The Burger Court ruled 5–4 in Plyler v. Doe (1982) that Texas must provide a free public education to “undocumented school-age children” (illegal aliens). Justice William Brennan, writing for the majority, reasoned that the Equal Protection Clause prohibits excluding such children from the public schools. The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Brennan reasoned that “any person within its jurisdiction” included illegal aliens living in the state. He wrote that “denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers preventing unreasonable obstacles to advancement on the basis of individual achievement.”

Chief Justice Burger authored a stinging dissent, accusing the majority of legislating from the bench. He explained: “The Constitution does not constitute us as ‘Platonic Guardians’ nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy. We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policymaking role as the Court does today.”