Iowa radio host Jan Mickelson misrepresented the constitutional law that requires states to provide public school education to undocumented children in the United States. In fact, the Fourteenth Amendment of the U.S. Constitution clearly mandates that states and local educational agencies are obligated to provide these children with equal access to public education if other children in that state are receiving a similar benefit.
On Mickelson's Feb 19 radio show, Mickelson criticized the Iowa Farm Bureau for wanting to raise the gas tax, alleging instead that the state could save money by not funding undocumented students to go to public schools. Mickelson rationalized this attack on “the children of Mexico” by dismissing as “magical thinking” the long-standing Supreme Court ruling in Plyler v. Doe, which found that not providing public education to undocumented children in a school district was unconstitutional discrimination prohibited by the Equal Protection Clause of the 14th Amendment, and called providing education to these children a “scam” while claiming that there is no “mandate” requiring school districts to spend money educating undocumented children (see transcript below):
But Mickelson completely botched the Supreme Court's decision and relevant constitutional law.
Contrary to his explanation, the Court did not set an independent “spending mandate” on behalf of undocumented students. Rather, the Court concluded that if a state or local jurisdiction chooses to offer public education, it cannot constitutionally withhold this benefit based on immigration status, just as it cannot on account of race. In other words, the Court held that if a state chooses to offer public education to its residents, the Equal Protection Clause prohibits it from irrationally discriminating among its beneficiaries.
As explained by a fact sheet compiled by the U.S. Department of Justice and U.S. Department of Education, additional laws reinforce Plyler's holding, and "[a]ll children in the United States are entitled to equal access to a basic public and secondary education regardless of their actual or perceived race, color, national origin, citizenship, immigration status, or the status of their parents/guardians" and those schools that put up barriers to education “may be in violation of Federal law.” The agencies expanded in a joint guidance letter on this decades-old civil rights law:
The Departments enforce numerous statutes that prohibit discrimination, including Titles IV and VI of the Civil Rights Act of 1964. Title IV prohibits discrimination on the basis of race, color, or national origin, among other factors, by public elementary and secondary schools. 42 U.S.C. § 2000c-6. Title VI prohibits discrimination by recipients of Federal financial assistance on the basis of race, color, or national origin. 42 U.S.C. § 2000d. Title VI regulations, moreover, prohibit districts from unjustifiably utilizing criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of a program for individuals of a particular race, color, or national origin. See 28 C.F.R. § 42.104(b)(2) and 34 C.F.R. § 100.3(b)(2).
Additionally, the United States Supreme Court held in the case of Plyler v. Doe, 457 U.S. 202 (1982), that a State may not deny access to a basic public education to any child residing in the State, whether present in the United States legally or otherwise. Denying “innocent children” access to a public education, the Court explained, “imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. . . . By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” Plyler, 457 U.S. at 223. As Plyler makes clear, the undocumented or non-citizen status of a student (or his or her parent or guardian) is irrelevant to that student's entitlement to an elementary and secondary public education.
Mickelson's views on the cost of educating undocumented children puts him squarely in line with others in the anti-immigrant community including the Federation for American Immigration Reform, the Immigration Reform Law Institute, and The Social Contract Press, all of which have pushed the idea that educating certain children costs Americans too much.
Mickelson has a history of pushing anti-immigrant comments. Last month at the Iowa Freedom Summit, an event hosted by Rep. Steve King (R-IA) which included many 2016 GOP hopefuls such as Gov. Scott Walker (R-WI) and Sen. Ted Cruz (R-TX), Mickelson compared DREAMers to people trying to crash a hotel breakfast and "illegal gate crashers."
From the February 19 edition of Mickelson In The Morning:
MICKELSON: Oh, I'm going to change the subject again before I get to where I was going. Megyn Kelly on Fox News last night [Wednesday] had Rep. Gutierrez, he is an open borders Hispanic zealot, and he says because of that court case that blocks Obamnesty, that the rule of law being reestablished at the Federal level by a court saying that the president has to actually enforce the law, rewriting the law by neglect and overtly rewriting the law by executive order, which is not in his jurisdiction, you can't do that. Gutierrez says well, what's going to happen because of that court? Well, the Hispanic lobby and the open borders lobby are going to become more militant. And they're going to shout down everybody and they're going to be angry in the streets.
Did you hear that? “The Supreme Court has already issued a mandate that we must educate all children in America.” Well if I were there I'd ask him what was he talking about. And he would have had to have gone back to the Plyler case in '82, where the Supreme Court said that the citizens of Texas have to educate the citizens of Mexico, using their tax dollars to do it and they have a constitutional right to do it. And did you hear Gutierrez said, “well, that's a mandate!” No, it's an opinion. Judges can't issue mandates. The only - that is spending mandates - the only branch of government that is empowered to spend money is Congress. And only under the enumerated powers. And when the Supreme Court speaks, it cannot issue any mandates. It's unconstitutional on its face. And when they render an opinion that automatically costs the citizens money, that's on its face it should be rendered null and void, because its overtly unconstitutional. The minority, the 5-4 minority in that case back then, you ought to go back its Plyler, P-L-Y-E-R [sic], why don't you just read the court case. It's just magical thinking, friends. They just invented a new doctrine, said that the children of Mexico have a 14th amendment right in the United States to the money of Americans.
The problem with that, when they did that back then, the political class, almost the entire political class, acted as if it were a mandate. Including those folks here in Iowa who looked at that and took the Gutierrez, Congressman Gutierrez's argument and said, “That's a mandate. It's the law of the land here in Iowa,” and they began spending millions of dollars here in Iowa to educate people who are not supposed to be here. Now, it's a scam. It was a scam then, it's a scam now.
And listen to the bullying language of Gutierrez, says if we don't want to spend that money it's only because of hatred and bigotry and xenophobia and we're trying to criminalize criminals. You shouldn't use the word “criminal” when you describe criminals. Criminals, what's a criminal? Somebody who breaks the law. That's what the word means. And it's to the point where you're not supposed to say it. Somehow telling somebody that they are a criminal by their law-breaking behavior now is hate speech. Unfortunately though, there is a whole subculture in this country that utterly collapse when they hear language like that. They don't want to be thought as haters or bigots. When somebody like Gutierrez, who is an open borders and amnesty con artist, “well I don't want to be called that by people like that. Therefore, I won't use the 'criminal' word anymore and I won't call for the enforcement of the law and I've got to agree with that mandate thing.” And the political class is absolutely falling apart. Well I hope you are clear enough - clear-thinking person - clear enough in your thinking, not to be bullied when you hear, that's hate speech friends. They're accusing us with hatred and bigotry, when everything that we are saying is legally correct. To be accused of that, hatred and bigotry, that's the hate speech. The accusation itself is the hate speech.