Jan Resseger explains the next area of attack from Heritage Foundation– education for immigrants. Reposted with permission.
For weeks, as we have been watching the tragedy of ICE invading schoolyards to round up immigrant students and their parents and send them off to warehouse detention centers, there are also structural legal barriers being promoted by anti-immigrant advocates to curtail the right of undocumented immigrant students to public schooling. At least three state legislatures are considering laws to force public schools to collect immigration data on their students and perhaps, as happened decades ago, to ban the right to free public schooling for those children. In addition, the Heritage Foundation continues strategizing about how to undermine federal legal protection by stimulating someone to mount a legal challenge to the 1982, Plyler v. Doe decision by the U.S. Supreme Court.
The Plyler v. Doe decision overturned a 1975, Texas law denying the allocation of state funding to school districts to pay for the children of undocumented immigrants. After the public schools in Tyler, Texas began charging immigrant families annual tuition of $1,000 per child, a lawsuit challenged the Texas statute, a lawsuit which eventually reached the U.S. Supreme Court. In the 1982, decision in Plyler v. Doe, the Supreme Court declared the Texas statute unconstitutional.
Defining the public purpose of our system of public schools, accessible to all children, Justice William Brennan wrote: “A Texas statute which withholds from local school districts any state funds for the education of children who were not ‘legally admitted’ into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment… (T)he Texas statute imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. These children can neither affect their parents’ conduct nor their own undocumented status. The deprivation of public education is not like the deprivation of some other governmental benefit. Public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage: the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological well-being of the individual, and poses an obstacle to individual achievement.”
Brennan defines principles that have long been the foundation of our nation’s education system: the guarantee of free public schooling to prepare every child to achieve and to prepare all children to contribute socially, economically, intellectually and politically as part of our democracy.
The National Immigration Law Center adds that a federal court has interpreted the Plyler decision as banning school districts from collecting data on students’ immigration status and reporting out that information: “(T)he Eleventh Circuit Court of Appeals has ruled that laws requiring reporting on the immigration status of students can violate Plyler. Similarly, the Department of Education has issued guidance that this kind of data collection is unnecessary and may be illegal if it is done ‘with the purpose or result of denying access to public school on the basis of race, color, or national origin.’ ”
Education Week‘s Ileana Najarro reports that the Plyler v. Doe decision “remains binding federal law, even as the Heritage Foundation… published a policy document on February 17 (2026) calling on states to intentionally enact laws or rules restricting free public education for undocumented students and calling on the highest court to overturn the landmark decision.” At the same time, Education Week updated its map of the states that have passed laws to affirm the Plyler decision by protecting the rights of immigrant students (Illinois and Massachusetts); proposed a law to protect the rights of immigrant students (New York); defeated laws to to undermine the rights of immigrant students (Idaho, Oklahoma, Texas, and Indiana); and are now considering laws to undermine the protection of the rights of undocumented immigrant students (New Jersey, Tennessee, and Ohio).
In testimony presented on November 18, 2025 in the Ohio bill’s 3rd hearing before the Ohio House Government Oversight Committee, the Ohio Education Association’s President, Jeff Wensing presented powerful testimony explaining Ohio House Bill 42 and vehemently opposing the proposed law: “House Bill (HB) 42 would require multiple state agencies, including the Department of Education and Workforce (DEW), to collect and report data on the citizenship and immigration status of the people they serve. Specifically, for K-12 public schools, the bill requires that local school districts report the following data: the number of students who are U.S. citizens or nationals, the number of students who are not citizens but are ‘lawfully present,’ broken down by immigration category, and the number of students who are ‘not lawfully present’ in the United States. DEW must then report this data to the Governor, who in turn must submit a statewide report to the General Assembly and post it on a public website.”
OEA’s Wensing elaborated on the reasons Ohio HB 42 is obviously unconstitutional under Plyler v. Doe: “Ohio’s Legislative Service Commission (LSC) has already identified serious constitutional concerns with this approach. LSC’s bill analysis notes that the U.S. Supreme Court’s decision in Plyler prohibits states from denying undocumented children access to K-12 education, and it points to an Eleventh Circuit decision striking down an Alabama law that required public schools to collect and report students’ immigration status for data reporting… ‘Plyler rights’ require that no child should be turned away from school, or made afraid to attend school, because of where they were born or the papers their family does or does not have. Right now, Ohio’s policies respect those rights….”
There is, however, a further twist to the threat posed by the state laws being proposed today to eliminate immigrant students’ rights. The Heritage Foundation is pursuing the goal of using these new laws as tools to get the Plyler v. Doe decision itself overturned. As part of a long legal strategy, the Heritage Foundation has been pressing states to pass laws that would explicitly violate Plyler v. Doe by requiring school districts to collect and publicly expose data about students’ immigration status and to pass state laws that would violate the rights of undocumented immigrant students.
The proposed Ohio House Bill 42 is one of those explicitly unconstitutional laws supported by the Heritage Foundation. If it were to pass, not only would it undermine the rights of some of our state’s most vulnerable public school students, who, as Justice Brennan explained, are not responsible for their parents’ decision to emigrate to the U.S., but also, the bill’s sponsors could help the Heritage Foundation and its allies recruit plaintiffs who would sue to protect the state law by getting today’s U.S. Supreme Court to overturn the 1982 Plyler v. Doe decision that that makes Ohio’s proposed HB 42 unconstitutional.