The demise of Roe wouldn’t endanger school access, legal scholars say

“This is where they’re going folks,” tweeted Rep. Eric Swalwell (D-Calif.) about the GOP.

But legal scholars had mixed views on what the decision in Dobbs v. Jackson Women’s Health Organization — the abortion case currently before the court — could mean for Brown and for another landmark case, Plyler v. Doe, which bars schools from turning away undocumented students. Scholars expressed confidence that, even as the high court shows a willingness to revisit settled case law, both of those rulings stand on firm legal ground.

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On Monday, not long after Politico published the draft, Peter Brimelow, publisher of the White nationalist website Vdare, celebrated on Twitter, quoting the Politico piece describing Justice Samuel A. Alito Jr.’s draft opinion as “a full-throated, unflinching repudiation of the 1973 decision.”

“Next stop Brown vs. Board!” he wrote, referring to the landmark school integration case.

In the midst of these talks, Texas Gov. Greg Abbott also stirred speculation that he would challenge another decades-old Supreme Court case, Plyler v. Doe, which barred school districts from turning away students because of their immigration status.

“I think we will resurrect that case and challenge this issue again because the expenses are extraordinary, and the times are different than when Plyler v. Doe was issued,” Abbott said in an interview with conservative talk-show host Joe ‘Pags’ Pagliarulo on Wednesday. Pagliarulo, who called children learning English in public schools “a real burden on communities,” had asked “What can you do about that?”

Abbott’s office did not respond to a request for a clarification of his comments.

“Well, that’s ultra-MAGA right there,” said White House press secretary Jen Psaki, responding to a question about Abbott’s comments. “We’re talking about — just restate that — denying public education to kids, including immigrants to this country.”

The Mexican American Legal Defense and Educational Fund (MALDEF), which represented students in the Plyler case, assailed the governor for his comments, pointing out that Abbott got basic facts of the case wrong in the interview. He said that Texas took the federal government to court in Plyler, when, in fact, a group of students from Mexico brought Texas to court.

“Plyler is very well-established law,” said Thomas A. Saenz, MALDEF’s president and legal director, said in a statement, calling his words “harebrained, dog-whistle commentary.”

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The two school cases are among the most important in education civil rights law. Brown v. Board of Education ruled that separate school facilities for Black children were inherently unequal, and that denying them the opportunity to attend schools alongside White classmates was a violation of their civil rights.

In Plyler, a group of students from Mexico sued to challenge a statewide law that allowed districts to turn away undocumented students, as well as a policy in the Tyler Independent School District that sought to charge tuition to students who were not “legally admitted” to the United States. The high court ruled in favor of the students, finding that the rules violated the Equal Protection Clause of the Constitution.

Maura McInerney, the legal director of the Philadelphia-based Education Law Center, said the draft opinion emphasized that the Constitution did not explicitly protect the right to an abortion. That, she said, could mean any rights not spelled out in the Constitution could be challenged, including those with implication for education. The words “education,” “school” and “student” do not appear anywhere in the Constitution, but the high court has still issued rulings that protect a child’s access to school.

“Plyler is one of many decisions based on rights that are not explicit but rooted in the equal protection protections of the 14th Amendment,” McInerney said. “Brown v. Board of Education is another.”

Randi Weingarten, president of the American Federation for Teachers, said she also feared that overturning Roe could create an opening to challenge long-standing protections for students.

“Everything is up for grabs,” Weingarten said.

Other scholars pointed out the decisions in the school segregation cases were built on a much sturdier legal foundation, and doubted that the abortion case would have any impact. Both Plyler and Brown were cases in which justices ruled that segregation or exclusion violated the Equal Protection Clause, language in the Constitution that outlaws identity-based discrimination, said David Hinojosa of the Lawyers’ Committee for Civil Rights Under Law.

“The right to equal protection under the law is firmly rooted in our Constitution through the 14th Amendment,” Hinojosa said.

In Roe, justices used a different rationale — the substantive due process clause — to establish a woman’s right to an abortion. That rationale has proved far more vulnerable to challenges.

Derek Black, a law professor at University of South Carolina and an education law expert, agreed, saying the abortion cases would have little to no bearing on a challenge to Brown.

“There’s no basis. There’s no way to connect the dots between that draft and Brown — and even if you connect the dots, there’s no doctrinal connection,” Black said. “Brown isn’t going anywhere.”

But he said Plyler might prove more vulnerable, with some efforts in years past to challenge it.

A decade ago, Alabama passed a law that would have required districts to collect information on their students’ immigration status and report it to the state. The law prompted some families to pull their children from school, fearful they could be deported.

But a federal appeals court struck it down because, judges said, it violated Plyler.

Felicia Sonmez contributed to this report.