Introduction

While researching my historical novel about the slave Dred Scott who sued for his freedom, I visited the restored row house of his St. Louis attorney Roswell Field. In 1852 within that shuttered home across the street from the Broadway Slave Pen, the Scott’s daughters played as equals with the Field children and with Susan, the ten year old granddaughter of Peter Blow who had been Dred’s first owner, but whose children were now committed to securing his freedom. In the upstairs study their parents met to plan the legal action they dreamed would finally make the inspired declaration that “all men are created equal” into a blessed reality. A decade later the Supreme Court would sadly rule in Scott v. Sandford that Dred was not a “man” in the meaning of the Declaration of Independence; and that the U.S. Constitution actually secured the right of  a white man to own a black man. Fortunately, a heroic figure in the mold of Roswell Field vowed he would not let that terrible ruling remain the law of the land, and Abraham Lincoln became president and made the Scott’s dream a reality for millions of Americans. After the Emancipation Proclamation and a brutal civil war, Congress and the American people completed what Dred Scott, Roswell Field and Lincoln had set in motion. The Fourteenth Amendment overturned the Dred Scott decision and forever secured the rights and blessings of citizenship to all children born in this country, and the equal protection of the laws to all people residing within its territorial jurisdiction.

As is often the case, education began at home and the Scott, Field and Blow children learned from the examples of their parents. Twenty years later Susan Blow would start the first kindergarten in America with the motto, “Let us Live for the Children.” Little Eugene Field would grow to become the beloved children’s poet, who authored such classics as Wynken, Blynken, and Nod and Little Boy Blue. Childhood dreams were a favorite subject. In The Dreams he wrote,

And 't was a dream of the busy world

Where valorous deeds are done;

Of battles fought in the cause of right, And of victories nobly won.

…

But ‘t was a dream of youthful hopes, And fast and free it ran,

And it told to a little sleeping child Of a boy become a man!1

Dreams have inspired the children of America to nobly fight for the cause of right, but it is educational opportunity which has given the dreamer the tools to fully realize those youthful hopes. It took other brave visionaries to continue what the Scotts, Fields and Blows began. One hundred years later in the neighboring state of Kansas, just 300 miles west of the Field house in St. Louis, seven year old Linda Brown walked twenty blocks from her home in East Topeka to her segregated all-black Monroe School. Wanting his girls to have better opportunities than he himself had, Linda’s father brought suit to allow her to attend a white school close to home. On May 17, 1954, Supreme Court Chief Justice Earl Warren ruled:

To separate [school children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone… We conclude that in the field of public education, the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal.2

From the worst decision in the history of the Supreme Court to one of the best, the Founders’ imperfect quest “to form a more perfect Union,” was continued by ordinary people seeking to first “establish justice” - often for their little ones. That quest took a sharp left turn at Topeka and headed 500 miles due south to Tyler, Texas. Thirty years ago, the High Court once again stepped in at the request of parents, and further clarified the constitutional right to equal access to learning for all those who live within the borders of this great nation. This time it was Jose and Lidia Lopez who wanted their children to have the education they could not get in Mexico. In 1975, Texas had passed laws that prohibited the use of state funds to educate the children of undocumented immigrants. The Court found that the Tyler Independent School District policy unconstitutionally excluded the Lopez children from the equal opportunity to receive a free public education.
In their 1982 Plyler v. Doe opinion, all of the justices agreed that “the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state.’” Writing for a 5-4 majority of the court, Justice Brennan further found that the federal government’s failure to adequately address the problem of illegal immigration had created an “underclass” of residents that “presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.” The court explained that while a public education is not a fundamental “right” guaranteed by the Constitution, it is “a most vital civic institution for the preservation of a democratic system of government, and as the primary vehicle for transmitting ‘the values on which our society rests.’ It therefore does have “a fundamental role in maintaining the fabric of our society.” Justice Brennan concluded that Texas did not justify its denial of “a discrete group of innocent children the free public education that it offers to other children residing within its borders” and therefore it violated the Equal Protection Clause of the Fourteenth Amendment.3

In so ruling, the court elucidated important principles that are highly relevant to the current debate over illegal immigration, particularly as it relates to children. “Illiteracy is an enduring disability,” Justice Brennan continued.

The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social, economic, intellectual, and psychological wellbeing of the individual, and the obstacle it poses to individual achievement, make it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause. What we said 28 years ago in Brown v. Board of Education, still holds true: 'Today, education is perhaps the most important function of state and local governments… It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.'4

He then concludes, “denying the children in question a proper education would likely contribute to ‘the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.”5

In-state Tuition

As the Lopez children and hundreds of thousands like them attended school, learned English, assimilated, played Little League and took the Scout Oath, they became Americans and dreamed of giving back to their adopted country. In 2007, on the 25th anniversary of Plyler v. Doe, Superintendent James Plyler renounced his earlier opposition to enrolling the children, and told the Dallas Morning News, "..."It would have been one of the worst things to happen in education — they'd cost more not being educated. Right after we let those youngsters in, I was pleased."

Of course, higher education would allow these youth to dream bigger, and yet the courts did not extend the Equal Protection Clause to post-secondary educational opportunities. Nevertheless, many in state and the federal government hearkened to the educators who stressed the incredible unrefined and untapped intellectual, creative and productive reservoir of these immigrant children growing into young adulthood. Some were surprised that it was Lone Star legislators who seemed to have learned most from the past, and in 2001 made Texas the first in the country to offer equality to undocumented teenagers whose parents brought them into the state as minors. If those kids stayed in school and out of trouble and graduated with their classmates from a Texas high school, they would have earned the equal opportunity to pay the lower in-state tuition to attend a Texas state college or university. I still remember as a first year Utah Attorney General being inspired and moved by the brave actions of Texas lawmakers. From personal experience, I understood the powerful motivational tool that in-state tuition could be to tens of thousands of young Utahns.

As an assistant Utah attorney general in the 90’s I volunteered to participate in a mentoring program. Once a week I went into fifth grade classrooms in an inner-city school in Salt Lake City to teach conflict resolution as a means of staying out of gangs. In Utah a highly disproportionate number of Latino youth join criminal gangs. I utilized my Spanish proficiency and love of Hispanic culture and values to encourage these enthusiastic youngsters to avoid gangs and drugs, stay in school and out of trouble and learn English. I promised them that in America, they could succeed regardless of their race, ethnic origins, socio-economic condition or even legal status. I’ll never forget the day when one fifth-grader boldly disagreed with me and declared that his older brother, who happened to be in a local gang, told him “white people” say they are all “illegals” and should be kicked out or put in jail and could not make it in Utah, so being a gangbanger was the only way. He was rightfully angry, but I also noticed the unmistakable hurt in his dark eyes. I tried to persuade him that this was not the case, but he demonstrated his intellect and his street education when he asked me, “then [why can’t I] go to college?” I could not answer that young man that day, but I vowed I would try to do something about it.

In March of 2002 I had the opportunity as the chief law enforcement officer of Utah to support our legislature in becoming the second state to authorize in-state tuition to unauthorized immigrant children of. HB144, sponsored by another courageous Republican lawmaker, David Ure, provided a wonderful boost to the morale of many good and talented youngsters including that young man from Rose Park Elementary School who came up to the Capitol as a high school senior to lobby on behalf of the proposed law. In his January 2002 State of the State address on the eve of the Salt Lake Winter Olympic Games, Governor Mike Leavitt held up a feather that had fallen from a dove during the Opening Ceremony of the 2000 Summer Olympics in Greece and spoke of his desire for Utah to “soar.” Two months later he signed HB144, the Exemption from Nonresident Tuition, into law and gave flight to the dreams of flocks of Utah immigrant children. By doing so, he also deprived the gang-bangers of one of their chief recruiting pitches.

Every year since that date, a bill has been introduced to repeal Utah’s in-state tuition law. Several years in a row, restrictionist outsiders came to Utah to testify that Utah’s law was preempted by federal law. I’m proud of my Education Division Chief Bill Evans who boldly and convincingly testified and shared my official opinion that our law was in fact constitutional. Section 505 of the federal Illegal Immigrant Reform and Immigrant Reconciliation Act of 1996 (IIRIRA) prohibits states from providing higher education benefits to undocumented immigrants based on residence unless they give the same benefit to citizens. Under Utah law, a U.S. citizen from Colorado or Idaho who attends high school in Utah and graduates equally gets to pay in-state tuition at a Utah college.

Utah educators, administrators, law enforcement professionals, immigrant and human rights activists and most importantly promising young students each year have defeated the aggressive and politically charged yearly opposition to our great equalizing law. Since 2001 twelve states have passed similar laws. Acting under its statutory authority, the Rhode Island Board of Governors for Higher Education voted unanimously to grant access to students regardless of immigration status to in-state tuition at the state’s public colleges and universities. I speak around the country on comprehensive immigration reform and continue to call on the other 37 states to act in the best interests of justice, public safety, educational opportunity and community values, and grant equal access to higher education. They are not barred by IIRIRA. Unfortunately, because Congress failed to do its part and provide an opportunity for undocumented college graduates to move legally into the workforce, I cannot argue the tremendous economic benefit in-state tuition laws would create.