# In Re Alien Children Education Litigation

> District Court, S.D. Texas · July 21, 1980 · 501 F. Supp. 544

URL: https://www.frixlaw.com/law-library/cases/2378335

## Case

- **Full name:** In Re ALIEN CHILDREN EDUCATION LITIGATION
- **Court:** District Court, S.D. Texas
- **Decided:** July 21, 1980
- **Citations:** 501 F. Supp. 544; 1980 U.S. Dist. LEXIS 9642
- **Precedential status:** Published
- **Opinion:** Opinion by Seals
- **Judges:** Seals
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2378335

## How later opinions describe it (automated extraction)

- holding that “the equal protection clause protects undocumented aliens because they are ‘persons within the jurisdiction’ of the state. State discrimination against illegal aliens is not necessarily permissible, and when a fundamental right is in fringed by that discrimination…
- noting that undocumented families pay taxes "to the same extent as others with similar income"
- noting how rare tuition payment was

## Opinion text

I. INTRODUCTION
SEALS, District Judge.
This case concerns what has evolved into the most important institution in this country: the public school. Our public schools no longer exist merely to supply the tools which provide access to the economic bounty and participatory process of this nation. With the decline of the influence possessed by other institutions in our society such as the family and church, the schools are being called on to perform additional functions. Public school teachers are being required to perpetuate our culture and to provide a moral compass for our children.
Children are the basic resource of our society. Appropriately enough, these cases were consolidated during the Year of the Child. Children will be the parents of the next generation, and' it will be their task to carry on the work of this nation.
In this day we must examine the proper roles of the state and national governments in our federal system. The last three decades have been marked by federal involvement in the affairs of local schools. While all must recognize this as a move toward social justice, many question whether the quality of education has benefited. Many more have questions about the limits of the federal response.
It is the responsibility of the federal government to regulate immigration. As a country without a new frontier, we no longer relish our role as a haven for immigrants. The evidence in this case conclusively disclosed a failure of legislative will. There is little effort to make the hard choices about the contours of our policy on Mexican immigration. A quota is set without much deliberation because all know it will be effectively disregarded. The border is no barrier and employers are hospitable. Those who promote lawlessness by ignoring the laws are held largely blameless. Those who cross the border to find work are scornfully treated as criminals without rights.
These concerns, however, do not control the disposition of the issues before the court. . Indeed, to some extent, they must be ignored altogether because the question here is not what should be done about the confluence of these problems. The court must determine whether the State’s reaction to them is permissible. The question is not whether the contested state law is wise or short-sighted, but whether it is constitutional.
At issue is a statute which prohibits the use of a state fund to educate persons who are not citizens of the United States or “legally admitted aliens.”
1
Tex.Educ.Code Ann. tit. 2, § 21.031 (Vernon 1980). That statute by negative implication also permits local school officials to exclude undocumented children from the public schools. Plaintiffs assert that the statute denies them equal protection of the laws, is preempted by federal legislation, and conflicts with federal treaties and foreign policy.
2
*550
After describing the procedural posture of this case, resolving the pending motions, and discussing the history and effect of the challenged statute, the court will consider each of these contentions in order.
A. Procedural Posture
In September, 1978, four complaints were filed in the Southern District of Texas against the State and three local school districts.
3
Subsequently a similar action was filed in the Northern District of Texas in April, 1979,
4
followed by two suits in the Western District.
5
The State of Texas and the Texas Education Agency (TEA) were named as defendants or were granted permission to intervene as defendants in these actions. The complaints were later amended to name the Governor of the State of Texas and the Commissioner of Education as defendants. These defendants will be referred to collectively as the State.
In September 1979, the State filed a petition with the Judicial Panel on Multidistrict Litigation. The Panel, on November 16, 1979, issued an Opinion and Order finding that the claims against the State involved common questions of fact and that centralization of these claims in the Southern District of Texas for co-ordinated or consolidated pretrial proceedings would serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The Panel also concluded that the claims against the various school districts and school board members involved few, if any, common questions of fact. Accordingly, these claims were severed from the co-ordinated or consolidated pretrial proceedings and remanded to their respective transferor districts.
6
These severed claims have been held in abeyance pending resolution of the plaintiffs’ claims against the State.
On January 11, 1980, the United States filed a motion to intervene and a complaint-in-intervention asserting that section 21.031 violates the equal protection clause of the fourteenth amendment. By order of February 1,1980, the court granted the motion to intervene. The State filed a motion to add the United States as a third-party defendant. Pursuant to Rule 14(a), Fed.R.Civ.P;, a third-party action is not appropriate against a party to the action. Additionally, in this action for declaratory and injunctive relief, the United States is in no way secondarily liable to the State and any “liability” of the federal government is not dependent on the outcome of the plaintiffs’ claim.
See
6 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1446 (1971). The State’s motion was denied.
After receiving the Opinion and Order transferring these cases for consolidated pretrial proceedings, the court held a con
*551
ference on December 20,1979, to discuss the schedule for conducting the consolidated pretrial proceedings. At that hearing the parties agreed to have this court rule on the claim that the State statute is unconstitutional.
7
Pursuant to that agreement the court scheduled a hearing on the merits which was held from February 19 through March 27, 1980. The parties then filed briefs with the court, the last of which was received on June 5, 1980.
The court, once again, wishes to express its appreciation to the lawyers for preparing this case for trial within the time constraints imposed by the court. A great deal of discovery was conducted within a relatively short time in order to facilitate hearing this case at the earliest date. The lawyers for all parties attempted to co-operate with one another to enable the court to hear all the evidence reasonably necessary to frame this important question. Although the period for post-trial briefing extended longer than originally contemplated, this is .understandable considering the amount of evidence received and the complexity of the issues.
B. Pending Motions
1. Defendants’ Motion to Dismiss.
The state filed a motion to dismiss urging the court to abstain in this action.
8
The State claims that
Burford
-type abstention is appropriate because this case involves predominant state interests.
Burford v. Sun Oil Co.,
319 U.S. 315 , 63 S.Ct. 1098 , 87 L.Ed. 1424 (1943). In
BT Investment Managers, Inc. v. Lewis,
559 F.2d 950 (5th Cir. 1977), the court of appeals stated that this type of abstention was appropriate in cases involving matters “such as regulation of natural resources, education, or eminent domain, where a paramount state interest is apparent, where the history of state judicial experience in the area indicates special reliability, or, even absent an established regulatory scheme, where the intrusion of federal adjudication might handicap state government.”
Id.
at 955 (footnotes omitted).
See Stainback v. Mo Hock Ke Lock Po,
336 U.S. 368, 383-84 , 69 S.Ct. 606, 614-615 , 93 L.Ed. 741 (1949). Over thirty years have passed since the Supreme Court decided
Stainback .
A great deal of litigation has occurred in that time and the need for that litigation attests that “the history of state judicial experience in the area [does not] indicate special reliability.”
Lewis, supra. Cf. Griffin v. Prince Edward County School Board,
377 U.S. 218, 229 , 84 S.Ct. 1226, 1232 , 12 L.Ed.2d 258 (1964). It is no longer persuasive to argue that federal courts should defer to the state courts when discrimination in education is alleged. Burford-type abstention is inappropriate and the State’s motion to dismiss is denied.
*552
2. Plaintiffs’ Motion For Partial Summary-Judgment.
On the basis of
Doe v. Plyler,
458 F.Supp. 569 (E.D.Tex.1978), the plaintiffs have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P. They argue that the doctrine of collateral estoppel precludes re-litigation of the questions actually decided in
Plyler :
Whether section 21.031 violates the equal protection clause of the Fourteenth Amendment; whether it is preempted by the Immigration and Naturalization Act.
In
Parklane Hosiery Co. v. Shore,
439 U.S. 322 , 99 S.Ct. 645 , 58 L.Ed.2d 552 (1979), the Supreme Court stated that collateral estoppel “has the dual purpose of protecting litigants from the burden of re-litigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.
Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation,
402 U.S. 313, 328-329 [ 91 S.Ct. 1434, 1442-1443 , 28 L.Ed.2d 788 ] (1971).” The doctrine of collateral estoppel should be applied when three requirements are satisfied:
(1) The issue to be concluded must be identical to that involved in the prior action;
(2) In the prior action the issue must have been actually litigated; and
(3) The determination of the issue in the prior action must have been necessary and essential to the resulting judgment.
International Ass’n of Mach. & Aero Workers v. Nix,
512 F.2d 125, 132 (5th Cir. 1975).
See Port Arthur Towing Co. v. Owens-Illinois, Inc.,
492 F.2d 688 , 692 n.6 (5th Cir. 1974);
James Talcott, Inc. v. Allahbad Bank, Ltd.,
444 F.2d 451, 458-59 (5th Cir. 1971).
It is readily apparent that the issue in
Plyler
was not identical to that in this case. Both the pleadings and the order in
Plyler
demonstrate that the
Plyler
case involved only the constitutionality of section 21.031 as applied by the Tyler Independent School District.
9
After the court entered its judgment in
Plyler ,
the State moved to reopen the case to present additional evidence.
10
Judge Justice, in denying the State’s motion, stated that there was no need to re-open the case since “the amended complaint does not state a cause of action against any school district other than the Tyler Independent School District and since this court intends to order relief only against the Tyler Independent School District. . . . ”
Doe v. Plyler,
458 F.Supp. 569 (E.D.Tex.1978). While it is true that the State offered some evidence in
Plyler
that related to the state-wide impact of the statute, the court’s order in
Plyler
did not decide that issue. Much emphasis was placed on the small number of undocumented children in the Tyler Independent School District.
Plyler, supra,
at 573 , 577 & 590. The issue in this multidistrict litigation is much broader. Although the two cases share a common inquiry, the issue considered in
Plyler
is not identical to that considered in this case.
In addition, even if the issue of the statewide constitutionality of the statute was decided in
Plyler ,
it was neither necessary nor essential to the resulting judgment. The
Plyler
court was not asked to hold the statute unconstitutional throughout the state. It could have granted all of the relief sought without even considering the issue of the facial constitutionality of the statute.
Finally, application of offensive collateral estoppel would be unfair to the State. In
Parklane Hosiery Co. v. Shore,
439 U.S. 322 , 330 n.14, 99 S.Ct. 645 , 651 n.14, 58 L.Ed.2d 552 (1979), the Supreme Court noted that “[allowing offensive collateral estoppel
*553
. may be unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant.” The State previously had defended successfully the constitutionality of the statute in the state courts.
Hernandez v. Houston Independent School District,
558 S.W.2d 121 (Tex.Civ.App.-Austin 1977, writ ref’d n. r. e.). That judgment is not binding on the plaintiffs here; they are not the privies of the state court plaintiffs. It would be unfair to allow the plaintiffs, but not the State, to use offensive collateral estoppel in reliance on the one previous judgment in their favor. Accordingly, the plaintiffs’ motion for partial summary judgment must be denied.
3. Motion to Proceed as a Class Action.
The plaintiffs seek to maintain this suit as a class action. Initially, the court was reluctant to grant the plaintiffs’ motion.
11
These consolidated actions were filed in several districts and they challenged the policies of different school districts. Questions about the effect of a particular school district’s policy may not be typical of those questions pertaining to the other school districts. Further, the court did not want to postpone the hearing on the merits to take up the class question.
Having heard the evidence, the court concludes that this action should proceed as a class action with respect to the issue litigated in this consolidated proceeding. The transferor courts should consider separately whether the plaintiffs’ claims against the various school districts for damages should be maintained as class claims.
It is clear that the class proposed is so numerous that joinder is impractical. Both the sheer numbers and the difficulty of locating class members prevent joinder. Whether section 21.031 is constitutional is a question of law which is common to the class and the claims of the representative parties are typical of the claims of the class. The representative parties, Elvia Mendoza, Miguel Mendoza, Javier Mendoza, and Jorge Mendoza, and their counsel, have represented the class adequately and fairly and the court believes they will continue to do so. Accordingly, the class representatives satisfy the requirements of Rule 23(a). In addition, the court finds that the State has acted on grounds generally applicable to the class and concludes that final injunctive relief is appropriate with respect to the class as a whole. Rule 23(b)(2).
12
The class is defined as all children who are over five and not over twenty-one years of age at the beginning of the scholastic year and have been or will be denied admission to the public schools in the State of Texas on a tuition-free basis because of the alienage provisions of section 21.031 of the Texas Education Code.
*554
C. The Challenged Statute
Prior to September 1, 1975, the Texas Education Code
13
provided that all children between six and twenty-one years of age were entitled to attend the public schools of the district where they resided. Funds were provided to the school districts by the State in proportion to the school district’s average daily attendance. All children were counted in the calculation of average daily attendance provided they satisfied the age and residency requirements.
14
In April, 1975, the Attorney General of Texas, upon a request made by the Commissioner of Education, issued an opinion holding that
all
children within the State were entitled to attend public schools in the district of their residence regardless of whether they were legally or illegally within the United States.
15
Prior to the Attorney General’s Opinion there had been no established policy regarding the admission of undocumented children to the public schools. A small number of school districts excluded undocumented children at that time.
16
In May, 1975, the Texas Legislature amended the Texas Education Code. The amended statute, Tex.Educ.Code Ann. tit. 2, § 21.031, provides in pertinent part:
(a) All children who are citizens of the United States or legally admitted aliens and who are over the age of five years and under the age of 21 years on the first day of September of any scholastic year shall be entitled to the benefits of the Available School Fund for that year.
(b) Every child in this state who is a citizen of the United States or a legally admitted alien and who is over the age of five years and not over the age of 21 years on the first day of September of the year in which admission is sought shall be permitted to attend the public free schools of the district in which he resides or in which his parent, guardian, or the person having lawful control of him resides at the time he applies for admission.
(c) The board of trustees of any public free school district of this state shall ad
*555
mit into the public free schools of the district free of tuition all persons who are either citizens of the United States or legally admitted aliens and who are over five and not over 21 years of age at the beginning of the scholastic year if such person or his parent, guardian or person having lawful control resides within the school district.
Accordingly, undocumented children are not entitled to attend public school and they may not be counted when calculating the average daily attendance which determines the school district’s share of the Available School Fund. Local school districts are given the discretion to deny admission or to permit attendance upon payment of tuition.
Needless to say, the effect of the new statute is to exclude undocumented children from the Texas public schools. Although some school districts continue to educate all children, the majority exclude them or require tuition.
17
There was no evidence that any undocumented children are presently attending school upon payment of tuition.
18
An evaluation of the statute properly may not proceed on the assumption that the statute operates only to prohibit the use of state funds to educate undocumented children. The statute makes a distinction which treats undocumented children differently from all other children with respect to admission to the public schools. Section 21.031(b) & (c). As the court has noted above, the effect of the amendment is to exclude undocumented children from school. Even though some school districts have opted to admit undocumented children, the State’s financing scheme penalizes them for that decision; they receive less money per pupil from the State than school districts which exclude undocumented children. Further, the statute was amended by the Legislature immediately after the Attorney General informed the Commissioner of Education that undocumented children were entitled to attend public schools. It is reasonable to conclude that the amendment was a response to the Attorney General’s Opinion.
19
Several school districts which previously admitted all children now use the amendment as authorization to exclude undocumented children. Accordingly, it would be sophistry to view this case as one involving only state fiscal policies or the method of financing the schools in Texas.
II. THE EQUAL PROTECTION CLAUSE
Section one of the fourteenth amendment of the United States Constitution states in pertinent part: “No state shall . deny to any person within its jurisdiction the equal protection of the laws.” This provision, “unlike other provisions of the Constitution, confers no substantive rights and creates no substantive liberties. The function of the equal protec
*556
tion clause, rather, is simply to measure the validity of
classifications
created by state laws.”
San Antonio Ind. School Dist. v. Rodriguez,
411 U.S. 1, 59 , 93 S.Ct. 1278, 1310 , 36 L.Ed.2d 16 (1973) (Stewart, J., concurring) (footnote omitted). The equal protection clause insures that legislative classifications are fair and that similarly circumstanced persons are treated alike. States have wide discretion in making classifications unless the classification is based on a suspect criterion or unless the classification affects a fundamental right or interest.
See Frontiero v. Richardson,
411 U.S. 677 , 93 S.Ct. 1764 , 36 L.Ed.2d 583 (1973);
Shapiro v. Thompson,
394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969);
Harper v. Virginia Board of Elections,
383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (1966);
McLaughlin v. Florida,
379 U.S. 184 , 85 S.Ct. 283 , 13 L.Ed.2d 222 (1964);
McGowan v. Maryland,
366 U.S. 420 , 81 S.Ct. 1101 , 6 L.Ed.2d 393 (1961);
Chatham v. Jackson,
613 F.2d 73 (5th Cir. 1980).
See generally
Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972). When no suspect criterion or fundamental interest or right is involved, the classification must nonetheless be reasonable, not arbitrary, and rationally and fairly related to a valid governmental objective.
McLaughlin v. Florida,
379 U.S. 184, 191 , 85 S.Ct. 283, 287 , 13 L.Ed.2d 222 (1964);
McGowan
v.
Maryland,
366 U.S. 420, 425-26 , 81 S.Ct. 1101, 1104-1105 , 6 L.Ed.2d 393 (1961). If the classification is based on suspect criteria or a fundamental right or interest is affected, the statute can be upheld only if it is precisely tailored to further a compelling governmental interest.
Shapiro v. Thompson,
394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969). This rigid, now traditional, two-tier approach requires the court to examine the right and interest implicated and the nature of the classification created in order to determine the appropriate level of judicial scrutiny.
20
A. The Interest Directly Affected: Education
In 1954 Chief Justice Warren stated: Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate a recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.
Brown v. Board of Education,
347 U.S. 483, 493 , 74 S.Ct. 686, 691 , 98 L.Ed. 873 (1954). In other opinions the Supreme Court has re-emphasized the importance of education to members of modern society and has endeavored to insure equal access to educational opportunities.
See, e. g., Ambach v. Norwick,
441 U.S. 68, 75-78 , 99 S.Ct. 1589, 1594-95 , 60 L.Ed.2d 49 (1979) (citing cases).
Nonetheless, the Supreme Court has stated that “[ejducation, of course, is not among the rights afforded explicit protection under our Federal Constitution.”
San Antonio Ind. School Dist. v. Rodriguez,
411 U.S. 1, 35 , 93 S.Ct. 1278, 1297 , 36 L.Ed.2d 16 (1973). The equal protection clause, however, does not serve only to protect those rights explicitly recognized in the body of our Constitution. “It is of course true that a law that impinges upon a fundamental
*557
right explicitly or implicitly secured by the Constitution is presumptively unconstitutional.
See Shapiro v. Thompson,
394 U.S. 618, 634, 638 [ 89 S.Ct. 1322, 1331, 1337 , 22 L.Ed.2d 600 ]; id., at 642-644 [ 89 S.Ct. at 1335-1337 ] (concurring opinion).”
Mobile v. Bolden,
446 U.S. 55, 76 , 100 S.Ct. 1490, 1504 , 64 L.Ed.2d 47 (1980).
In
Rodriguez
the Supreme Court considered a challenge to the method of financing public schools in Texas. That method relied heavily on local property taxes. Because of differences in taxable property values among the various school districts, substantial interdistrict disparities in per pupil expenditures resulted. The plaintiffs in
Rodriguez
claimed that the Texas system of financing public education operated to disadvantage children in poor school districts. Because only relative differences in spending .levels were involved, the court stated that “no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.”
Id.,
411 U.S. at 37,93 S.Ct. at 1299. The challenged financing provisions excluded no one from the public schools.
21
In
Rodriguez
no children were denied admission because their parents were unable to pay tuition.
The statute challenged in this action is very different. Many children received no education at all, either because the school districts in which they live have decided to deny them admission, or because they cannot afford the tuition required. Those school districts which opt to admit children receive proportionately less state support than those which exercise their prerogative to exclude undocumented children. Under section 21.031, Texas has decided to educate some children within its jurisdiction while absolutely depriving others of the benefit of education.
While holding that a system which contributes more funds for the education of some children than others does not infringe upon a fundamental interest, Justice Powell reserved the question whether absolute deprivation of educational opportunity might require strict judicial scrutiny. This case squarely presents the issue reserved by the Supreme Court in
Rodriguez :
what level of scrutiny should be applied when a statute absolutely deprives educational opportunities to some children within the state’s jurisdiction?
The Supreme Court noted in
Rodriguez
that no federal court has the authority to sit as a “super-legislature” and to create substantive constitutional rights.
Id.,
at 33 , 93 S.Ct. at 1296.
See Mobile v. Bolden,
446 U.S. 55, 76 , 100 S.Ct. 1490, 1505 , 64 L.Ed.2d 47 (1980);
Lindsey
v.
Normet,
405 U.S. 56, 74 , 92 S.Ct. 862, 874 , 31 L.Ed.2d 36 (1972);
Dandridge v. Williams,
397 U.S. 471, 485 , 90 S.Ct. 1153, 1161 , 25 L.Ed.2d 491 (1970). Nonetheless, when litigants present constitutional claims, the courts must endeavor to determine whether their arguments are supported by the Constitution. The presumptive validity which normally attaches to the actions of state legislatures is no cause to shirk that responsibility. Our system of adjudication requires courts to give their full attention to the parties’ assertions, regardless of their novelty. With that said, the court turns to the question whether persons have a fundamental interest in access to education when the state has undertaken to provide it to others.
Education is not among the rights afforded explicit protection by the Constitution. The factors which control the determination of what rights and interests are implicitly guaranteed have not been identified clearly. In
Harper v. Virginia Bd. of Elections,
383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (1966), the Court stated:
Long ago in
Yick Wo v. Hopkins,
118 U.S. 356, 370 [ 6 S.Ct. 1064 , 1071, 30 L.Ed. 220 ] [1866], the Court referred to “the political
*558
franchise of voting” as a “fundamental political right, because preservative of all rights.” Recently in
Reynolds v. Sims,
377 U.S. 533, 561-562 [ 84 S.Ct. 1362, 1381-1382 , 12 L.Ed.2d 506 ] [1964], we said, “Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”
Id.
at 667 , 86 S.Ct. at 1081-82 . According to this formulation, a right is fundamental when it is preservative of or substantially related to other basic civil and political rights which are guaranteed by the Constitution.
San Antonio Ind. School Dist. v. Rodriguez,
411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973), considered whether there was a sufficient connection between education and the freedom of speech or the right to vote. Although the district court found that education was a fundamental right or liberty, the Supreme Court held that it was not.
Id.
at 37 , 93 S.Ct. at 1299. The Supreme Court reasoned that courts could not presume “to possess either the ability or the authority to guarantee to the citizenry the most
effective
speech or the most
informed
electoral choice.”
Id.
at 36,93 S.Ct. at 1298.
Initially, the issue in this case is not whether a state must act affirmatively to maximize the ability of persons within its jurisdiction to exercise rights, but rather whether a state may choose to deny access to education to a discrete group of persons within its jurisdiction. The court has not been asked to insure that the education provided is commensurate for all, or to require the state to maintain an educational system. The plaintiffs seek only to participate in the educational system which has been established and made available to others. This claim does not require a measurement of the quantum of education that is constitutionally protected and it does not imply that any resource which might aid in the exercise of a guaranteed right must be provided. All that is at issue is whether education is so closely connected with guaranteed rights that a total deprivation of education should be closely scrutinized. Before discussing the relationship between education and freedom of speech, it is necessary to inquire whether the legal status of the plaintiffs makes consideration of the right to speak and to vote irrelevant. The court concludes that it does not.
First, there is little doubt that many of the plaintiffs, for good or for ill, are here to stay. The evidence demonstrates that approximately ten percent of the undocumented persons in this country will remain here as permanent settlers.
22
Many of the permanent settlers have relatives living in the United States and have come across the border while they await processing of their immigration documents. Additionally, the current proposals on amnesty could provide citizenship to many undocumented persons who are of school age.
See
H.R. 9531, § 2a, 95th Cong. 1st Sess. 1977; A. Bevilacqua, Legal Critique of President Carter’s Proposals on Undocumented Aliens, 23 Catholic Lawyer 286 (1978). Future proposals may increase the number of persons benefiting from amnesty. Presently, many of the un
*559
documented persons in this country enjoy a form of
de facto
amnesty. Federal harboring legislation, in large part as a result of pressure from Texan lobbyists, does its part to insure that employment opportunities continue to attract persons to cross the border. 8 U.S.C. § 1324 (a). The State of Texas, unlike other states, has rejected efforts to discourage the employment of undocumented workers. In 1979 and 1977, ■ legislation was introduced which would authorize sanctions against employers who knowingly hired undocumented persons. Neither bill was reported out of the applicable committee. The evidence received indicates that the Congress has not allocated sufficient funds to stem the tide of immigration from Mexico. This nation has set immigration quotas which are simply disregarded. It thus is likely that many of the undocumented persons in this country will remain here for years as a result of government inaction.
23
While they remain in the country they should not be denied the right to speak or to listen.
Cf.
1 C. Antieau, Modern Constitutional Law § 9.26 (1969).
24
The rights of man are not a function of immigration status. Nonetheless, it has been suggested that a person is not endowed with civil and political rights unless his “entry” into the United States was lawful.
The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed to all people within our borders. Such rights include those protected by the First and Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of the provisions acknowledges any distinction between citizen and resident aliens. They extend their inalienable privileges to all “persons” and guard against any encroachment on those rights by federal or state authority.
Bridges v.
Wixon,
326 U.S. 135, 161 , 65 S.Ct. 1443, 1455 , 89 L.Ed. 2103 (1945) (Murphy, J., concurring). This “entry” doctrine, properly understood, acknowledges the congressional authority to regulate immigration and the territorial limitation of governmental power to guarantee the enjoyment of rights.
The authority to admit or to exclude aliens is vested by the Constitution in the
*560
Congress. Questions relating to the admission of aliens often are politically based,
Hampton v. Mow Sun Wong,
426 U.S. 88 , 101 n. 21, 96 S.Ct. 1895 , 1904 n. 21, 48 L.Ed.2d 495 (1976), and thus inappropriate for. judicial resolution. The “entry” doctrine is tailored to defer to congressional procedures and decisions regarding admission and related conditions on immigration status. Thus a person who has been “paroled” into the United States pursuant to 8 U.S.C. § 1253 (h) has not “entered” the country for purposes of immigration laws; they still may be excluded without the protections incident to expulsion. Further, Congress has the power to exclude persons from this jurisdiction for reasons “which would be impermissible in the context of domestic policy.”
Pierre v. United States,
547 F.2d 1281, 1290 (5th Cir.),
vacated and remanded,
434 U.S. 962 , 98 S.Ct. 498 , 54 L.Ed.2d 447 (1977),
quoting, Fiallo v. Levi,
406 F.Supp. 162, 165 (E.D.N.Y.1975).
This useful doctrine protects congressional power to perform a congressional function. It has little use, however, when judicial functions are at issue. Accordingly, a determination of whether a person paroled in the United States may be deprived of free speech or equal protection of the laws should not revolve around whether he is subject to expulsion or exclusion. Whether a person physically within this country may exchange ideas should not depend on the nature of the proceedings used to challenge his continued presence here. Essentially, regarding questions not intrinsic to immigration status, the court should not utilize immigration doctrines.
25
Courts may decide the extent of the liberties and freedoms enjoyed by undocumented persons without treading on congressional control over immigration. This conclusion is bolstered by the nature of deportation proceedings against undocumented persons. Undocumented persons are entitled to due process before they may be expelled.
Leng May Ma v. Barber,
357 U.S. 185, 187 , 78 S.Ct. 1072, 1073 , 2 L.Ed.2d 1246 (1958);
Shaughnessy v. Mezei,
345 U.S. 206, 212 , 73 S.Ct. 625, 629 , 97 L.Ed. 956 (1953);
United States v. Murff,
260 F.2d 610 , 614 (2nd Cir. 1958). This is inconsistent with an approach which treats persons who have entered unlawfully like those who have not physically entered or those who have been paroled into the United States. Thus the court considers it incongruous to apply the “entry” doctrine in a manner which justifies denying first amendment rights to persons present in this country. Congressional power to exclude aliens does not imply state power to infringe the rights of undocumented persons within this jurisdiction to receive and to exchange ideas. If a substantial connection exists between first amendment rights and the absolute deprivation of education, the infringement of first amendment rights is not rendered inconsequential by the immigration status of the persons affected.
*561
Before considering the connection between education and first amendment freedoms, it must be recognized that the evidence demonstrates that the deprivation of education is absolute. As previously noted, many children are excluded from school and others have no ability to pay the tuition required by some school districts. Some make efforts to attend private schools, yet the evidence demonstrates that, even if the plaintiffs could afford tuition, the private schools could not absorb their numbers. The private schools in Texas are unable to accommodate all of the children who seek admission.
26
Other members of the plaintiff class attend alternative schools which have been established to care for some.undocumented school age children. The court finds these alternative schools do not provide a substitute for public education, even for those children who are fortunate enough to attend them. The alternative schools lack books, equipment, and adequate facilities. In one alternative school in Houston, only one of the four teachers is certified to teach; two of the four have high school educations.
27
In the other school about which evidence was presented, only one of the two teachers has any formal training as an educator.
28
Even if the schools were adequate at the present, there is no assurance that they will exist in' the future. Their funding is insufficient and its continuity is uncertain.
29
Finally, the alternative schools are too few in number and too small in size to serve all of the undocumented children. Many children are just left at home or in the streets.
30
Second, the evidence demonstrates what common sense suggests: children who are excluded from school suffer great harm. The court finds that the absolute deprivation of education prevents children from assimilating into society and from effectively exchanging information and ideas. Necessarily, this disability is magnified because of the initial language barrier which is left unbreached.
The experts who testified on the effect of the exclusion on children unanimously agreed that the damage caused was severe. Dr. Kenneth Matthews, a specialist in child psychiatry and a consultant to three school districts, testified that he has observed severe behavioral and emotional problems which result from exclusion from the school system and which could plague children all through their lives. He stated:
Children who are deprived of an education frequently suffer behavioral difficulties which can vary in extent from mild adjustment difficulties, through serious behavior difficulties, like hyperactivity, withdrawing behavior into fairly severe types of difficulties such as depression and breaks with reality.
[Wjhen a child is not allowed to be educated, . . there is a decrease in the cognitive function of the child and in the ultimate ability of that child to develop adult type thinking patterns.
The longer the exclusion goes, the more severe the effect would be.
31
Dr. Matthews identified formal education as one of three important variables in a child’s development and it is the only one directly affected by government. He testified that the family affords no substitute for formal education.
32
As a whole, Dr. Matthews’s testimony indicated that the excluded undocumented children he had examined will have severe difficulty adjusting in a society requiring reading and mathematical skills and that these children are also likely to become permanently dependent on governmental services.
Dr. Lucien Jones, a clinical psychologist, examined one of the named plaintiffs presently excluded from school. He found that she is behind her grade level by one to two years, and behind in general academic
*562
knowledge by three and one-half years. Moreover, he found the child withdrawn and indicated that if she continues to be excluded from school her isolation and alienation will only worsen.
33
Other testimony by educational experts corroborated the conclusions reached by Dr. Matthews and Dr. Jones. Dr. Thomas Carter stated that children excluded from school would be unable to acquire the formal literacy skills which permit progress within a society.
34
He emphasized the permanent nature of this disability; adults rarely learn to read or to write.
35
Dr. Brams, a sociologist specializing in the sociological, historical, and psychological foundations of education, testified about the connection between illiteracy and participation in the nation’s political processes. She explained that, because undocumented children come from families with low socioeconomic status, their need for education is greater. Without education, persons are unable to participate or even understand our form of government. Uneducated persons will be unaware of the opportunities and protections afforded by our society.
36
The court, having reviewed Dr. Brams’s qualifications as an expert witness, concludes that her opinion testimony should be given great weight.
37
The court also heard testimony from two young girls who had been denied admission to the public schools. Their description of the way they spent their days and of their efforts to educate themselves reinforces the expert testimony. The consequences of excluding only two children are dramatic. As this effect is magnified many times, it is possible to perceive the impact of the creation of a permanent underclass of persons who will live their lives in. this country without being able to participate in our society. Additionally, the expert testimony focused primarily on the impact of exclusion from school in the abstract. When this impact is combined with the language barrier which exists, the extent of the problem becomes apparent. The public school has been a mechanism to assimilate immigrants into our society. Uneducated children who eventually will be admitted into this country, will never be admitted into the society.
In Texas the provision of education is a state function and that a person may look to private schools instead does not alter this fact. Section 1 of Article VII of the Texas Constitution states: “A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” References to public education were contained in the Constitution of the Republic of Texas enacted in 1836. The first State Constitution adopted in 1845 represented the diversity of opinion then prevailing re
*563
garding the state’s duty to provide free public education to all children seeking it. The Constitution of 1869, however, settled the question and “required for the first time a uniform system of public free schools for the gratuitous instruction of all inhabitants between the ages of six and eighteen (art. IX, sec. 1) with compulsory attendance (art. IX, sec. 5) and a highly centralized system of school administration (art. IX, sec. 3).” Vernon’s Ann.Tex.Const, art. VII, sec. 1 (1876) (interpretative commentary). In 1884, with the enactment of the school law, the idea of universal public education became completely accepted in Texas.
Current statutory provisions reflect the State’s control of education. One need only cite the compulsory attendance law, Tex. Educ.Code Ann. title 2, Sec. 21.032 (Vernon’s 1972), to illustrate the State’s involvement in education. The State’s ability to compel attendance reflects the social recognition of the governmental interest in educating all persons within the jurisdiction.
Other areas which may be occupied by state activity do not share with education the connection to the essence of government. If the state operates a utility or public transportation in the locale, those activities constitute a government invasion of or supplement to the private sector, not essential state functions.
The provision of education also is quite dissimilar from “the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.”
Mathews v. Diaz,
426 U.S. 67, 80 , 96 S.Ct. 1883, 1891 , 48 L.Ed.2d 478 (1976). Additionally, the State’s educational system cannot properly be classified within “the area of economics and social welfare. .
Dandridge v. Williams,
397 U.S. 471, 485 , 90 S.Ct. 1153, 1161 , 25 L.Ed.2d 491 (1970). When a state enters an area occupied by the private sector and endeavors to assist persons to obtain food, shelter, or medicine, there is no requirement that the state create classifications which are perfect. A state may undertake charitable functions without undue concern about making distinctions which are too fine or too imprecise. Such determinations are replete with “conflicting claims of morality and intelligence . raised by opponents and proponents of almost every measure. . . .”
Dandridge v. Williams, supra,
at 487, 90 S.Ct. at 1162 . The legislatures are entrusted to resolve conflicts concerning the boundaries of state involvement in these areas.
Judicial deference, however, should be limited in areas which are occupied by state functions. Where the state traditionally has been the provider, discrimination wifh respect to access to a service should be disfavored when there is a close connection between the particular service and the implicitly or explicitly protected constitutional right. In effect, this is another way of saying that with respect to a service which is provided as an essential function of government and not by the private sector, exclusion from access to that service will result in absolute deprivation. This should be scrutinized carefully.
One reason supporting the Supreme Court’s decision in
Rodriguez
not to classify education as a fundamental interest was that “the logical limitations” of the plaintiffs’ theory were “difficult to perceive.”
Rodriguez, supra,
411 U.S. at 37, 93 S.Ct. at 1299 . No such open ended theory is involved in this case. When only
access to
education is deprived, holding that a fundamental interest is involved does not occasion an unprecedented upheaval which would terminate state control over education. An interest in a governmental process or program may be deemed fundamental even though the government cannot be required to assure or even to determine what constitutes enjoyment of that process or program. An analysis of the extent of the right to vote is instructive.
The right to vote requires quantitative and not qualitative protection.
38
Thus,
*564
while “a citizen has a constitutionally
protected right,
to participate in elections on an equal basis with other citizens in the jurisdiction,”
Dunn v. Blumstein,
405 U.S. 330, 336 , 92 S.Ct. 995, 1000 , 31 L.Ed.2d 274 (1972) in states that have adopted the electoral process, the courts do not sit to insure “the most
informed
electoral choice.”
San Antonio Ind. School Dist. v. Rodriguez,
411 U.S. 1, 36 , 93 S.Ct. 1278, 1298 , 36 L.Ed.2d 16 (1973) . The plurality opinion in
Mobile v. Bolden,
446 U.S. 55 , 100 S.Ct. 1490 , 64 L.Ed.2d 47 (1980), illustrates the principle that the recognition of access to the ballot as a fundamental right does not imply a right of equality of result. The only occasion that makes the equality of result actionable is when such inequality constitutes invidious discrimination because of the nature of the classification used or the group affected. The “right to participate in elections on an equal basis with other qualified voters” does not herald a revamping of the political system. The “right to have an equally effective voice” in the election of representatives is impaired where representation is not apportioned substantially on the basis of population. Such an inquiry is objective and quantitative. It provides no license for the court to embark on subjective, qualitative analyses of the effect of elections on distinctive groups or to guarantee the right to representation. The mere presence of a voting rights issue does not compel strict scrutiny.
Holt Civic Club v. City of Tuscaloosa,
439 U.S. 60 , 99 S.Ct. 383 , 58 L.Ed.2d 292 (1978);
Town of Lockport v. Citizens for Community Action at the Local Level, Inc.,
430 U.S. 259 , 97 S.Ct. 1047 , 51 L.Ed.2d 313 (1977);
Sayler Land Co. v. Tulare Lake Basin Water Storage District,
410 U.S. 719 , 93 S.Ct. 1224 , 35 L.Ed.2d 659 (1973);
Creel v. Freeman,
531 F.2d 286 (5th Cir. 1976),
cert. denied,
429 U.S. 1066 , 97 S.Ct. 797 , 50 L.Ed.2d 784 (1977); Note, 93 Harv.L.Rev. 1491 (1980).
See also Clark v. Town of Greenburgh,
436 F.2d 770 (2nd Cir. 1971). Finally, classifying access to the ballot as a fundamental right does not require the states to make all government offices elected ones. Once the state has granted the franchise, however, restrictions on the right to vote elicit strict scrutiny.
Harper v. Virginia Board of Elections,
383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (1966).
Similarly, recognition of a right to access to education need not imply a right to equality of result, thus undercutting the holding in
Rodriguez .
Where inequality of educational opportunities results from racial animus, such discrimination will be struck down upon proof of racially discriminatory intent or purpose.
Brown v. Board of Education,
347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954). The right to attend school on an equal basis with other children living in the locale does not require revamping the educational system. Any inquiry into the exclusion of children from public education can be objective and quantitative. Recognition of education as a fundamental right does not mean that the presence of educational issues in a lawsuit will require subjective, qualitative analysis concerning the effect of education on all discrete groups.
In summation, the court concludes that strict judicial scrutiny should be applied to determine whether the statute violates the equal protection clause. The bases for this conclusion are the following: the statute absolutely deprives undocumented children of access to education thereby causing them great harm; there is a direct and substantial relationship between education and the explicitly guaranteed right to exchange ideas and information; and, the provision of education is not a social or economic policy but a state function. Additionally, recognizing the right to access to education when it is being provided to others does not imply a right to equal enjoyment of education.
*565
B. The Classifications Created by Section 21.031
1.
Undocumented Aliens
Section 21.031 on its face creates a classification of undocumented
39
children who are treated differently than all other children within the jurisdiction. The court must determine not only what level of scrutiny should be applied to the use of such a classification, but also whether any scrutiny is due. While the plaintiffs claim that discrimination against undocumented aliens is inherently suspect, the State claims that it is permissible
per se.
With respect to the plaintiffs’ argument, the court concludes that states may treat citizens and resident aliens differently than undocumented aliens, provided that such differences are reasonably related to a valid governmental objective and do not affect fundamental rights. If fundamental rights are affected, state treatment of undocumented aliens, like state treatment of other persons within its jurisdiction, is justified only if it furthers a compelling governmental interest.
In
Graham v. Richardson,
403 U.S. 365, 372 , 91 S.Ct. 1848, 1852 , 29 L.Ed.2d 534 (1971), the Supreme Court stated that “classifications based on alienage . . . are inherently suspect and subject to close judicial scrutiny.” The equal treatment of resident aliens is based on two premises. First, the federal decision to admit resident aliens to permanent residence required “a general policy that all persons in this country shall abide in any state ‘on an equality’ of legal privileges with all citizens under non-discriminatory laws.”
Takahashi v. Fish & Game Comm’n.,
334 U.S. 410, 420 , 68 S.Ct. 1138, 1143 , 92 L.Ed. 1478 (1948). Second, in
Graham v. Richardson, supra,
the court stated that “[ajliens as a class are a prime example of a discrete and insular minority . for whom . . heightened judicial solicitude is appropriate.”
Id.,
403 U.S. at 372 , 91 S.Ct. at 1852,
citing United States v. Carolene Products Co.,
304 U.S. 144 , 152-53 n.4, 58 S.Ct. 778 , 783-784 n.4, 82 L.Ed. 1234 (1938). Undocumented aliens are “saddled with such disabilities, ... subjected to such a history of purposeful unequal treatment [and] relegated to such a position of political powerlessness ...” that treating them as more discrete and insular than resident aliens may be justified.
40
Nonetheless, undocumented aliens are not entitled to the privileges conferred by admission to the country. The federal decision to admit resident aliens would be frustrated by state restrictions on their activity.
Truax v. Raich,
239 U.S. 33 , 36 S.Ct. 7 , 60 L.Ed. 131 (1915). The federal government has made no such decision concerning undocumented aliens.
*566
Focus on the
Carolene
Products
41
rationale, suggests that undocumented aliens are a class needing protection from the majority and the political process. The political process has made insufficient efforts to exclude undocumented persons from the country and while they are here the majority is quite willing to exploit them for their cheap labor. Additionally, the concerns of state governments normally are not related to the alienage or legal status of residents.
See, e. g., Graham v. Richardson,
403 U.S. 365 , 91 S.Ct. 1848 , 29 L.Ed.2d 534 (1971). State authority to classify based on a person’s status as a citizen is confined within “narrow limits.”
Sugarman v. Dougall,
413 U.S. 634 , 93 S.Ct. 2842 , 37 L.Ed.2d 853 (1973). Accordingly, the normal deference given state legislation over matters which are the usual subjects of state legislation is not justified when state classifications are based on citizenship, or when no special attribute of citizenship is relevant.
42
Nonetheless, the court concludes that undocumented aliens are not a suspect class.
The guarantee of equal protection is a restraint on the federal government as well as state governmental power.
43
There is little question that the federal government can treat undocumented aliens differently from citizens or resident aliens. The Supreme Court explained in
Mathews v. Diaz,
426 U.S. 67 , 96 S.Ct. 1883 , 48 L.Ed.2d 478 (1976), that the federal government could make legitimate distinctions between citizens and resident aliens because of the governmental interest in regulating immigration. The courts have not required the federal government to show that the distinctions they make are precisely tailored to the exercise of the power to regulate immigration and naturalization.
44
Rather, federally drawn distinc
*567
tions between aliens and citizens are upheld where there is a legitimate basis for presuming that the distinction was actually intended to serve an overriding national interest.
Hampton v. Mow Sun Wong,
426 U.S. 88, 103 , 96 S.Ct. 1895, 1905 , 48 L.Ed.2d 495 (1976). Accordingly, as a matter of equal protection analysis, the federal power to regulate immigration is sufficient to justify federal discrimination against aliens. Further, the states’ ability to make such distinctions where their interests are apparent suggests that the
Truax-Takahashi
rationale should control over the
Graham
Court’s reliance on
Garolene Products,
at least when considering whether strict judicial solicitude should be extended to undocumented aliens.
45
This does not imply that classifications involving undocumented aliens are permissible by their very nature or that the equal protection clause is inapplicable to a class of undocumented persons. Analogous decisions by the Supreme Court, the language of the fourteenth amendment, and holdings of other federal courts require that state classifications based on immigration status be subjected to judicial scrutiny.
Although the Supreme Court has never addressed squarely the applicability of the equal protection clause to undocumented aliens, decisions construing the fourteenth amendment do not suggest that the guarantee of equal protection is reserved to citizens or resident aliens. It is established that both the due process and equal protection clauses apply to resident documented aliens.
In re Griffiths,
413 U.S. 717 , 93 S.Ct. 2851 , 37 L.Ed.2d 910 (1973);
Sugarman v. Dougall,
413 U.S. 634 , 93 S.Ct. 2842 , 37 L.Ed.2d 853 (1973);
Graham v. Richardson,
403 U.S. 365 , 91 S.Ct. 1848 , 29 L.Ed.2d 534 (1971);
Takahashi v. Fish & Game Comm’n.,
334 U.S. 410 , 68 S.Ct. 1138 , 92 L.Ed. 1478 (1948);
Wong Wing v. United States,
163 U.S. 228 , 16 S.Ct. 977 , 41 L.Ed. 140 (1891);
Yick Wo v. Hopkins,
118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886). The Supreme Court stated in
Wong Wing
that the equal protection clause applied “to all persons within the territorial jurisdiction” of the United States, 163 U.S. at 238 , 16 S.Ct.' at 981. In
Yick Wo v. Hopkins, supra,
the Supreme Court stated that
The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: “Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.
118 U.S. at 369 , 6 S.Ct. at 1070 . Inasmuch as undocumented aliens are protected by the due process clause,
Mathews v. Diaz,
426 U.S. 67, 77 , 96 S.Ct. 1883, 1890 , 48 L.Ed.2d 478 (1976), the court can conceive of no reason to conclude that they are unprotected by the equal protection clause
46
*568
The language of the amendment itself affords no basis for the proposition that undocumented aliens physically present within the state may not invoke the equal protection clause. Undocumented aliens, like other human beings, are “persons.” The question, then, is whether an undocumented alien is a “person within the jurisdiction” of the state. The court concludes that the qualification “within the jurisdiction” of the state should be given its common, everyday meaning. Accordingly, undocumented children who reside in Texas and are subject to its laws are “within the jurisdiction” of Texas. Both the legislative history and the cases construing the qualification confirm this conclusion.
There is no indication that the framers of the fourteenth amendment intended to limit which individuals located within the United States were “persons” for either due process or equal protection purposes. In fact, one of the sponsors of the amendment said:
The last two clauses of the first section of the amendment disables a State from depriving not merely a citizen but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the state. .
[I]t will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction.
71 Cong.Globe 2766 (May 23,1866). In view of this legislative history which groups the two clauses, there is no reason to interpret “any person” under the due process clause different from “any person within its jurisdiction” under the equal protection clause.
This does not mean that the language is meaningless. It represents an inherent limitation on governmental power. In
Blake v. McClung,
172 U.S. 239 , 19 S.Ct. 165 , 43 L.Ed. 432 (1899), the Supreme Court held that a Virginia corporation was not a person within the jurisdiction of Tennessee. The Court noted that the equal protection clause
manifestly relates only to denial by the state of equal protection to persons “within its jurisdiction.” Observe that the prohibition against the deprivation of property without due process of law is not qualified by the words “within its jurisdiction,” while those words are found in the succeeding clause relating to the equal protection of the laws. The Court cannot assume that those words were inserted without any object, nor is it at liberty to eliminate them from the Constitution and to interpret the clause in question as if they were not to be found in that instrument. Without attempting to state what is the full import of the
*569
words, “within its jurisdiction,” it is safe to say that a corporation not created by Tennessee, nor doing business there under conditions that subjected it to process issuing from the courts of Tennessee at the instance of suitors, is not, under the above clause of the Fourteenth Amendment, within the jurisdiction of that state.
Id.
at 260-61 , 19 S.Ct. at 173-174 . To recognize the distinction, however, is not to register approval for discrimination against non-residents. Rather it is a recognition that
Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities,-each responsible for its own laws establishing the rights and duties of persons within its borders.
Missouri ex. rel. Gaines v. Canada,
305 U.S. 337, 350 , 59 S.Ct. 232, 236 , 83 L.Ed. 208 (1939).
The reason for limiting the reach of state legislation is obvious: it necessarily is limited to objects within its jurisdiction.
A most extraordinary condition would exist if the legislation of the states properly confined within its appropriate sphere were to be held invalid because it does not extend to and embrace objects beyond their jurisdiction. A legislative impasse would be created. Neither the nation nor the states could move forward; the former because power over matters purely of state concern is not conferred by the Constitution, and the latter because . . . they can effect none if they cannot effect equally all within and without their jurisdiction.
Dolley v. Abilene Nat. Bank,
179 F. 461, 463-64 (8th Cir. 1910),
aff’d,
228 U.S. 1 , 33 S.Ct. 409 , 57 L.Ed. 707 (1913). Persons physically present within the state stand in such relation to the state to bring them “within its jurisdiction.” Thus, the equal protection clause “does not prohibit legislation which is limited, either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that
all persons subjected to such legislation
shall be treated alike under like circumstances and conditions, both in the privilege conferred and the liabilities imposed.”
Magoun v. Illinois Trust & Savings Bank,
170 U.S. 283, 293 , 18 S.Ct. 594, 598 , 42 L.Ed. 1037 (1898);
Hayes v. Missouri,
120 U.S. 68, 71-72 , 7 S.Ct. 350, 351-352 , 30 L.Ed. 578 (1887).
See also Home Insurance Co. v. New York,
134 U.S. 594 , 10 S.Ct. 593 , 33 L.Ed. 1025 (1890). The undocumented alien children are persons subjected to the legislation which is at issue in this action. They are physically present within the borders of Texas.
Shames v. State of Nebraska,
323 F.Supp. 1321, 1333, 1338 (D.Neb.1971).
47
Other federal courts already have held that the equal protection clause protects undocumented aliens. In
Bolanos v. Kiley,
509 F.2d 1023, 1025 (2nd Cir. 1975), Judge Friendly stated: “We can readily agree that the due process and equal protection clauses of the Fourteenth Amendment apply to aliens within the United States . and even to aliens whose presence here is illegal.”
Accord Holley v. Lavine,
529 F.2d 1294 (2nd Cir.),
cert. denied,
426 U.S. 954 , 96 S.Ct. 3181 , 49 L.Ed.2d 1193 (1976);
United States v.Barbera,
514 F.2d 294 , 296 n.3 (2nd Cir. 1975);
Doe v. Plyler,
458 F.Supp. 569, 579 (E.D.Tex.1978).
See also Hernandez v. Houston Ind. School Dist,
558 S.W.2d 121 (Tex.Civ.App.-Austin 1977, writ ref’d n. r. e.).
*570
Accordingly, the equal protection clause protects undocumented aliens because they are “persons within the jurisdiction” of the state. State discrimination against illegal aliens is not necessarily permissible, and when a fundamental right is infringed by that discrimination the state must provide a compelling justification.
48
2.
Exclusion of Undocumented Children on the Basis of Wealth
Within the plaintiff class there are many children who are unable to attend school because they cannot afford the tuition. Section 21.031 does not provide for tuition, but the State has authorized the admission of undocumented children upon the payment of tuition.
49
The statute discriminates against children on the basis of wealth because it excludes children who cannot afford the tuition imposed.
50
In
San Antonio Ind. School Dist. v. Rodriguez,
411 U.S. 1 , 25 n.60,- 93 S.Ct. 1278, 1292, n.60 , 36 L.Ed.2d 16 (1973), the Supreme Court stated that
If elementary and secondary education were made available by the State only to those able to pay a tuition assessed against each pupil, there would be a clearly defined class of “poor” people— definable in terms of their inability to pay the prescribed sum — who would be absolutely precluded from receiving an education. That case would present a far more compelling set of circumstances for judicial assistance than the case before us today.
That set of circumstances is presented by this case.
Several of the named plaintiffs in these actions have been prevented from attending the public schools because they could not afford tuition. In addition, there is no evidence of any children being admitted to public schools in those districts which condition admission upon the receipt of tuition.
51
This is not surprising. The evidence is quite clear that the parents of undocumented children are, for the most part, indigent. A study of the income characteristics of parents of undocumented children in the Houston area found that their mean hourly wage was $4.17.
52
Another study conducted in 1978 found that the mean hourly wage for undocumented persons was $2.75.
53
The U. S. Civil Rights Commission has stated that: “The situation in South Texas for the undocumented person . resembles the early slavery in the United States.”
54
It is worth noting at this point that undocumented aliens contribute to government revenues to the same extent as others with similar income. Nearly all of the recent studies which discuss the contribu
*571
tions of undocumented aliens to local, state and federal tax bases strongly suggest that this group pays more into the tax structure than they take out through social services. Due largely to their clandestine existence and the fear of being apprehended, undocumented aliens are one of the least likely groups to apply for social services. The public school education in Texas is financed primarily through sales taxes and
ad valorem
property taxes. Undocumented aliens are unable to escape the payment of those taxes; they buy consumer goods and they indirectly contribute property tax revenue through the payment of rent.
55
The Supreme Court decisions concerning discrimination on the basis of wealth give special solicitude to indigents when two conditions are present. First, there must be a distinct class of disadvantaged poor who are absolutely deprived of access to a state benefit or service. Second, the state benefit or service must not be within the “area of economics and social welfare.”
United States v. Kras,
409 U.S. 434, 446 , 93 S.Ct. 631, 638 , 34 L.Ed.2d 626 (1973). Both of these conditions are satisfied in this case. The class of undocumented children excluded by the tuition requirement is “definable in terms of their inability to pay the prescribed sum . . . .”
Rodriguez, supra,
411 U.S. at 25 n.60, 93 S.Ct. at 1292 n.60. This is not a question of absolute equality or precisely equal advantages. The argument here is that the lack of personal resources occasioned an absolute deprivation of the desired benefit.
It has already been noted that education cannot be considered a social or economic program.
56
Rather, “education is perhaps the most important function of the state and local government.”
Brown v. Board of Education,
347 U.S. 483, 493 , 74 S.Ct. 686, 691 , 98 L.Ed. 873 (1954). Examination of those cases in which the Supreme Court has held that wealth based classifications were unconstitutional reveals that the personal and social interests deserving of protection were similar to education. Conversely, in those cases in which the absolute denial of an interest did not compel special solicitude, the interests were dissimilar from education.
The Supreme Court has employed strict scrutiny when considering laws limiting access to the franchise and to the state criminal justice system. In
Harper v. Virginia Board of Elections,
383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (1966), the Supreme Court held that a state poll tax was inconsistent with the equal protection clause. The Court stated that since “[wjealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process,” the poll tax was based on “a capricious or irrelevant factor.” 383 U.S. at 668 , 86 S.Ct. at 1082 . In
Bullock v. Carter,
405 U.S. 134 , 92 S.Ct. 849 , 31 L.Ed.2d 92 (1972), the Court held that the Texas filing-fee requirement for primary elections was impermissible. Access to the ballot, like access to the schools, is controlled by the state and there is no alternative reasonably available.
57
Both voting and education are central to the concept of Jeffersonian democracy. Allowing qualified persons to vote and children to attend schools does not redistribute wealth or equalize the benefits available in our society. They both enable, however, persons to participate and to integrate into the social and political structure.
*572
Cases involving the issue of equal justice for the poor parallel this case in that the state law created an absolute deprivation. In
Griffin v. Illinois,
351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956), the Court considered a state law. which prevented an indigent criminal defendant from obtaining a transcript for use on appeal. There was no adequate substitute for stenographic transcripts. The Court noted that the ability to pay bears no rational relationship to guilt or innocence, 351 U.S. at 17 , 76 S.Ct. at 589 and held the state law unconstitutional. Similarly, in
Douglas v. California,
372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 (1963), the Court held that defendants who could not pay for counsel from their own resources and who had no other way of gaining representation on direct appeals were denied equal protection of the law.
Equal protection does not imply the abolition of differences created by wealth. Enabling a person to have access to a necessary service or program neither assures him the same access which others have nor requires that any burden imposed be proportioned to his individual circumstances. Thus,
Douglas
does not stand for the proposition that indigents must be provided with the best lawyers. This principle is best illustrated by
Williams v. Illinois,
399 U.S. 235 , 90 S.Ct. 2018 , 26 L.Ed.2d 586 (1970), and
Tate v. Short,
401 U.S. 395 , 91 S.Ct. 668 , 28 L.Ed.2d 130 (1971). In
Williams v. Illinois
the Court held that a person could not be imprisoned because he was unable to pay a fine. In
Tate v. Short
the Court stated that
the same constitutional defect condemned in
Williams
also inheres in jailing an indigent for failing to make immediate payment of any fine, whether or not the fine is accompanied by a jail term and whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine. In each case, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.
401 U.S. at 398 , 91 S.Ct. at 671,
quoting, Morris v. Schoonfield,
399 U.S. 508, 509 , 90 S.Ct. 2232, 2233 , 26 L.Ed.2d 773 (1970) (per curiam). The equal protection clause does not require “that fines must be structured to reflect each person’s ability to pay in order to avoid disproportionate burdens.”
San Antonio Ind. School Dist. v. Rodriguez,
411 U.S. 1, 22 , 93 S.Ct. 1278, 1290 , 36 L.Ed.2d 16 (1973). Like
Williams
and
Tate ,
the undocumented children do not claim that the burden is heavier because of their indigency. They are prevented from attending school because they are unable to pay.
In cases after
Harper v. Virginia Board of Elections,
383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (1966), the Supreme Court has carefully scrutinized statutes which would not have burdened indigents but for their complete inability to pay. In a case like
Rodriguez ,
the circumstances are quite different. The plaintiffs in that case claimed that they received a poorer quality education because they were less wealthy. The states are not required to insure absolute equality which exists only hypothetically. On the other hand, absent sufficient justification, states may not permit some persons to benefit from certain state services and to be free from certain burdens while others are barred completely because they cannot pay.
The form of “wealth discrimination” upheld in
Rodriguez
is not encountered in this case. Accordingly, the court concludes that a state law which operates to deprive absolutely children of education when they are indigent should be scrutinized with care.
3.
Innocent Children
Section 21.031 penalizes children because of acts committed by their parents.
58
In
Doe v. Plyler,
458 F.Supp. 569 (E.D.Tex. 1978), Judge Justice stated:
*573
A more exacting scrutiny of the Texas law also appears warranted when consideration is given to the decisions of the Supreme Court .refusing to penalize and stigmatize children who are not in a position to prevent the wrongful acts of their parents. As Mr. Justice Powell said of laws disfavoring illegitimate children:
[Y]isiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the . . . child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.
Weber v. Aetna Casualty and Surety Company,
406 U.S. 164,175 , 92 S.Ct. 1400, 1406 , 31 L.Ed.2d 768 (1972) (footnote omitted).
See also St. Ann v. Palisi,
495 F.2d 423, 425 (5th Cir. 1974) (invalidating school board’s decision to suspend two children from the school because their mother had assaulted an assistant principal, on the ground that “[fjreedom from punishment in the absence of
personal
guilt is a fundamental concept in the American scheme of justice”). While the undocumented minor plaintiffs are of course legally culpable and subject to deportation, they can hardly be held morally responsible for their presence here. Many of them were hardly more than infants when they arrived in the United States, nor did they participate in their parents’ decision to emigrate; consequently they deserve no additional burdens or penalties.
Id.
at 582. The court finds that this analysis is supported by the evidence received in this proceeding.
Undocumented children do not enter the United States unaccompanied by their parents. Like other young children, they seldom have the power to choose their place of residence. For example, the court heard testimony from a young girl who entered the United States when she was five months old. Although the girl’s father is a United States citizen and the child’s mother is a documented resident alien, the child has no documents. She is, of course, document-able. Nonetheless, due to her difficulty receiving her Mexican birth certificate, she remained undocumented and was excluded from school. The young girl previously had attended school in New Jersey and Missouri. Her eight year old brother was born in the United States and attends school.
59
There also was testimony from another undocumented child who has siblings who were born in the United States and thus are citizens.
60
Any argument that the family should be treated as a unit when moral culpability is assessed is undercut by these facts. Those who were born a few years prior to the unlawful entry are no more responsible for it than those born shortly afterwards.
Cases involving classifications which punish children for acts committed by their parents are not subject to strict judicial scrutiny. They nevertheless are invalid if they are not substantially related to permissible state interests.
Lalli v. Lalli,
439 U.S. 259, 264 , 99 S.Ct. 518, 522 , 58 L.Ed.2d 503 (1979). This formulation of the rational basis test will not accept any conceivable justification for a statute. The legislative means as well as the ends are subject to examination.
4.
National Origin
It is suggested that section 21.031 is part and parcel of an historical pattern of discrimination against Hispanics in Texas. It is argued that Mexican-Americans residing in Texas will perceive excluding undocumented aliens from school as more discrimination against Hispanic people. Suffice it to say, the court concludes that there has been invidious discrimination in Texas against persons on account of their national origin. There has also been discrimination against persons on account of their illegal presence in this country. The statute, however, creates a classification based loosely
*574
on immigration status, not national origin. State legislation discriminating against a class of undocumented persons is permissible if it is sufficiently justified. The amount of justification required should not vary depending on the citizenship of an undocumented person. It also should not be dependent on the history within a particular state regarding discrimination against citizens of a particular national origin. Thus, a state which never has discriminated against Mexican-Americans bears no lesser burden of justification for discrimination against Mexican undocumented persons. Conversely, the court concludes that the State of Texas could not pass legislation which would be invalid as to Mexican citizens, but valid as to other aliens. The court cannot condemn section 21.031 on the basis of
Yick Wo v. Hopkins,
118 U.S. 356 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886). Although the State generally monitors compliance with the section by examining the immigration status or citizenship of Spanish-surnamed persons, there is no evidence that non-Hispanic aliens are intentionally treated differently.
C. State Rationale For Section 21.031
In defense of its decision to exclude undocumented children from the public schools, the State presented evidence concerning (1) the number of undocumented children in Texas; (2) the financial impact of educating these children on state and local resources; and (3) the impact of educating undocumented children on the quality of education and on compliance with desegregation orders. The State contends that the equal protection clause does not apply to undocumented aliens and thus that discrimination against members of that class is permissible no matter how invidious. Nonetheless, the State offered evidence which it believes demonstrates that section 21.031 is supported by a rational basis.
At the outset, the evidence demonstrated that prior to the passage of the amendment to section 21.031 in 1975, the State never had attempted to determine the number of undocumented children attending Texas public schools, nor the impact of educating these children upon the school districts. The current Commissioner of the Texas Education Agency was the Deputy Commissioner at the time section 21.031 was enacted and he was then primarily responsible for its implementation. He testified that no one from the Texas Legislature contacted anyone at the Texas Education Agency prior to the amendment. No studies were conducted to determine the number of undocumented children throughout the state, or the fiscal impact of educating them. No one attempted to compare the amount of taxes paid by undocumented aliens with the cost of educating undocumented children.
61
Since the law was amended, the State has done very little to monitor the implementation of the statute by the local school districts. There is no evidence that the State has ever determined the number of local school districts which are excluding undocumented children, the number of school districts that charge tuition, or the number of school districts that provide tuition-free education to all children within their jurisdiction. Because this basic information has not been gathered, no effort has been made to determine the number of children actually affected by section 21.031. There is no data which show that the academic performance of students has improved since undocumented children were excluded.
62
Indeed, the evidence in this case indicates that the State has been concerned primarily with the impact and number of documented Mexican children. With the exception of a study commissioned in connection with this case, the State-sponsored studies have concentrated on the characteristics and number of documented immigrant children. The studies have shown a steadily increasing number of immigrant children, primarily in the border areas. In addition, the studies indicate that most of the children require bilingual education and that the influx of
*575
these children has created a problem in the border districts that have limited space to house new students.
63
Funds provided to the local school districts by the State may not be used for construction
64
and districts with relatively small amounts of taxable property and growing student populations have difficulty financing new structures. This problem, however, is not shared by school districts with decreasing student populations and adequate taxable property.
The current conditions afflicting some border school districts result in part from the influx of documented aliens. These new residents offset the decline in school age population which is being experienced elsewhere in the State. Border school districts are not in danger of being affected by undocumented children who reside in Mexico attending the public schools in Texas. In 1977, the Texas Legislature amended section 21.031 by adding subsection (d) which requires a child not living with a parent or guardian to establish that “his presence in the school district is not for the primary purpose of attending the public free schools.” This provision was designed in part to prohibit children whose parents reside in Mexico from being able to establish residence in the United States by living with another family.
65
1.
The Number of Undocumented Children in Texas
The State’s assumption concerning the potential impact of undocumented children on the public schools is based on an estimate of the number of undocumented children presently residing in Texas. It must be emphasized that only the current figure is of concern; no evidence was offered which implied that the number of undocumented children living in Texas and attending the schools in 1975 had an impact on public education. Thus, the State does not argue that the number was so great in 1975 that it was necessary to exclude undocumented children, but that once they had been excluded there are too many to include them once again.
66
In preparation for the trial of this case the State attempted to calculate the number of undocumented children residing in the State. Experts in the area are in general agreement that there is no indisputable or acceptable estimate of the undocumented alien population in the United States, much less the number of undocumented alien children.
67
This is not surprising given the difficult methodological problems inherent in attempting to enumerate a clandestine population. It is in this context that the State’s estimate must be analyzed.
The State’s study was conducted by Mark Flolid, an employee of the Dallas firm, Criterion Analysis. His study (the Criterion Study)
68
attempted to estimate the potential number of undocumented children residing in Texas. The first step was to calculate the “documented Hispanic school age population.” Assuming that only documented Hispanics are in the school system, Criterion obtained their documented “figure” by totalling the Hispanic students in public schools, private schools, and those reported as “school leavers.” In the second step, Criterion subtracted the “documented” Hispanic school age population from the census figure for all Hispanics in Texas aged five to seventeen. The residual obtained was called the “potential undocumented Hispanic school age population.”
*576
Criterion attempted to verify the assumption that the residual represented undocumented children by applying the same methodology to the total school age population of all races. Because the residual for all races was not substantially larger than the residual for Hispanics, Criterion concluded that the methodology in fact calculated undocumented children.
69
The major shortcoming of this analysis is that it is actually an estimate of the number of children not enrolled in school, rather than of undocumented children. To assume that children not enrolled in school are undocumented is simply unsound.
70
Two aspects of this study demonstrate the error of this assumption. First, under the methodology used in the Criterion study, the residual “potential undocumented” Hispanic population in 1970 is found to be 80,115.
71
As most school districts admitted undocumented children prior to 1975, there is no basis for concluding that the children not enrolled in school in 1970 were undocumented; the 80,000 Hispanic children purportedly out of school are just as likely to be documented as undocumented. Moreover, the analysis inexplicably does not demonstrate any dramatic increase of Hispanic children not enrolled in school after implementation of the exclusionary statute.
72
Thus, the analysis demonstrates no correlation with what one would logically expect to be the pattern caused by the implementation of section 21.031 in 1975.
Second, the study uses two different data bases resulting in an inflated estimate of the number of Hispanics out of school. The 1970 census estimate of total enrollment in Texas public schools for all races is comparable to the TEA figure. However, when broken down ethnically, the census count shows more Hispanics enrolled and fewer blacks and whites than do the TEA data.
73
This discrepancy in the count of Hispanics between the census and the TEA data is probably due to the use of a more limited Hispanic identifier by TEA.
74
Inasmuch as the study subtracted the TEA data, with its lower estimate of Hispanics, from the census data, with its higher estimate, to determine the number of undocumented children, the figure was necessarily high.
75
The unsoundness and unreliability of Criterion’s methodology is further demonstrated when one applies the major assumption of the study to the blacks and whites in Texas. Analysis of either census enrollment data, or of adjusted TEA data, results in the rather bizarre and untenable conclusion that there are at least 100,000 undocumented black and white children in Texas.
76
*577
Even if one accepts the flawed assumption at the heart of the study, four additional problems result in the inflated estimate of the number of undocumented children in Texas. First, Criterion’s analysis of school leavers assumed that children under seventeen who dropped out would re-enroll because of state compulsory attendance laws. TEA’s own report on school leavers, however, defines a school leaver as someone who “left school prior to graduation and to the best of the district’s knowledge will not enroll in another school.” Under Criterion’s analysis, documented school-age children who leave school and do not return are counted in the residual “potential undocumented” children.
77
Second, the study neglected to take into account the documented five and six year olds who have not yet enrolled in school. A breakdown by age and census data shows that most of the children not enrolled in school for each ethnic group are five or six years old. This error would accordingly reduce the number of “potential undocumented” school children by at least one half. The study used two independent data bases which did not measure children in the same age brackets. The census data covered only ages five to seventeen, while TEA enrollment data include children over and under these age groups.
78
Third, the study ignored the census Over-count of Hispanic children. When census and TEA data are mixed without making necessary adjustments for cross biases found in these two independent data sources, unreliable figures are a result. An expert in census data on Hispanics testified that the Criterion study was “not . done by a person who clearly understands the census data.”
79
When comparing census with TEA data, census enrollment data demonstrate that the census had higher enrollment estimates than TEA for Hispanics and lower estimates than TEA for whites and blacks. The validity of the study is founded on the lack of residual populations for blacks and whites. This is a result of the cross biases found in the two data bases, and when efforts are made to compensate for the cross biases the foundation crumbles.
80
See
note 76
supra.
Finally, while attempting to estimate “potential undocumented children,” the Criterion study is really an estimate of the children not in school. Reliance on school district enrollment data suggests that it may not even be a good estimate of that statistic. One State witness testified that in one particular year the enrollment data for the Houston Independent School District were in error by a factor of twenty-two percent.
81
If this is typical, the Criterion study “would be meaningless . [because] the error on the components used to arrive at the measurement would be larger than the measurement itself.”
82
The court finds that the Criterion study does not represent an accurate estimate of the number of undocumented children in Texas.
The study by no means suggests that the estimates made by the demographers who have been studying this question for years should be rejected. Dr. Jorge Bustamante, considered the foremost authority on estimating the numbers of undocumented Mexican nationals in the United States, testified that he calculated the number of undocumented Mexican school age children in Texas to be approximately 20,000. This estimate is much more in line with the numerous studies which have been done by other demographers and social scientists attempt
*578
ing to assess the numbers and characteristics of undocumented Mexican nationals present in the United States.
83
The final element to the question of numbers is the State’s argument that providing education to undocumented children would serve as an inducement for more undocumented persons to cross the border. The State’s position strongly suggests that one of the bases for the statute is a desire to slow the flow of illegal immigration.
84
Such a basis for the statute is impermissible. Measures intended to increase or decrease immigration, whether legal or illegal, are the province of the federal government. In
DeCanas
v.
Bica,
424 U.S. 351, 354 , 96 S.Ct. 933, 936 , 47 L.Ed.2d 43 (1976), the Supreme Court stated that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.” Insofar as the State’s rationale is to limit the inducements to immigration, the State statute is not based on a permissible state interest.
In addition, the evidence demonstrates that undocumented persons do not immigrate in search for a free public education. Virtually all of the undocumented persons who come into this country seek employment opportunities and not educational benefits. The State has conceded that the availability of jobs is the major factor which brings undocumented aliens into the United States. There was overwhelming evidence of the primacy of employment as the major attraction for immigrants.
85
and of the unimportance of public education as a stimulus for immigration.
86
Further, it is well understood that other social services in this State are neither available to or sought by undocumented persons. The unavailability of those services has not been shown to have stemmed the tide of illegal immigration. Undocumented persons do not come to Texas with a vision of America as an edenic welfare state; they come here to work. Finally, no other state has a statute excluding undocumented persons from the public schools.
87
There is no evidence that other states have a disproportionate num
*579
ber of undocumented persons who have been drawn to those states because of the availability of free public education. The court finds that free education would not serve as a significant attraction for undocumented persons.
88
2.
Fiscal Impact
The State contends that section 21.031 is supported by a rational basis because it saves money and preserves the State’s resources; educating additional children would cost more and would spread the State’s educational dollars too thinly. This, it is argued, would result in a decline in the quality of education in the State, or necessitate decreased funds for other social services. One employee of the Texas Education Agency used this analogy.
If our total population can be compared to the people on an oceanliner and we are in a storm and the liner has gone down, and I am in charge of the life boat and the life boat holds . . . forty people, we already have fifty people on that boat, which is somewhat similar to the situation we have now because we have the capacity for so many kids, and we have a need for a greater capacity but don’t have that capacity, but we still have the kids . . . there is (sic) still people out there in the water to be saved. Now if I make the decision, being in charge of that life boat, that I will pick up another one hundred people and sink that boat so that somebody is saved, would I be justified; or, conversely, do I allow some of those people out there in the water to drown so that I can save these fifty that I already have in the boat?
. We can stretch teachers so far to when we get to the point when the teachers can no longer adequately meet the needs of these children, or when the teachers are so overburdened that they are going to quit teaching rather than put up with this sort of situation. Then I think our ship will go down.
You have to determine those that you can save. You have to determine in our case here the number of children that you can provide adequate, or nearly adequate, education to and you have to in some way determine whether the introduction of an insignificant (sic) number of students for these same services would then depress the level to the point that none of these people would be adequately served.
89
Without suggesting that this form of educational
triage
is ever justified, the court finds that the State has misstated the case. Permitting undocumented children to attend the public schools clearly would affect State and local resources. The evidence does not indicate, however, that the State or the school districts lack the necessary funds. Indeed, as counsel for the State noted in closing argument:
There is no place in this pre-trial order that the State has said the State of Texas doesn’t have enough
money. Not one
place. Texas can come up with the money. If we want to get the legislature to fund certain projects, we will go down and get them to fund it. The State never said it didn’t have money in its budget.
90
Without a reliable estimate of the number of undocumented children in the State, it is difficult to gauge the precise financial savings that can be expected to accrue as a result of excluding children from school pursuant to section 21.031. Nonetheless, the evidence indicates that both the State and the local school districts together have sufficient funds to educate the undocumented children.
*580
Texas enjoys a healthy economy. As a result of economic growth throughout Texas, the State budget showed a closing balance on August 31, 1979, of $2.15 billion for funds that can be appropriated by the Legislature. This represents a 3.7 percent increase above the cash balance at the beginning of the year.
91
This is attributed to highly commendable fiscal policies which prohibit deficit spending. The court by no means wishes to disparage the concern for fiscal integrity. Nonetheless it must be noted that Texas ranks 42nd of the fifty states in current per pupil expenditure.
92
It is necessary to examine the way in which the State appropriates money for education in order to assess the claim that the expense of educating undocumented children is prohibitory.
The witnesses agreed that the bulk of the state budget is derived from consumer taxes, primarily the State’s sales tax. Revenues raised by the State are placed in various funds. Monies for education primarily come from the General Revenue Fund, the Omnibus Tax Clearance Fund, the Highway Motor Fuel and Tax Funds, and the Permanent Escrow Fund.
93
Each one of these funds had a net cash balance (surplus) as of August 31, 1979, the end of the last fiscal year. The General Revenue Fund has had a surplus for the last twelve years, and for at least three years that surplus has exceeded $600 million.
94
The current estimate by the Comptroller is that the General Revenue Fund will have a cash balance of $324.4 million at the end of the current biennium.
95
This projected surplus is sufficient to finance completely the education of all undocumented children in Texas even if the State correctly estimated the number of undocumented school age children. The Foundation School Program amounts to $1,200.00 per student calculated in terms of average cost per average daily attendance. Under current school finance laws, the State would be required to provide $800.00 per child to the school districts.
96
If the school finance laws were altered and the current state expenditures were provided to educate both the current number of school age children plus undocumented school age children, the addition of 120,000 undocumented children would decrease the State’s per pupil expenditure by $70.00. As already noted, the State has grossly overestimated the number of undocumented children in Texas.
The impact of admitting undocumented children on the local independent school districts would not be uniform. It appears that the wealthy metropolitan school districts in which local funds support a larger percentage of the total educational cost and the poor school districts in which local dollars are stretched to the limit would be the most affected. These problems are very real. The conditions in Brownsville require the use of temporary buildings having no air conditioning. In districts like Dallas the high cost of living requires the school district to adopt a salary structure which exceeds that contemplated by the Foundation School Program. These difficulties are addressed by current school finance laws in only one respect. The school finance laws do not attempt to aid a district like Brownsville with its construction problems, and they do not attempt to compensate for the higher cost of living and of municipal
*581
government in the large cities.
97
Instead, the Legislature has attempted to ameliorate these conditions by reducing the number of students.
The State often stated during the hearing that Texas has the duty to protect the fiscal integrity of the local independent school districts. As Judge Justice noted in
Doe v. Plyler,
458 F.Supp. 569, 589 (N.D.Tex.1978), “[a]ny spectator watching the state’s presentation might easily have mistaken it for a retrial of the
Rodriguez
case, with the State of Texas acting as
amicus curiae
for the plaintiffs, emphasizing the plight of property-poor border school districts under the State’s educational financing scheme.” The Legislature’s approach to alleviating overcrowding in the border school districts and to assist the metropolitan school districts with teacher salaries is a drastic one. It is to exclude children from the schools.
3.
Bilingual Education and Desegregation
The State also presented evidence concerning the impact of educating undocumented children on bilingual education programs and on desegregation plans being implemented throughout the State. The evidence indicates that at the present time there is a shortage of qualified bilingual teachers in some school districts, and that educating an additional number of children with limited English speaking ability will further strain these resources. The court heard, however, a great deal of expert testimony describing methodologies and techniques available to offset the present shortage of bilingual teachers. Classroom management techniques have been utilized in other states when adequate numbers of bilingual teachers have been unavailable.
98
Accordingly, while there is no doubt that Texas school districts will encounter difficulty providing the current level of educational opportunity to all children with limited English speaking ability if a large number of children are added to the program, the court is not convinced that it was necessary to exclude an identifiable portion of the children of limited English speaking ability in order to protect the Mexican-American and documented alien children in the State.
Moreover, the evidence demonstrates that the largest single source of funds for bilingual education is the federal government. In 1977-78, the State appropriated approximately $6.9 million for the State bilingual program. The federal government provided grants of over $14 million pursuant to Title I of the Elementary and Secondary Education Act and the Emergency School Aid Act bilingual grants in the same year. This figure does not include funds provided through the Title I Migrant Program which also can be used for bilingual education. Texas receives more Title I Migrant funds than any other state in the nation.
99
Nothing in the federal statutes or regulations prohibits the use of federal funds for the education of undocumented children.
100
The State also presented evidence purporting to show the adverse impact of an influx of undocumented children on compliance with desegregation orders. While conceivably the influx of undocumented children might, affect the minority enrollment in some schools, there is nothing in desegregation orders which forbids modifications that enhance desegregation. As one desegregation expert testified, there is nothing in any desegregation order which could be interpreted in any way to prevent or to preclude a school system from enrolling children in the schools. Further, evidence shows no more than a hypothetical set of facts which only conceivably could affect desegregation. The State did not even at
*582
tempt to show that compliance with desegregation orders would be made more difficult. The State’s bald assertion is insufficient to provide even a conceivable basis for the statute.
D. Application of Judicial Scrutiny
Maintaining the fiscal integrity of the public schools is an important and legitimate state interest.
Shapiro v. Thompson,
394 U.S. 618, 633 , 89 S.Ct. 1322, 1330 , 22 L.Ed.2d 600 (1969).
101
States have the responsibility of safeguarding all monies entrusted to them by the taxpayers and these demands are increased when a fundamental state function such as education is involved. That does not mean that any measure which saves money is constitutional. The court has concluded that the absolute deprivation of education should trigger strict judicial scrutiny, particularly when the absolute deprivation is the result of complete inability to pay for the desired benefit. When strict judicial scrutiny is appropriate, important or legitimate governmental interests are not sufficient to justify legislative classifications. The classifications, if they are to be upheld, must be shown to be necessary to promote a compelling governmental interest.
In're Griffiths
413 U.S. 717, 721-22 , 93 S.Ct. 2851, 2852-2853 , 37 L.Ed.2d 910 (1973);
Eisenstadt v. Baird,
405 U.S. 438 , 447 n.7, 92 S.Ct. 1029 , 1035 n.7, 31 L.Ed.2d 349 (1972);
Dunn v. Blumstein,
405 U.S. 330, 342 , 92 S.Ct. 995, 1003 , 31 L.Ed.2d 274 (1972);
Graham v. Richardson,
403 U.S. 365, 375-76 , 91 S.Ct. 1848, 1853-1854 , 29 L.Ed.2d 534 (1971);
Shapiro v. Thompson,
394 U.S. 618, 634 , 89 S.Ct. 1322, 1331 , 22 L.Ed.2d 600 (1969);
Kramer v. Union Free School District,
395 U.S. 621, 627 , 89 S.Ct. 1886, 1889 , 23 L.Ed.2d 583 (1969);
Carrington v. Rash,
380 U.S. 89 , 85 S.Ct. 775 , 13 L.Ed.2d 675 (1965). Additionally, the factor which is the basis for differentiating between persons otherwise equal may not be capricious or irrelevant; it must be germane to the effectuation of the State’s interest.
United States Department of Agriculture v. Moreno,
413 U.S. 528, 535-38 , 93 S.Ct. 2821, 2826-2828 , 37 L.Ed.2d 782 (1973);
Reed v. Reed,
404 U.S. 71, 75-76 , 92 S.Ct. 251, 253-254 , 30 L.Ed.2d 225 (1971);
Oregon v. Mitchell,
400 U.S. 112, 243 , 91 S.Ct. 260, 324 , 27 L.Ed.2d 272 (1971) (Brennan, J., dissenting);
Turner v. Fouche,
396 U.S. 346, 362 , 90 S.Ct. 532, 541 , 24 L.Ed.2d 567 (1970); Waiters
v. City of St. Louis,
347 U.S. 231, 237 , 74 S.Ct. 505, 509 , 98 L.Ed. 660 (1954). Finally, the State is required to show that there are no less restrictive alternatives available.
Dunn v. Blumstein,
405 U.S. 330, 343 , 92 S.Ct. 995, 1003 , 31 L.Ed.2d 274 (1972);
Shelton v. Tucker,
364 U.S. 479, 488 , 81 S.Ct. 247, 252 , 5 L.Ed.2d 231 (1960). The State has not carried this heavy burden of justification.
First, the concern for fiscal integrity is not a compelling
102
state interest.
Graham v. Richardson,
403 U.S. 365, 374-75 , 91 S.Ct. 1848, 1853-1854 , 29 L.Ed.2d 534 (1971);
*583
Shapiro v. Thompson,
394 U.S. 618, 633 , 89 S.Ct. 1322, 1330 , 22 L.Ed.2d 600 (1969).
Second, the State has not shown that excluding children from school is in any way necessary to the improvement of the education in the state. As the State argued in
Rodriguez ,
there is no evidence that the quality of education is somehow strictly tied to the amount of money expended on each child. 411 U.S. at 24 n.56, 42-43 & n.86, 46 n.101, 93 S.Ct. at 1291 n.56, 1301-1302 & n.86,1303 n.101. The State now wishes the court to assume without any credible supporting evidence that a proportionately small diminution of the funds spent on each child will have grave impact on the quality of education. Naturally, the court shares the State’s concern for the quality of education. This memorandum should be ample evidence that this court believes that education is a critical state function. Barring the doors to a distinct group of children, however, is the most, not the least, drastic alternative available.
Third, the State has not shown that the classification used actually advances the state interest. The classification employed by the statute is, loosely speaking,
103
a function of federal immigration status. The undocumented children are otherwise similarly situated to the other children in the State. Nothing about their immigration status by itself distinguishes them from other children in terms of their educational needs.
104
The parents of undocumented children, along with other parents, finance public education. The classification used is wholly irrelevant to the achievement of the State’s objective.
McGowan v. Maryland,
366 U.S. 420, 425-26 , 81 S.Ct. 1101, 1104-1105 , 6 L.Ed.2d 393 (1961). The exclusion of undocumented children no more relates to the saving of educational resources than does denying access to education to a similar number of documented and citizen children. The State never attempted to examine the impact of undocumented children on the schools before deciding to exclude them. It is thus not surprising that the classification used is in no way carefully tailored or drawn to advance the state interest.
105
Equal protection of the laws is meaningless unless it applies to the unpopular as well as the popular, the weak as well as the strong. As the Supreme Court has stated:
Equal protection of the laws is something more than an abstract right. It is a command which the state must respect, the benefits of which every person may demand. Not that the least merit of our constitutional system is that it safeguards extend to all — the least deserving as well as the most virtuous.
Hill v. Texas,
316 U.S. 400, 406 , 62 S.Ct. 1159, 1162 , 86 L.Ed. 1559 (1942). The undocumented children residing in the State of Texas are entitled to that protection. Section 21.031 of the Texas Education Code does not employ a classification which is necessary or substantially related to a compelling governmental interest.
106
Accord
*584
ingly, that statute violates the equal protection clause of the fourteenth amendment of the United States Constitution.
III. PRE-EMPTION
State legislation which improperly encroaches upon an area of federal responsibility or concern will be held invalid under the pre-emption doctrine. The preemption doctrine has two elements: state legislation is pre-empted if it regulates matters which are subject to exclusive federal legislative control
107
or if it conflicts with the effectuation of congressional objectives. Under the first formulation, congressional power should be deemed to “oust” state authority when “the nature of the regulated subject matter permits no other conclusion” or “[when] Congress has unmistakably so ordained.”
DeCanas v. Bica,
424 U.S. 351, 356 , 96 S.Ct. 933, 937 , 47 L.Ed.2d 43 (1976),
quoting, Florida Lime & Avocado Growers v. Paul,
373 U.S. 132, 142 , 83 S.Ct. 1210, 1217 , 10 L.Ed.2d 248 (1963). In the second circumstance, when the federal legislation contemplates complimentary state legislation, state law will be held invalid if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”
Hines v. Davidowitz,
312 U.S. 52, 67 , 61 S.Ct. 399, 404 , 85 L.Ed. 581 (1941).
The issue before the court is whether Title I of the Elementary and Secondary Education Act of 1965 (Title I) pre-empts section 21.031 of the Texas Education Code. Title I does not reflect a congressional intent
108
to occupy or to oust the states from the field of education, and the nature of the subject matter certainly permits the contrary conclusion. Accordingly, the issue is whether section 21.031 burdens or conflicts with federal objectives. In order to determine whether such a burden or conflict exists, it is necessary to examine the objectives and statutory schemes of both legislative provisions.
There is no legislative history accompanying the 1975 amendment to section 21.031, yet it is possible to ascribe a governmental objective to the statute. The purpose of section 21.031 has been described as the protection of the fiscal integrity of state and local educational programs. The method used to save money is to reduce the number of students and in particular the number needing bilingual education. Although legislative history of a subsequent amendment to section 21.031 suggests that the Texas Legislature may have had other motives,
see
note 84
supra,
the court will assume that the Legislature had no illicit purposes and that the statute was not intended to regulate a matter subject to exclusive federal power. Education is a matter of state and local concern under the police powers.
Title I, 20 U.S.C. § 2701
et seq.
is the major program of federal aid for elementary and secondary schools. Briefly stated, Title I provides funds to state and local educational agencies for the development and implementation of compensatory programs designed to supplement the educa
*585
tion provided to those children targeted by Congress as “educationally deprived.” The declaration of policy found in Title I, 20 U.S.C. § 2701 , states:
In recognition of the special educational needs of children of low-income families and the impact that concentrations of low-income families have on the ability of local educational agencies to support adequate educational programs, the Congress hereby declares it to be the policy of the United States to provide financial assistance (as set forth in the following parts of this subchapter) to local educational agencies serving areas with concentrations of children from low-income families to expand and improve their educational programs by various means (including pre-school programs) which contribute particularly to meeting the special educational needs of educationally deprived children. Further, in recognition of the special educational needs of children of certain migrant parents, of Indian children and of handicapped, neglected, and delinquent children, the Congress hereby declares it to be the policy of the United States to provide financial assistance (as set forth in the following parts of this subchapter) to help meet the special educational needs of such children.
The Title I Migrant Program, 20 U.S.C. §§ 2761-2763 , represents a congressional commitment to the establishment of a federal program designed to provide an element of continuity to the education of children whose parents are migratory agricultural workers.
These children have often been called the most educationally deprived children in America. As the National Advisory Council on the Education of Disadvantaged Children has stated: “the migrant child is constantly moving; he has no continuity in his education or his life in general; he is in the largest group of non-English speaking children in the Title I program. He is out of the mainstream of any stable society and has few bases for security. His parents are in the fields all day, and in the formative years and later, he is either there, working with them, or at home babysitting with [the] younger children.
3
U.S.Code Cong. & Admin.News,
pp. 4093, 4113 (1974).
The annual federal appropriation for Title I now exceeds $3 billion.
109
Ninety percent of the school districts in the country participate in the program; approximately six million children currently are being served. 5
U.S.Code Cong. & Admin.News,
p. 4973 (1978). Of the various kinds of educational deprivation recognized under Title I, it is the impoverished child and the migrant child who rank first and second respectively in terms of the amount of money appropriated for each category. Participation in the program is entirely voluntary both on the part of the states and on the part of the school districts within the state. Since its enactment, however, there has been consistent participation by ninety percent of all school districts in the state.
110
Nothing in the law or its regulations distinguishes between documented and undocumented children.
The amount of money a state will receive upon application for Title I funds is computed through the use of the “Title I formula.” 20 U.S.C. § 2711 . Briefly, a state’s allocation is determined by multiplying a percentage of the state’s per pupil expenditure by the number of children residing in the state aged five through seventeen from families below the poverty level as counted in the 1970 census. According to the 1970 census, there are more “formula” or impoverished children residing in Texas than in any other state. Based upon their residence in the state, Texas has received $1.3 billion in general Title I revenue since the law was enacted.
111
Nearly one-half of that amount, almost $600 million, has been allocated to the State since fiscal year 1976
*586
and the enactment of section 21.031.
112
Undocumented children play an important role in the eventual allocation of Title I money to Texas. The Bureau of Census made every effort to count every individual residing within our national boundaries in the 1970 census.
113
It is apparent that substantial numbers of the “formula” children are in fact undocumented children.
In contrast to the general Title I program which utilized census statistics to determine the residency of poverty children for the purposes of federal funding, the Title I Migrant Program involves an ongoing effort to identify every eligible migrant child residing in the United States. Once an eligible migrant child is identified, he is given an identification number and is then enrolled in the migrant student record transfer system (MSRTS), and a computer record is maintained of every migrant child in the United States.
114
In accordance with the federal funding formula, the number of migrant children enrolled in the MSRTS and found to be residing in a state during a given year determines the amount of Title I Migrant Funds to be awarded to that state in the subsequent fiscal year.
115
Texas, like other states participating in the Title I Migrant Program, is under a federal obligation to identify every eligible migrant child residing in the state and to enroll them in the MSRTS. 45 C.F.R. §§ 116d.l0(b)(l), 116d.32(b) & 116.39(f). These children do not have to be enrolled in school to be identified and enrolled in the MSRTS so long as they meet the federal definition of a current or former migrant. Federal regulations pertaining to the identification of migrant children are interpreted as a blanket prohibition against inquiring into the immigration status of either a child or his parent. 45 C.F.R. § 116d.l2. There is no question that Texas enrolls undocumented children into the MSRTS.
116
As a result of the ironic relationship between the two statutes, Texas receives money for education from the federal government because of the presence of children who are excluded from school. The children are targeted to benefit from federal funds supplementing their education when in fact they receive no education at all. Despite this windfall to the State, the court concludes that Title I does not preempt section 21.031.
Whether a state statute stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress requires two separate analyses. It must first be determined whether there is a specific conflict within the express provisions or the very terms of the two statutes.
California v. Zook,
336 U.S. 725, 728 , 69 S.Ct. 841, 842 , 93 L.Ed. 1005 (1949);
Kelly
v.
Washington,
302 U.S. 1, 4 , 58 S.Ct. 87, 89 , 82 L.Ed. 3 (1937).
See also DeCanas v. Bica,
424 U.S. 351, 363-65 , 96 S.Ct. 933, 940-41 , 47 L.Ed.2d 43 (1976);
New York State Dept, of Social Servs. v. Dublino,
413 U.S. 405, 422 , 93 S.Ct. 2507, 2517 , 37 L.Ed.2d 688 (1973). There is no specific conflict between the state and federal programs; compliance with both the state and federal statutes is not a physical impossibility.
*587
Florida Avocado Growers v. Paul,
373 U.S. 132, 142-43 , 83 S.Ct. 1210, 1217-18 , 10 L.Ed.2d 248 (1963). The State’s actions are not in violation of any specific provision of Title I, and section 21.031, on its face, is not inconsistent with the federal statutes.
Second, the court must “consider the relationship between state and federal laws as they are interpreted and applied, not merely as they are written.”
Jones v. Rath Packing Co.,
430 U.S. 519, 526 , 97 S.Ct. 1305, 1310 , 51 L.Ed.2d 604 (1977). The salient feature of Title I is that it is designed to provide supplementary funds to local educational agencies. This major purpose is not one that cannot be accomplished unless all formula children attend schools. The financing scheme employed by Title I does not indicate that all formula children must benefit from supplementary funds. First, the census was used to compute the number of formula children despite criticism; it was

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2378335. Public record. Not legal advice.