Originally published by NY Times

Before there were the Dreamers, there were undocumented children occupying seats in the public school classrooms of America. And before there was Kris Kobach, or Jeff Sessions, or Donald Trump, or other exploiters of the nativist strain that runs just below the surface of the national psyche, there was Texas.

In 1975, Texas passed a law authorizing local school districts to deny enrollment to children not legally admitted to the United States. A district that chose to retain such children would forfeit a proportionate share of its state funding, a bargain none was likely to accept.

Lawsuits followed, and on June 15, 1982, by a vote of 5 to 4, the Supreme Court ruled the law unconstitutional. By denying these children a basic education, Justice William J. Brennan Jr. wrote for the majority, 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. Chief Justice Warren E. Burger wrote for the four dissenters.

The case was Plyler v. Doe. Thirty-five years is a long time, and no one on today’s court was among those who struggled with the case for more than six months after the December 1981 argument. For politicians whose priority is kicking noncitizens out of the country, the decision – which acknowledged that the children might be deportable but assumed that many would not be deported – is beside the point. After all, the prospect that the current motivated and patriotic generation of young immigrants might contribute in even the smallest way to the country’s future is irrelevant to Trump supporters who, led by Attorney General Sessions, cheered the termination of President Obama’s Deferred Action for Childhood Arrivals program, which has enabled more than 800,000 of these young people to stay in school and begin careers.

Plyler v. Doe may be irrelevant in a strictly legal sense, but there are strong reasons to resurrect its memory and ponder it today. At the simplest level, it’s clear that during the current anti-immigrant spasm, at least several states would have thrown undocumented children out of school but for Plyler. For example, Alabama’s H.B. 56, enacted in 2011, requires school districts to collect data on the citizenship status of each child; while the law couldn’t go further, it has driven a number of undocumented children out of school and their families out of the state.

The case reached the Supreme Court during President Ronald Reagan’s first year in office. It presented the new administration with an acute dilemma and leaves us with a fascinating back story, one with obvious resonance with the Trump administration’s vigorous effort to undo the Obama administration’s legal legacy.

The appeal was brought by Texas, which had lost in the lower courts. Under President Jimmy Carter, the Justice Department had entered the lawsuit on behalf of the plaintiffs and would undoubtedly have defended their victory at the Supreme Court level. But the broad ruling by the United States Court of Appeals for the Fifth Circuit that the Texas law violated the 14th Amendment’s guarantee of equal protection was anathema to the activist lawyers of the Reagan administration, who saw the Supreme Court as a potential ally and were shaping a litigation strategy accordingly.

They ran into an unexpected obstacle: Rex E. Lee, the administration’s solicitor general, in charge of all federal government representation before the Supreme Court. Mr. Lee, whose son Mike now represents Utah in the Senate, was a deeply conservative and deeply principled lawyer, a former law clerk to Justice Byron R. White. He saw an important part of his job as cultivating the long-term relationship between the court and the executive branch, particularly by maintaining the justices’ respect for the office of solicitor general. That goal militated against simply repudiating the government’s previous position in this high-profile case. So he filed a rather tortured brief that, at the bottom line, took no position on whether the Fifth Circuit’s decision should be affirmed or reversed.

Solicitor General Lee’s lack of team spirit was noticed in the office of Attorney General William French Smith. When the Supreme Court affirmed the appeals court and ruled for the plaintiffs, two young special assistants in Mr. Smith’s office analyzed the opinion for him and delivered a memo. This is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have, the two lawyers wrote. They added: It is our belief that a brief filed by the Solicitor General’s Office supporting the state of Texas – and the values of judicial restraint – could well have moved Justice Powell into the Chief Justice’s camp and altered the outcome of the case.

One writer of that memo was Carolyn B. Kuhl, who went on to a career as a Superior Court judge in California. The other was John G. Roberts Jr. The memo came to light when he was nominated to be chief justice of the United States.

While the memo provides an insight into how the future chief justice saw the world, its premise was incorrect. No brief, no matter how on-message, would have moved Justice Lewis F. Powell Jr. from the immigrant children’s side of the case to the state’s. Justice Powell’s papers, as well as other justices’ papers that have become available, make clear that he was on the plaintiffs’ side from the very beginning, even though it wasn’t clear for months whether he would actually join an opinion by the much more liberal Justice Brennan or whether he would file a separate opinion to reach the same result in a more constrained way.

And that’s the final reason that, in this mean season, Plyler v. Doe deserves to be remembered. The justices who worked out the majority opinion displayed a spirit of compromise and sense of common purpose that we today see all too infrequently across our government institutions.

Justice Powell did join Justice Brennan’s opinion. It was a surprise to nearly everyone, not only to John Roberts. Lewis Powell, who was named by President Richard Nixon in 1971 and who retired in 1987, was the swing justice of his day. Born in 1907 and raised in Richmond, Va., he was a Southern gentleman with a steely intelligence and a pragmatic streak. Before joining the Supreme Court at age 64, he had never been a judge, but he had been many other things: head of a big corporate law firm, president of the American Bar Association, chairman of the Richmond and the Virginia school boards.

One reason his vote with Justice Brennan was such a surprise was that eight years earlier, he had written the opinion for a conservative majority that rejected the argument that school finance systems that relied on property taxes and that thus favored wealthy districts over poor ones violated the Constitution. That decision, San Antonio Independent School District v. Rodriguez, was a devastating, even fatal, blow to an evolving school of liberal jurisprudence that saw education as a fundamental right and poverty as a status deserving of special constitutional protection.

Justice Brennan was a strong supporter of both of those ideas and initially saw the Plyler case as a way of undoing some of the damage, at least by using the sympathetic facts of the case to declare that public education was a fundamental right that couldn’t be withheld without some surpassingly persuasive reason. As the senior justice in the majority, he assigned the case to himself. In less than two months, he circulated a draft opinion that embodied his liberal vision: undocumented immigrants as a suspect category deserving of special protection, and education as a fundamental right. Justice Powell’s reaction was tempered, to say the least. The draft sweeps rather broadly and leaves me a little uneasy, he told Justice Brennan. His tone in a three-page letter was civil but his message was clear: I can’t sign this.

In response, Justice Brennan pulled back; Justice Powell responded; Justice Brennan pulled back some more. Correspondence between the two, shared with other members of the majority, extended for weeks. But in the end they worked it out, and that’s the point. Both were highly motivated. Justice Powell’s motivation came from his view that society itself would be the loser if the Texas law was upheld. Indeed, he wrote in a concurring opinion, the interests relied upon by the state would seem to be insubstantial in view of the consequences to the state itself of wholly uneducated persons living indefinitely within its borders. He added, 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 14th Amendment.

Justice Brennan, for his part, was motivated by the desire to have five signatures on his opinion, making it fully a decision of the court and not of a plurality joined by a wavering Lewis Powell. If he had to wait for another day to achieve his doctrinal agenda, so be it.

That day, of course, never came. Looking at today’s Supreme Court as another first Monday in October approaches – No. 13 for the Roberts court – it’s hard to imagine that it ever will. I, for one, have no crystal ball. But I do have a memory of Plyler v. Doe, and it was my purpose in this column to share it.

Read more: www.nytimes.com/2017/09/14/opinion/supreme-court-immigration.html?mcubz=0

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