California could be deprived of their education or 0:13:44.480 --> 0:13:47.640 of healthcare because of their status. So that's how that is. 0:13:48.640 --> 0:13:51.960 Abbott also talked about how the costs are going to 0:13:52.280 --> 0:13:57.160 escalate when Title forty two is ended and a federal 0:13:57.240 --> 0:14:01.200 judge ordered a two week halt to the phasing out 0:14:01.320 --> 0:14:05.800 of Title forty two. Where does that stand well in 0:14:06.080 --> 0:14:09.000 the Title forty two cases, We're still now working our 0:14:09.040 --> 0:14:12.840 way towards that temporary restraining order being made into a 0:14:12.880 --> 0:14:17.280 preliminary injunction. It's likely that a preliminary injunction will be 0:14:17.320 --> 0:14:21.600 issued in either the Louisiana case or the Texas case. 0:14:22.160 --> 0:14:25.720 And then once that preliminary injunction goes into place, I mean, 0:14:25.960 --> 0:14:28.040 they haven't till make twenty three, so I think you'd 0:14:28.040 --> 0:14:33.680 probably see the preliminary injunction ruling on is most likely, 0:14:33.760 --> 0:14:37.560 or and then at that point, the federal government is 0:14:37.600 --> 0:14:40.040 going to have to appeal to the Fifth Circuits and 0:14:40.520 --> 0:14:43.920 or the Supreme Court after the Fifth Circuit does their ruling. 0:14:44.440 --> 0:14:47.320 But that's the likely route of what we're gonna see, 0:14:47.760 --> 0:14:51.240 and then we'll know. But I would look towards by 0:14:51.280 --> 0:14:54.240 one may to see where we're actually going to be 0:14:54.320 --> 0:14:57.200 headed on this Title forty two, whether it will be 0:14:57.240 --> 0:15:00.640 allowed to be refended or whether the courts will require 0:15:00.680 --> 0:15:03.240 that it remained in place. Do you think the Biden 0:15:03.240 --> 0:15:07.680 administration is secretly breathing a sigh of relief that this 0:15:07.760 --> 0:15:10.680 decision has been taken from them. I don't know, It's 0:15:10.720 --> 0:15:13.680 hard to say. I do think the more times that 0:15:13.680 --> 0:15:17.480 the Biden administration has to prepare for a post Title 0:15:17.560 --> 0:15:20.040 forty two worlds, the better it is for them in 0:15:20.160 --> 0:15:23.680 terms of building resources that I'm building the infrastructure for this. 0:15:24.320 --> 0:15:27.200 But at the same token, I do think they genuinely 0:15:27.280 --> 0:15:29.920 believe that at some point there will be a world 0:15:30.040 --> 0:15:32.920 without COVID and that at some point then you will 0:15:32.960 --> 0:15:37.160 have to administer the ending of Title forty two. And 0:15:37.240 --> 0:15:39.360 so the question is that now, is it a month 0:15:39.400 --> 0:15:42.760 from now, is it three months from now? And so 0:15:43.280 --> 0:15:46.640 while I think any extra time is good. I don't 0:15:46.640 --> 0:15:50.080 know that they want an indefinite say of this, and 0:15:50.120 --> 0:15:53.280 so you will see them push pretty aggressively to try 0:15:53.280 --> 0:15:57.560 to challenge these injunctions. Thanks so much, Leon. That's Leon Fresco, 0:15:57.680 --> 0:16:00.560 a partner at Hondon Knight and that's for this edition 0:16:00.560 --> 0:16:03.240 of The Bloomberg Law Show. Remember you can always get 0:16:03.280 --> 0:16:06.400 the latest legal news on our Bloomberg Law Podcast. You 0:16:06.440 --> 0:16:10.520 can find them on Apple Podcasts, Spotify, and at www 0:16:10.680 --> 0:16:14.920 dot Bloomberg dot com slash podcast Slash Law, and remember 0:16:14.960 --> 0:16:17.640 to tune into The Bloomberg Law Show every week night 0:16:17.720 --> 0:16:21.200 at ten pm Wall Street Time. I'm June Grosso and 0:16:21.280 --> 0:16:22.720 you're listening to Bloomberg