This is Bloomberg Law with June Brasso from Bloomberg Radio. Forty years ago, the Supreme Court upheld the right of all students to a public school education regardless of their legal status in the case of Plyler Vidoux. Now, in light of the Supreme Court's apparent willingness to overturn precedent in the case of Roe View Wade, the Governor of Texas Greg Abbott says the Plyler decision is another longstanding
precedent they'll challenge Water. Both of those two decisions are going to have to go in that the Arizona decision will have to go giving states full authority to enforce usmgression laws, or Plotter would to go, saying that the federal government is going to be responsible for paying the states for the cost of education that we're incurring because of the mass illegal comisation that we're seeing today compared
to the way it was forty years ago. My guest is Leon Fresco, a partner at hollanden Knight, tell us about Pliler versus Dough, which has been on the books for forty years. Tiler versus, though, was a very close decision back in the eighties. It wasn't a slam dunk
by any means. And the state of Texas had said, we have a problem where people who don't have status are coming into Texas and they're bringing their kids to school, and the fact that those kids are being educated in Texas is causing a resource constraint on us, and so we are going to make it that you have to be here legally in order to go into public schools in Texas. And so the people who sued had two basic theories for why it is that they would too.
They said that, first of all, there should be a fundamental rights education for all persons of the United States. And second, they said that even if there isn't a fundamental rights to education, there should be an equal for election violation here because the children are in some form or fashion and protective class that the government should have
scrutiny for. And what the court ultimately did and this was sort of a very difficult decision in terms of precedents that would be re examined, as they said, well, first of all, we're not going to declare a fundamental right to an education, because what ends up happening there is then you sort of engender. They didn't say this, but the idea was that would engender all these lawsuits then about funding and kids in certain places and not
getting as much funding as kids in other places. So they didn't want to go down that rout and so instead they said, this is an equal protection violation. But there's no scrutiny that needs to be given. This has to go under the rational basis test, because the government is allowed to discriminate between people with immigration status and people without. But we can see no rational basis whatsoever for X polluting children who don't have legal status from
the school. That's too cool. It doesn't solve anything about the parents motivations to come here, and so there's no tie to it. And so the question is given how close a case of decision that was back then, and given a at least idea now that's out there that
the courts may start looking at past presidents. The state of Texas is saying, well, why don't we take a run at this issue, given that we believe we could find at least five, maybe six justices to say that there is a rational basis to say that kids without status shouldn't be going to public school as opposed to kids with status, and so that's really what it would tie down to, is would the Supreme Court be willing to say that that there is a rational basis for
a law that actually discriminates between kids with status and kids without status, or would they make their decision that there is no such rational basis. Wh Texas have to show that the expenses for educating immigrant children have skyrocketed anything like that, correct, Texas isn't going to have to show economic harm that would provide their rational basis for doing this. And what Texas is saying now is if this was just immigrants coming in speaking English or Spanish,
we'd be fine. But now we actually have a new dimension, which is immigrants are coming in who speak all sorts of languages that aren't just limited to English and Spanish. And when we need to put those kids in our public schools, we have to employ English as a second language teachers who will then move these children from their language into English. And all of that requires immense expenditures to get students to learn English from all of these
different second languages. So that's what Governor Rabbitt is saying in Texas. And so if that lawsuit is filed, I think there will be a very interesting year or two where it's to analyze whether the court actually will reverse Plyler versus though, which would of course have some pretty devastating consequences for all of the kids who are in
school right now who don't have satus. I mean, we hear all of the stories about the dreamers, and none of those dreamers who have all these oppressive stories would have been possible have they not been permitted to go into the public schools in the first place. And so this becomes quite a complicated story. What Abbot said Texas
wants is that the federal government should foot the bill. Well, that's certainly one way to eliminate the rational basis from Texas, which is that if the federal government were to fund all of the additional costs for educating children without status in the United States, then State of Texas would be toward of reliefs of its standings to be able to
see in that regard. So, both from a rational and a judicial perspective, it does seem like the right argument for the governor effects Us to be making, But it remains to be seen whether any such funding would be forthcoming given the sort of splits that we have in the Congress right now, it'd be very unlikely that you would see a whole new batch of government funding to sort of make up for the gaps that are caused by educating people without status. You do see this in
the healthcare field. There actually are healthcare streams of funding that are there for what it's called emergency medical services.
And even though that's not actually targeted towards people without status, that's the lion chair of the people appearing at a lot of these emergency rooms now who don't have any kind of healthcare benefits of any kind, And there is this sort of emergency disparate share Medicare Medicaid funding that does go to the states for this purpose, and so would be interesting to see if the federal government would
consider something like that for education. But nevertheless, it's something that remains to be seen whether that would be able to happen in time to release Texas of spending. If Texas wins this, the federal government will have to come in probably and pick up the tab. Well, I mean, if they win it, then it's unclear how that could happen, because if they win a case that that they don't
have to educate students without status. Then the question is does that second issue of the federal government being able to relieve the states of that duty actually get decided and litigated there. My fear would be that you would even get to that second issue of whether the federal
government could actually alleviate this by paying. I mean, it would be logical, but it's unclear that we get there, because it would just be decided like Pliler was, is there a rational basis to discriminate between students with status and students without status? So I'm one ding how Texis would go about this because it's not like the Biden administration is telling them to do this. So they can't sue the Biden administration. This is a Supreme Court decision.
They can't sue the Supreme Court. How would they even get this before the court? Well, what has to happen is the Texas state legislature would actually have to pass the law that would again they would be at the beginning and unconstitutional laws, but they have to pass on unconstitutional laws that banned undocumented students from being able to go to school, or maybe would do something like some of the laws they've been doing with abortion, where it's
a decent of that, so it's not the exact same thing. So, for instance, they might pass the law that charges undocumented students full tuition in order to go to school, so it doesn't ban them, but says, if if you want to come, you have to pay full tuition, whatever that might be. And so then that would create a situation where if it's not challenged, the kids can't go to school. If it's challenged, then it would go all the way to the Supreme Court to decide whether that law can prevail.
Or Now this is years in the making because the Texas legislature isn't even in session right now, right it would it would not be something unless there was a special session dictated, or unless some other states tried to do the same thing. It doesn't seem to be something that we would get a decision on any time soon.
But of course, if any state did this, or if Texas were to do a special session and then they would vile an injunction, and then that injunction would be denied, you could pretty quickly start getting working that way up through the injunctive process. And so while now it remains in the theoretical it's an important decision to be on the lookout for, as is the one in Arizona versus the United States. That's the second decision that people have been saying, well, at the Court, it's going to start
reversing prior decisions in the immigration realm. There's Splidler versus though, but also there's Arizona, Una versus the United States. Tell us just briefly what Arizona versus United States did sure in Arizona versus United States, we remember this in the Obama administration that Arizona said, we don't think the Obama administration is sufficiently enforcing the immigration law, so we are going to start arresting and detaining people who don't have
dimmigration statics. And so the federal government challenge that and said they can't enforce immigration law unless they're doing it with the consent of the federal government and in conjunction with them, not just on their own. And the Court at that time agreed, and Justice Roberts agreed. So that's an important vote. That means there would be at least
four votes for maintaining Arizona. But there are justices who were there at the time Alito and Thomas, who supported the position of Arizona, and now there's three justices that are unaccounted for Coney, Barrett, Kavanaugh, Gorsage. And so the idea is, could they provide the five judge majority to overturn that Arizona case and allow states like Texas and Arizona to start arresting and detaining for who knows how long people without status and their states. Has the Court
changed enough since Flyler on immigration decisions? I mean, do we know how these new justices are going to rule on immigration decisions? There have been some decisions so far that have been very helpful for the immigrants rights community. There was a decision called the Javes which dealt with notice that needs to be given to immigrants in order to exclude them from applying for relief, and the court
ruled in favor of the immigrants there. So there's some of that, But there's also some of the litigations such as the Remain in Mexico litigation, where it's clear that the court is kind of sympathetic to enforcement related positions
and so it becomes complicated. And there's also been some of the mandatory detension front, where the courts have been sympathetics to the enforcement positions, And so at the moment, I think there are probably easily bankable in any given immigration case for justices who are going to rule in
the enforcement position. And so the question is on any of the questions because the three new justices seem to all have their own particular theories that sometimes makes them rule in a different way that they all don't necessarily meant with one another. So the question is, on a particular theory, could you get one of the three new justices to come on your side? And so that's gonna be the question in Plyler and in Arizona, is could
you do that? But I do think it's fair to say that by the time this Biden administration finishes its first term, you probably will see decisions in both of those cases. Will Plyler be uppelled and will Arizona be uppelled? This was tested, but it was back in by proposition in California, which prohibited illegal immigrants from receiving public healthcare, education,
or other social services. What happened there, but when proposition was passed, which required, among other things, for police and healthcare professionals and teachers to verify and report the immigration status of all individuals, including children. There was a district
court lawsuits that was filed. That district court held that it violated the U. S Constitution and issued an injunction, and then there was a lot of settlement negotiations at the time, and the case actually ended in a settlement in where that would confirm that those child in the state of California could be deprived of their education or of healthcare because of their status. So that's how that is.
Abbott also talked about how the costs are going to escalate when Title forty two is ended and a federal judge ordered a two week halt to the phasing out of Title forty two. Where does that stand well in the Title forty two cases, We're still now working our way towards that temporary restraining order being made into a preliminary injunction. It's likely that a preliminary injunction will be issued in either the Louisiana case or the Texas case.
And then once that preliminary injunction goes into place, I mean, they haven't till make twenty three, so I think you'd probably see the preliminary injunction ruling on is most likely, or and then at that point, the federal government is going to have to appeal to the Fifth Circuits and or the Supreme Court after the Fifth Circuit does their ruling. But that's the likely route of what we're gonna see,
and then we'll know. But I would look towards by one may to see where we're actually going to be headed on this Title forty two, whether it will be allowed to be refended or whether the courts will require that it remained in place. Do you think the Biden administration is secretly breathing a sigh of relief that this decision has been taken from them. I don't know, It's
hard to say. I do think the more times that the Biden administration has to prepare for a post Title forty two worlds, the better it is for them in terms of building resources that I'm building the infrastructure for this. But at the same token, I do think they genuinely believe that at some point there will be a world without COVID and that at some point then you will have to administer the ending of Title forty two. And so the question is that now, is it a month
from now, is it three months from now? And so while I think any extra time is good. I don't know that they want an indefinite say of this, and so you will see them push pretty aggressively to try to challenge these injunctions. Thanks so much, Leon. That's Leon Fresco, a partner at Hondon Knight and that's for this edition of The Bloomberg Law Show. Remember you can always get
the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com slash podcast Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg