The Burden of Plyler v. Doe

The Social Contract Press

The Burden of Plyler v. Doe
by Edwin S. Rubenstein
May 1, 2010


Public education is the largest expense state and local governments incur on behalf of illegal aliens. It has been estimated that immigration will account for 96 percent of the increase in the school-age population in the United States over the next 50 years. Illegal aliens will account for as much as half of the increase.

In 1982, in the Plyler v. Doe decision, the United States Supreme Court struck down a Texas statute denying funding for education to children who were illegal immigrants. Most legal scholars see Pyler v Doe as a naked usurpation of Congressional powers - an attempt to make up for the legislative branch's inability or unwillingness to deal with the illegal alien problem. It stands as a monument to judicial activism.

This article explores the tremendous fiscal cost associated with bilingual education and English as a Second Language (ESL) programs.

While town hall activists shout down proposals to provide health care to illegal aliens, they are mute on an even costlier entitlement: public education. Because illegal immigrants are relatively young and healthy, they generally don't need as much medical treatment as U.S. citizens. (They account for less than 2% of national medical spending.) But their youth, along with above-average fertility rates, means that illegals account for a disproportionately large share of public education costs.

Public education is by far the largest expense state and local governments incur on behalf illegal aliens. The average low-income immigrant household - a category that includes illegal aliens and their U.S.-born children - receives an estimated $7,737 each year in kindergarten through grade 12 education services.1 That's more than twice the combined annual cost of Medicaid, welfare, and other means-tested benefits for such households ($2,957.) It also dwarfs the expense of providing them with police and fire protection ($2,198), transportation ($572), unemployment insurance ($488), and sewer and utilities ($411).2

The cost of educating illegal aliens and their native-born children is expected to grow dramatically. A FAIR report, "No Room to Learn: Immigration and School Overcrowding," estimates that immigration will account for 96 percent of the increase in the school-age population in the United States over the next 50 years. Illegal aliens will account for as much as half of the increase.

How did it come to this?

Blame it on the Supremes.

In Plyler v. Doe (1982) the Supreme Court of the United States struck down a Texas statute denying funding for education to children who were illegal immigrants. By a 5-to-4 majority the Court ruled that the law violated the Equal Protection Clause of the 14th Amendment, which reads: "No State shall...deny to any person within its jurisdiction the equal protection of the laws."

Texas officials had argued that illegal immigrants were not "within the jurisdiction" of the state and could thus not claim protections under the Fourteenth Amendment.

Chief Justice Warren Burger supported the state's position in his dissenting opinion:

"The Equal Protection Clause does not mandate identical treatment of different categories of persons... Without laboring what will seem obvious to many, it simply is not "irrational" for a state to conclude that it does not have the same responsibility to provide benefits to persons whose very presence in the state and this country is illegal as it does to provide for persons lawfully present. By definition, illegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expense of those who are lawfully in the state..."3

Further undercutting Pyler is the widely accepted notion that the Equal Protection Clause pertains only to the rights and privileges guaranteed by the Constitution. Those fundamental rights include life, liberty, property, and due process - but not discretionary benefits offered by a state such as 12 years of very expensive schooling, provided free.

Even Justice Brennan, in his majority opinion, admitted that "public education is not a 'right' granted to individuals by the Constitution."4

Most legal scholars see Pyler v Doe as a naked usurpation of Congressional powers, an attempt to make up for the legislative branch's inability or unwillingness to deal with the illegal alien problem. Yet it stands as a monument to judicial activism.

The Fiscal Burden

While the constitutionality of Plyler v. Doe is questionable, its fiscal impact is not. For decades illegal aliens have been the key driver of public school enrollment and costs in the United States. A recent study by the Pew Hispanic Center estimates that children of illegal aliens represented 6.8% of total K-12 enrollment in 2008. That is up from a 5.4% share in 2003.5

Nearly two-thirds of the children of illegal aliens enrolled in U.S. schools were born in the U.S.

Illegal alien enrollment varies greatly among the states. California is widely acknowledged to have the heaviest concentration, with more than 15% of public school enrollments comprised of children of illegal aliens. In five other states-Arizona, Colorado, Illinois, Nevada and Texas-at least one-in-ten students have parents who are illegal aliens. More than 5% of students are children of illegal immigrants in Florida, Georgia, Kansas, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Utah, and Washington.6

By contrast, in more than a dozen states less than one-in-fifty students (less than 2%) live with parents who are unauthorized immigrants.7

Total K-12 spending can be divided into current and capital expenditures. Current spending includes salaries and benefits of teachers, instructional aids, principals, and other staff. They also include the purchase of goods and services such as textbooks and utilities. Capital expenditures include the costs of constructing new school buildings or renovating and expanding existing ones. Purchases of equipment are also considered capital expenses.

Current expenditures

The simplest way to estimate the current cost of educating illegal aliens and their U.S.-born children is to multiply the estimated number of such students by average per pupil current expenditure. Here are the links in this chain:

  • Total K-12 enrollment: 48.4 million8
  • Illegal alien enrollment: 3.3 million (6.8% of total)
  • Current spending per pupil: $9,6669
  • Total current expenditures for children of illegal aliens: $31.9 billion (3.3 million X $9,666)

Bottom line: At least $31.9 billion is spent annually on current expenses incurred to educate children of illegal aliens. The lion's share - $26.1 billion, or 81.7% of the total - goes for salaries and benefits of teachers, instructional aids, principals, administrators, and other staff. The rest is spent on support services, which include pupil transportation, textbooks, utilities, and school building maintenance expenses.

These figures are based on national averages. As such, they probably underestimate the costs of educating illegal aliens. They do not take into account the fact that illegal aliens usually live in urban areas where salaries are relatively high. Illegal alien children also require more in-school services than their classmates who are children of U.S.-natives. As discussed below, English language instruction classes alone can increase costs by as much as 200% over average per pupil costs.

The disproportionate expense imposed by illegal alien students - and the resulting drain on other parts of state education budgets - is highlighted in several studies.10 We summarize the findings, adjusting dollar amounts for inflation to 2007:

  • California spent $8.5 billion educating the children of illegal immigrants in FY2007- or nearly 15% of that year's total K-12 education expenditures. This amount could pay the salaries of 31,000 teachers for three years and finance the purchase of 2.8 million computers - enough for about half the state's students.
  • Texas spends about $4.3 billion educating children of illegal aliens, or about 12% of FY2007 education spending. This would more than cover the $2.5 billion shortfall identified by the Texas Federation for Teachers for textbooks and teachers pensions.
  • Pennsylvania spent an estimated $661 million educating children of illegal aliens in FY2008 - about 3.0% of all public school spending. By contrast, the 48,500 children of illegal aliens enrolled in Pennsylvania public schools represent about 2.7% of total public school enrollment.
  • In New York, the $3.4 billion spent educating illegal aliens and their U.S.-born children (8% of total K-12 spending) could reduce the city's current fiscal deficit by more than half. Alternatively, it could forestall most of the proposed state budget cuts for hospitals and nursing homes.
  • Illinois spends $2.2 billion educating the children of illegal aliens - nearly 11% of total K-12 expenditures. This amount would cover nearly one-fifth of the state budget deficit projected for FY2010.
  • Florida spends $1.3 billion educating children of illegal aliens - or roughly 5.7% of total K-12 expenditures. This amount could fund the public school services eliminated as a result of recent federal budget cuts (estimated by the Center on Budget and Policy Priorities at $621 million over five years), as well as the $353 million lost to the state for adult and vocational education.
  • In Arizona, the $822 million spent educating illegal aliens and their U.S.-born children is equivalent to 10.5% of total statewide K-12 spending. The state, which recently ranked dead last in per pupil spending, could close half the gap with the national average if relieved of this burden.
  • Colorado spent $620 million educating children of illegal aliens in FY2007, equal to 9.4% of statewide K-12 expenditures. This amount would have replaced all the education funds Colorado lost due to federal budget in FY2006 and FY2007.

Capital expenditures

More than 50 million elementary and secondary school students are educated in approximately 97,000 public schools in the United States. Neither the quantity nor quality of school building facilities has kept pace with enrollment. About 14% of schools exceed their capacity by six to 25%, and eight percent are more than 25% above capacity. To alleviate overcrowding, more than one-third of schools use portable classrooms and one-fifth hold classes in non-classroom settings such as cafeterias and gyms.11

California is the poster child for school overcrowding. The state Department of Education estimates that 16 new classrooms must be built every day, seven days a week, for the next five years to accommodate the anticipated 100,000/year influx of new students. Many LA schools have lengthened time between classes to give students time to navigate through packed hallways. District officials warn that double sessions (one in the morning, one in the afternoon), Saturday classes, and even year-round schooling may be needed until the new schools are operational.

The ultimate driver for new school construction is rising enrollment - and the ultimate driver for enrollment is immigration. In fact, without immigration school enrollment would have declined in recent years:

K-12 School Enrollment by Nativity
(numbers in thousands)
      Increase / (decrease)
  1999 2007 Number %
Foreign-born 2,697 2,849 152 5.6%
Children of foreign-born 11,480 13,547 2,067 18.0%
Native-born children of native-born parents 43,015 41,615 -1,400 -3.3%
Total enrollment 57,192 58,011 819 1.4%
Note: Includes private school and nursery school enrollments.
Data source: Census Bureau, "School Enrollment," Current Population Survey.


Enrollment of native-born children of native-born parents fell by 1.4 million, or 3.3%, from 1999 to 2007. Over the same period foreign-born enrollment rose by 5.6% and enrollment of U.S.-born children of foreign-born parents rose an astounding 18%.

Bottom line: immigration (legal and illegal) accounted for all of the increase in K-12 enrollment between 1999 and 2007.

The number of foreign-born students enrolled in K-12 is estimated annually by Census Bureau. So is the enrollment of U.S.-born children of foreign-born parents. Unfortunately, the household survey upon which these estimates are based does not ask whether students or their parents are here legally. Thus the Census Bureau is no help in estimating the share of K-12 enrollment that consists of the children of illegal aliens. School systems are themselves reluctant to ask the immigration status of parents.

Thus the Pew Hispanic Center's estimate - 3.3 million children of illegal aliens in K-12 (6.8% of enrollment) - is the best we have.

U.S. Public school systems spent $81.8 billion on capital outlays in the 2006-07 school year (the latest available year of data.), as follows:

Capital expenditures of U.S. Public School Systems, 2006-07
  Total ($billions) % of total
Construction $50.3 61.5%
Land acquisition $4.8 5.9%
Equipment $9.1 11.1%
Bond interest $17.6 21.5%
Total $81.8 100.0%
Source: Census Bureau, "Public Education Finances 2007," July 2009. Table 9. Percents calculated by author.


How much of these expenditures are due to children of illegal aliens?

There are two ways of estimating this. First, we can assume that illegal alien pupils require the same capital expenditures as any other student. This implies that the share of capital expenses attributable to children of illegal aliens is the same as their share of K-12 enrollment - 6.8%.

On this basis illegal immigration is responsible for $5.6 billion of public school capital expenditures, distributed as follows:

K-12 capital spending due to illegal immigration (6.8% of total)
Construction $3.4 bil.
Land acquisition $0.3 bil.
Equipment $0.6 bil.
Bond interest $1.2 bil.
Total $5.6 bil.


Alternatively, we can assume that construction outlays are undertaken solely to accommodate growing enrollments rather than to renovate or replace existing school buildings. Under this assumption the share of capital expenditures attributable to illegal immigrants is best measured by their share of the increase in enrollment rather than by their share of the level of enrollment.

Since the entire increase in K-12 enrollment in recent years was due to immigration, the entire $81.5 billion spent on capital expenditures in 2006-07 can be attributed to immigrants under this assumption. If, as widely believed, children of illegal aliens account for at about half of the enrollment increase, the following capital expenditures can be attributed to illegal immigration:

K-12 capital spending due to illegal immigration (50.0% of total)
Construction $25.2 bil.
Land acquisition $2.4 bil.
Equipment $4.6 bil.
Bond interest $8.8 bil.
Total $40.9 bil.


It is worth noting that most new school construction is financed by issuing bonds backed by property tax receipts. Bond finance is a particularly wasteful way to pay for school construction and repairs. Every $1 million of a school district construction bond can eventually cause taxpayers to pay out $2 million in total costs. Most of the difference is interest paid on the bonds, but there are other charges as well:

  • Sales Commissions: The securities dealers are paid commissions when they sell the bonds.
  • Attorney's Fees: One or more lawyers are paid to give legal opinions on these bonds.
  • Bond Exchange Fees: Those exchanges permitting the bonds to be traded are paid for their services.
  • Transfer Agent Fees: A transfer agent's firm will be paid to keep a record those buying and/or selling these bonds, also issuing bond interest dividends.

At the end of the day, only 50 cents of every school district bond dollar is actually used to build and renovate schools.

In fact, all of the dollar amounts in the above tables understate the capital expenses incurred on behalf of illegal aliens. That's because they do not take into account the fact that illegal aliens usually live in urban areas where school construction costs are above the national average.

The trend is clear: an ever larger share of public school construction expenses are due to the children of illegal aliens. The children of U.S. natives will fight for the crumbs.

English Language Instruction

We state above that "at least" $31.9 billion of current expenditures are due to illegal immigration. This is a big number - but not big enough. It assumes that the average per pupil expenditure of $9,666 applies to illegal aliens. This ignores an extraordinary expense associated with many illegal alien students: English language instruction. The federal government requires school districts to place immigrant students with limited language skills (English Language Learners) into English as a Second Language (ESL) programs.

A 2004 report by the GAO found that the costs associated with ESL can more than double average instructional costs:

"Bringing ELL-enrolled children up to the grade level of same age non-ELL-enrolled children has been estimated to potentially increase costs by an additional 10 to 100 percent over usual per pupil costs; for students living in poverty (independent of ELL programs), the corresponding range of estimates is 20 to 100 percent. Bringing students characterized by both poverty and limited English proficiency up to average levels of achievement could potentially increase average costs by a larger amount-perhaps 30 to 200 percent over average per pupil costs."12

Obviously there are many varieties of ESL programs to chose from, each with different cost structures. While the average student in K-12 generates $9,666 in current costs, those in ESL cost between 10% and 200% percent more. This implies added current costs of between $967 and $19,332 per pupil.

The worst case scenario - 100% of illegal alien pupils are poor and enrolled in gold plated ESL programs - implies that an additional $64 billion (3.3 million X $19,332) is spent teaching children of illegal aliens to speak proper English each year. This is over and above the $31.9 billion current expenditure estimate based on average per pupil spending amounts.

Implication: educating children of illegal aliens could cost U.S. school systems as much as $95.9 billion ($31.9 billion non-ESL costs plus $64 billion for ESL.) Add to this the estimated $40.9 billion in capital expenses and illegal immigration represents a $137 billion expense for U.S. school systems.

Absent Plyler v. Doe those resources would be available for the children of U.S. natives as well as children of legal immigrants.

These enormous expenditures might be tolerable if ESL programs worked - but they don't. The accumulated research of the past forty years reveals almost no justification for teaching children in their native languages to help them learn English or other subjects. California's experience is typical: in 1997 only 6.7% of the state's 1.4 million bilingual education students were classified as English proficient when they completed the ESL program.13 The overwhelming failure prompted passage of Proposition 227, requiring students with limited English skills to be mainstreamed into English immersion classes. Follow-up surveys revealed significant improvement in English and math scores for immigrant students enrolled in Prop. 227 compliant classes.

Even the liberal Brookings Institution has thrown in the ESL towel:

"Since the 1960's, the U.S. Department of Education has enthusiastically embraced bilingual education. At the time this love affair began, no research evidence supported bilingual education as the best means for limited-English proficient (LEP) children to learn English and other subjects that a child will be tested on in English. Nor did any agreement exist on the definition of the target population or even on what bilingual education is. Some thirty years later, there still is no consistent evidence available to support bilingual education as the best means for LEP children to learn English and other subjects that they will be tested on in English, nor any agreement on the definition of the target population or bilingual education. Yet, the federal government's enthusiasm for bilingual education seems undiminished."14

The federal government still requires public schools to provide ESL or bilingual education (BE) programs for non-English speakers regardless of their immigration status. Some states have gone beyond the federal mandate: New Jersey requires BE programs be available for children as young as three years old; New York extended its BE mandate to college preparatory classes; Connecticut tests English learners in more than 50 languages, including Albanian, Bengali, Tagalog, and Russian.

Even Texas - the state defeated in Plyler v Doe - has jumped on the bandwagon. Texas law requires any public school district with 20 or more non-English-speaking students in the same grade level across to offer bilingual education. A shortage of qualified instructors has set off a hiring war. School districts are raising teacher salaries, awarding signing bonuses and offering annual stipends to lure ESL personnel.

The Houston Independent School District has recruited about more than 300 teachers during the last nine years from Spain, Mexico, Puerto Rico, China and the Philippines, among others, to fill vacancies in the bilingual program and in other areas where there are shortages.15

Bilingual teachers hired by HISD get a $3,000 stipend and receive $6,000 sign-on bonuses.

Since the early 1990s Texas districts have funded teacher preparation classes in at least 15 cities in Mexico, including Monterrey, Guadalajara, Mexico City, Puebla, Tampico, Morelia, Tijuana and Veracruz. Ads for the program appear throughout Mexico in newspapers and are broadcast on television and radio.

Recruiting abroad is expensive - but money may not be the biggest problem. Several of Houston's Mexican hires had fraudulent transcripts, with some speaking little or no English.

What's worse: English incompetence is not limited to imported ESL teachers. In Somerville, Mass., the five bilingual teachers who took an English competency test failed. In Lowell, 22 of 25 teachers failed. In Lawrence, 27 out of 31 teachers failed.

In reporting these results Rich Lowry, editor of National Review, observed: "The widespread failure to pass the test is a sign that bilingual education is a misnomer. It is really monolingual education, in any language but English."16

If bilingual ed teachers themselves can't speak or write English well, they certainly cannot teach the kids.

All of which confirms what many of us have long suspected: As with other government schooling programs, bilingual ed is all about the money, not the kids.


Citations are listed on this separate citations page.


About the author

Edwin S. Rubenstein Edwin S. Rubenstein, president of ESR Research, economic consultants, has 25 years of experience as a business researcher, financial analyst, and economics journalist. Mr. Rubenstein joined Hudson Institute, a public policy think tank headquartered in Indianapolis, as Director of Research in November 1997. While at Hudson he wrote proposals and conducted research on a wide array of topics.

As a journalist, Mr. Rubenstein was a contributing editor at Forbes Magazine and economics editor at National Review, where his "Right Data" column was featured for more than a decade. His TV appearances include Firing Line, Bill Moyers, McNeil-Lehrer, CNBC, and Debates-Debates. In The Right Data (National Review Press, 1994), Rubenstein debunks many widely held beliefs surrounding the distribution of income, government spending, and the nature of economic growth.

From 1980 to 1986 he was senior economist at W.R. Grace & Co., where he directed studies of government waste and inefficiency for the Grace Commission. From 1978 to 1980 he was a municipal bond analyst for Moody's Investors Service. Mr. Rubenstein has a B.A. in economics from Johns Hopkins and an M.A. in public finance from Columbia University.