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Although not an equal protection case, Martinez v. Regents of the University of California challenges us to grapple with the Supreme Court’s post-Brown commitment to equal opportunity within the context of immigrant higher education. Sadly, Brown’s progeny from Bakke to Parents Involved reveals the cost of embracing a color-blind constitutionalism unmoored from a fundamental commitment to vigilantly combat subordination and dismantle unearned privilege. More optimistically, the Supreme Court’s gay rights jurisprudence developed in Romer v. Evans and Lawrence v. Texas provides insights into how a conservative court can accurately distinguish irrational discrimination from democratic deliberation, a lesson that might help us better understand how the immigrant education case, Plyler v. Doe, is a true heir to the legacy of Brown and its promise of integrative egalitarianism – that society should invest in the education of all, noncitizens included.


Originally published at 2011 Michigan State Law Review 275 (2011).