What Would Justice Powell Do? The 'Alien Children' Case and the Meaning of Equal Protection

Abstract

The current immigration debate adds renewed relevance to the Supreme Court's 1982 decision in Plyler v. Doe, holding that a state that provided a free public education to any child had to provide it to all children, including undocumented immigrants. Justice Brennan wrote for a 5-4 Court, with the full, if seemingly unlikely, concurrence of his conservative colleague, Lewis F. Powell Jr. This article tells the back story of how these two very different Justices came to agreement in this important case.