Immigrant Students’ Right to Education

(Hint: It’s the same as any other child’s right to education in America)

by Aimee Hwang

Today marks the 35th anniversary of Plyler v. Doe, the landmark Supreme Court case that ruled that the Equal Protection Clause of the U.S. Constitution protects immigrant children’s right to public education, and that states cannot deny students free public education because of their immigration status.

Plyler v. Doe was a Supreme Court case that MALDEF pursued against Texas schools seeking to demand tuition from undocumented children. The case does not have near the recognition of Brown v. Board of Education (1954), which declared the segregation of public schools based on race unconstitutional and overturned the “separate but equal” doctrine confirmed in Plessy v. Ferguson in 1896. But Plyler holds special significance for immigrants, and particularly for undocumented immigrant students.

Approximately 40 percent of all immigrants come to the U.S. from Asia; 1.6 million of those immigrants are undocumented. Thanks to Plyler, every immigrant child has certain rights when it comes to education. Although Plyler and Brown v. Board did not involve Asian American families, there is a long, mostly unheard of, history of Asian Americans’ struggle with segregation in U.S. schools.

In 1885 in San Francisco, 11 years before Plessy v. Ferguson, a Chinese American family was fighting for their children’s right to education in an all-white public school district. After their daughter was denied admission to a public school on the basis of her ethnicity, her parents, Joseph and Mary Tape, sued the San Francisco Board of Education. The school board’s policy explicitly prohibited the attendance of ethnically Chinese children in the city’s public schools. In Tape v. Hurley, a state court and the California Supreme Court found it unlawful to exclude a Chinese American student based on their ethnicity. But the victory was short-lived. The Board of Education established an Asian-only school called the “Oriental School,” thus maintaining the segregation; the courts had only ordered the school board to admit students into the district — not to desegregate the schools. In 1906, a rule was passed requiring children of Chinese, Korean, and Japanese descent to attend the “Oriental School,” a rule that stayed on the books (though not enforced) until San Francisco’s school board voted to officially remove the policy in January of 2017. These policies effectively took the doctrine of “separate but equal” that would later be upheld in Plessy v. Ferguson, and applied it to Asian Americans.

On November 10, 1906, Harper’s Weekly featured a cartoon about a school segregation order that sparked a diplomatic crisis between Japan and the United States. Image and text from by HarpWeek.

In 1927, such policies became United States law through a Supreme Court decision. In the Mississippi Delta region, Chinese American parents Jeu Gong Lum and Katherine Wong sued to get their children back into a white school after they were told to attend the black school in town though they had attended the white school the year before. In Gong Lum v. Rice, the Lum family argued that their daughter should not have been classified as “colored.” The Supreme Court unanimously ruled that the Mississippi schools were allowed to regulate themselves and define race as they pleased, leaving it within the scope of their power to define Asian Americans as “colored,” and hold that their daughter was of “the yellow race.” This case created a devastating precedent for segregation that wouldn’t be struck down until Brown v. Board nearly three decades later. It also reveals not only the flexibility of race, but the peculiar situation Asian Americans have often found themselves in negotiating their place in a system that presents “white” and “black” as two ends of a spectrum of race — the same system that has given rise to the concept of the “model minority” to drive a wedge between Asian Americans and other communities of color.

Thanks to the battles fought by American families, including Asian American families, there is no question that all children in the United States have the right to an education. Thanks to Plyler, that includes immigrant children — regardless of their immigration status — and regardless of hateful rhetoric that threatens, demonizes, and demeans immigrant communities.

Learn more about the rights of undocumented children and the children of undocumented parents.

Aimee Hwang is a rising third-year at the University of Chicago and an intern with Advancing Justice | AAJC through OCA — Asian Pacific American Advocates National Center.