Upholding Educational Rights of Detained Immigrant Minors: Settle for Flores or Try for Plyler?

• In Event: 66.068 - Policy and Precedent: An Examination of Legal Implications in Education for Policy Scholars

Abstract

In Plyler v. Doe (1982) the U.S. Supreme Court ruled states cannot deny students a public education based on immigration status. Despite the Court’s compelling mandates, undocumented youth remain a vulnerable population. This includes increased vulnerability to detention and deportation due to the Trump administration’s expansion of immigration enforcement priorities to non-criminals (Kopan, 2018). The U.S. operates the world’s largest immigration detention system, release from which is erratic and increasingly not permitted (Detention Watch Network, 2018). Moreover, the Trump administration made clear intentions to expand this system while reducing basic protections previous administrations developed to improve treatment and conditions (Women’s Refugee Commission, 2017). Already, there have been large increases in numbers of detained families and children (Fernandez, 2018; Stewart, 2018).
Research demonstrates deleterious and often traumatizing effects of immigration detention on children. Studies describe prison-like conditions, inconsistent access to medical, dental, or mental health care, and insufficient appropriate developmental or educational opportunities (Linton, Griffin, & Shapiro, 2017). Indeed, most detained immigrant children are denied adequate education despite its vital role in rehabilitation and (re)integration into society (Right to Education Initiative, 2018).
The Flores Settlement Agreement ([FSA]; 1997) designates basic protections governing treatment and conditions of detained undocumented minors. While Plyler affords undocumented children a right to public education, FSA affords detained undocumented children their right to education. In this paper, I use a collective case study to examine the extent to which FSA educational rights are upheld. Findings demonstrate the current precarious nature of FSA protections. Thus, I subsequently use doctrinal analysis to explore possible application of Plyler to detained undocumented children.

Results
Recent litigation demonstrates continuous FSA violations by government bodies responsible for its implementation. Most frequent violations include unacceptable housing, medical, recreational, and educational services (e.g., Schad, 2012; Fabian v. Dunn, 2009; Flores v. Johnson, 2015, Flores v. Sessions, 2017). Additionally, numerous reports evidence immigration authorities’ failure to uphold educational rights. Some facilities do not provide education and, at times, deny education as a disciplinary mechanism (AI, 2003). At other facilities, educational resources are inconsistent, inadequate, and unmonitored (Southern Poverty Law Center, 2016). Most problematic are the Trump administration’s moves to fight and end FSA protections (Rosenberg, 2017; Flynn, 2018).
Absent FSA it may be possible to enforce detained undocumented minors’ educational rights using Plyler. Undocumented youth in immigration detention are similarly situated to their peers living in the U.S. - distinguished only by chance situations out of their control. Plyler forbade use of government policies effectively barring undocumented youth from public school. The government is required to release children from immigration detention without unnecessary delay thus, those in prolonged detention are wrongfully barred by government from attending public school.

Significance
This paper identifies failures to uphold detained undocumented children’s educational rights. As the current administration moves to fight FSA, eliminating any legal protection, they exacerbate a context rife with abuse. Such a context has implications for advocates who will need to seek out other legal mechanisms to ensure education and opportunity for all children.

Author

• Chelsea Connery, University of Connecticut - Storrs