Amicus Brief — Plyler v. Doe

Table of Contents

Table of AuthoritieS .....ccceccecccsees

INTEREST OF AMICUS ..ccccccccccccccccces

SUMMARY OF ARGUMENT .....cceeseesceecvess

ARGUMENT .cccccccccccccvccccecsececscccce

I. STATES HAVE HISTORICALLY

USED FEDERAL IMMIGRATION

CLASSIFICATIONS AND DOCU-

MENTATION REQUIREMENTS AS

TOOLS OF INVIDIOUS

DISCRIMINATION AGAINST

ASIANS IN AMERICA ....eeeeescccees

II. SECTION 21.031 AND OTHER

STATE LEGISLATIVE CLASSI-

FICATIONS DIRECTED AGAINST

UNDOCUMENTED ALIENS WILL

_ INEVITABLY HAVE A DISCRIM-

INATORY IMPACT UPON RACIAL

AND ETHNIC MINORITIES ....-.e-+e0-

CONCLUSION ARTS een Des SSSR Se eaerat 8 gh prere

14

21

ii

Table of Authorities

Cases Page

Alvorado v. El Paso Independent

School District, 426 F. Supp.

575 (W.D. Tex. 1976), aff'd,

593 F.2d 577 (Sth Cir. I579) ..ccecee 16

Asakura v. City of Seattle,

BOS UeBs: 332 (A924) coccvccccccsvcces ll

Briscoe v. Bell, 432 U.S. 404

(1977) *enernerineeeneeeeneneneeneeneeeeneeeeeeeee 15

California Delta Farms, Inc. v.

Chinese American Farms, Inc.,

207 Cal. 298, 278 B.. 227 (1929) cece 10

Castaneda v. Partida, 430 U.S.

482 (1977) e*eeneeeneteeneneeeeneeeeee#ee#ee *eneee 15

The Chinese Exclusion Case,

130 U.S. 581 (1889) oeeteewewe eee eeueeneene 9,12

Cisneros v. Corpus Christi

Independent School District,

324 F. Supp. 599 (S.D. Tex.

1970), aff'd, 467 F.2d 142

(Sth Cir. 1972) (en banc),

cert. denied, 413 U.S. 930 (1973) ... 16

Cockrill v. California, 268 U.S.

258 (1925) *eneeeeneenerteeneeneeneeneneeeeeeeee 10

Doe v. Plyler, 628 F.2d 448

(5th Cir. 1980) *eneneieewrneeieeeneeeeeeeeee 15

Ex parte Ah Cue, 101 Cal. 197

(1894) *oeneeeeeneneeeneneeneeneeeeeeeeeeeeee 13

iii

Page

Ex parte Ah Pong, 19 Cal. 106

(1891) eoeeeteeeneensteeneeeneeneeeeneeeneeeteeee#ete 6

Fong Yue Ting v. United States,

149 U.S. 698 (1893) oseeeeeoeeeeeeeeveee 14

Frick v. Webb, 263 U.S. 326 (1923) .... 10

Graves v. Barnes, 343 F. Supp.

704 (W.D. Tex. 72), aff'd

sub nom., White v. Regester, |

412 U.s. 755 (1973) eeereeeeeaeeneeeeeee 15

Hernandez v. Texas, 347 U.S.

475 (1954) “ene eeeeeensereeeeeeeneeeeeeeee 15

Keyes v. School District No. l,

413 U.S. 189 (1973) .wccccccces eccccece 15

Morales v. Shannon, 516 F.2d 411

(Sth Cir.), cert. denied, 423

U.S. 1034 (1975) *oeeneeeeree#ensteneeneeteeneeeeeee 16

Ozawa v. United States, 260 U.S.

178 (1922) wccoce eee encseccoansesseces 10

People ex rel. Attorney General

v. Naglee, 1 Cal. 232 (1850) ..... eee 6

.Porterfield v. Webb, 263 U.S.

; 225 (1923) oeeeeee ee een eeee oeereeeeeeee 10

State v. Hirabayashi, 233 P. 948

(Wash. 1925), aff'd, 246 P. 577

(1926), aff'd, 277 U.S. 572 (1928) .. 10

Takahashi v. Fish and Game

Commission, 334 U.S. 410 (1948) ..... ll

Tape v. Hurley, 66 Cal. 473,

6 P. 129 (1885) e*eneneenree eeeeneteeeeeteeee 8

iv

Terrace v. Thompson, 263 U.S.

197 (1923) eeneneeensteneneeneneeneeneeeneeneeeeee 10

United States v. Texas Educa-

tion Agency (Austin Indepen-

dent School District), 467

F.2d 848 (5th Cir. 1972) (en

banc); 532 F.2d 380 (5th Cir.

1976); 564 F.2d 164 (Sth Cir.

1977), cert. denied, 99 S. Ct.

SEUO MASTS Hebe rice Vecccesess 6a ee bw 16

Ward v. Flood, 48 Cal. 36 (1874) ...... 8

Webb v. O'Brien, 263 U.S. 313

(1923) ee eriewneeeee e*eenereneee#ee#e#e#ee*#e#eee# eens ee 10

Yamashita v. Hinkle, 260 U.S.

199 (1922) eeeeeneeneteee#se e#ee#ee#ee#e##e#eee#e#e#e« ll

Yick Wo v. Hopkins, 118 U.S. 356

(1886) *enreneeneeeneeee eoeereeeeeneeneeeeeeee 19,20

Zamora v. New Braunsfels Indepen-

dent School District, 519 F.2d

1084 (5th Cir. 1975) (per curiam) ... 16

Federal Statutes

Act of July 5, 1884, ch. 220,

§ 4, 23 Stat. 115 e*eneeenee#te#enrteeeeeee#se#ee 9

Act of October 1, 1888, ch.

1064, § l, 25 Stat. 504 eevee eweaeeeaeee 9

Act of April 27, 1904, 33

Stat. 428 *eenereeneeeneeeneneeeneneerteeeeeeee 9

Act of Oct. 3, 1965, Pub. L.

No. 94-571, 66 Stat. 163 ..... eanen es 17

Vv

Chinese Exclusion Act of 1882,

ch. 126, §§

1, 14, 22 Stat. 58

Geary Act of 1892, ch. 60,

27 Stat. 25 eoeenrvteeeeeeeeeeeee

Immigration Act: of 1924, ch. 190,

43 Stat.

Immigration and Nationality Act

of 1965, § 202, 8 U.S.C. § 1152

State Statutes

Act

§

Ch.

Ch.

Ch.

Ch.

Ch.

Ch.

Ch.

Ch.

of May 17, 1861, ch. 401,

93,

Sl,

117,

140,

159,

193,

329,

417,

685,

§ l,

1861 Cal. Stats. 448

§ l,

§§ 6,

1863 Cal. Stats. 194 ..

§ 33,

§ 8,

1915 Cal. Stats. 690

§ l,

1889 Cal. Stats.

1885 Cal. Stats.

153 oeneeeeneeeeve eoeneneeeeeeeeee

“ee eee

99 wecce

13, 1891 Cal. Stats.

1893 Cal. Stats.

1860 Cal. Stats.

1921 Cal. Stats.

California State Constitution

of 1879

253

1160

17

6,7

vi

Page

Fish and Game Code, § 990,

ch. 181, § 3, 1945 Cal.

Stats. 660 ' ft eee ky o@ Fe ew we oe ek ee Oe “ne @ fe ll

Foreign Miners' License Tax,

ch. 97, § 1, 1850 Cal. Stats.

221 sae ease eer eeeo ec ead eee ese oeopeeaeeecerrers 6

Game Laws, ch. 339, § 2, 1923

Cal. Stats. 696 ee 6:86:66 06 8:9 OE O28.82.0' 0606.8 8 9.9 ll

General School Law of

California, § 1662,

1880 Gail « Stats. eeeeveeveeveeeeeveeeeeeene 3

Texas Education Code, § 21.031 ........- passim

Other Authorities

2 U.S. Code & Cong. Adm. News

1653 (1952) So6.6 8 6.6.8 9.9: 8.9.0'0:6 5 “eee enenenene 9

F. Chuman, The Bamboo People:

The Law and Japanese Americans

(1976) escoeeevceoeeeneeeee2e20e0020202020202020080808080 17

M. Coolidge, Chinese Immigration

(1909) ecoeoeoeeveeveveeoeee2ee2e0ee2e20202028020020808080°8 GC. 7

Ferguson, "The California Alien

Land Law and the Fourteenth

Amendment," 35 Cal. L. Rev. 61

(TOOT) cdcecesveverenseveccedesecesos 10

Gordon, "The Racial Barrier to

American Citizenship,” 93 U. Pa,

L. Rev. 237 (19435) eoeeeveeeveeveeveeeneeeeee 9

vii

J. Hendrick, The Education of

Non-Whites in California,

1849-1970 (1977) eeeeeeveeveeveeeeeeeveeneee 8

B. Lasker, Filipino Immigration

(1931) eeeceveeveeoeveeoee eevee eeeeeeeee 8 @ 17

McGovney, The Anti-Japanese Alien

Land Laws of California and Ten

Other States, 35 Cal. L. Rev. 7

CROO TT 5660666460 006.00F006080060068008 10

North, “Asia-Pacific Illegal Aliens:

A Discussion of Their Status,

Limitations, and Rights Under the

Law," in U.S. Commission on Civil

Rights, Civil Rights Issues of

Asian and Pacific Americans:

Myths and Realities (1979) ...+seees 19

E. Sandmeyer, The Anti-Chinese

Movement in California (1939) ....... Fant

U.S. Commission on Civil Rights,

Civil Rights Issues of Asian

and Pacific Americans: Myths

and Realities (1979) ....eseee. oaeene 1,19

U.S. Comm'n on Civil Rights,

The Tarnished Golden Door:

Civil Rights Issues in Immigra-

tion (1980) wccccccccccvcccccccccccce 17

U.S. Department of State, Bureau

of Consular Affairs, Immigrant

Numbers for August 1981, Vol. V,

No. Ll (1981) wnccccccccccccccccceces 18

C. Wollenberg, All Deliberate Speed,

Segregation and Exclusion in

California Schools, 1885-1975

C1976) ccccccsceeceqccese TYTTTEE TTT 8

INTEREST OF AMICUS

The Asian American Legal Defense and

Education Fund (AALDEF), is a non-profit

corporation established in 1974 under the laws

of the States of California and New York. It

was formed to protect the civil rights of Asian

Americans throughout the nation through the

prosecution of lawsuits and the dissemination

of public information.

In the last fifteen years, there has been

a dramatic increase in Asian immigration to the

United States. While Asians now comprise one-

third of the legal immigration to this country

each year ,2/ a number of Asians are also

undocumented aliens. It is AALDEF's experience

that Asian undocumented aliens suffer from the

most extreme forms of exploitation in all

1. See U.S. Comm'n on Civil Rights, Civil

Rights Issues of Asian and Pacific Americans:

Myths and Realities 11 (1979) (hereinafter

wer tT Rights Issues"), citing annuai reports

of the Immigration and Naturalization Service.

@3-

aspects of their daily lives, which merely

compound the burdens of race and national

original that continue to disadvantage Asian

Americans in general. =*

A primary concern of amicus is discrimi-

nation against Asian Americans on the basis

of their immigration status. From the Chinese

Exclusion Act of 1882 to the national origins

quota system, abolished in 1965, our nation's

immigration and nationality laws have repeatedly

singled out Asians for exclusion and discrimi-

natory treatment. These immigration laws,

which utilized invidious racial and national

origin classifications, were then used in

conjunction with state laws to deny Asian

Americans equal access to education, employment,

business opportunities and government benefits.

As a result of this historical discrimina-

tion against Asian immigrants, amicus views

with great concern state laws, such as

section 21.031 of the Texas Education Code,

which deprive undocumented aliens of educational

-3-

and other opportunities because of their

immigration status. 2/

SUMMARY OF ARGUMENT

State statutes have relied historically

upon apparently neutral immigration classifi-

cations and documentation requirements to

subject aliens to invidious discrimination.

Federal immigration and nationality laws laid

the groundwork for a comprehensive scheme of

state statutes that successfully restricted

the rights of Asian immigrants to work, travel

and own property for several decades. Although

racially exclusionary immigration laws are now

obsolete, their ostensibly neutral character

continues to provide a convenient device to

discriminate against aliens residing in this

country.

Section 21.031 of the Texas Education

Code bears an ominous resemblance to previous

2. The parties have consented to the filing

of this brief, and letters of consent have

been filed with the Clerk.

‘ isa

state laws which subjected Asian immigrants

to invidious discrimination. Although

section 21.031 appears to apply equally to

all undocumented aliens who enter the country

illegally, the deprivation of tuition-free

education in fact falls almost exclusively

upon Mexican children. The discriminatory

intent behind section 21.031 can also be

inferred by the long history of discrimination

against Hispanics in Texas. Since the

statutory classification of undocumented aliens

will inevitably burden racial and ethnic

minorities, it should be subject to heightened

judicial scrutiny under the Equal Protection

Clause of the Fourteenth Amendment.

ARGUMENT

I. STATES HAVE HISTORICALLY USED

FEDERAL IMMIGRATION CLASSIFICA-

TIONS AND DOCUMENTATION REQUIRE-

MENTS AS TOOLS OF INVIDIOUS

DISCRIMINATION AGAINST ASIANS

IN AMERICA.

Throughout history, restrictive state

statutes have been used in concert with

-5-

immigration laws and alien documentation re-

quirements to discriminate against racial and

ethnic minorities. Although section 21.031,

which denies tuition-free education to Mexican

undocumented alien children, is one recent

example, the precursors of such laws were en-

acted almost a century ago in a series of

facially neutral state statutes that targeted

Asians for invidious discrimination because

of their immigration status.

The first group of Asians to immigrate

in substantial numbers to the United States

were the Chinese, who arrived in 1847 in

California as male contract laborers in mining,

railroad, agriculture and other menial occupa-

tions. As the Chinese came into competition

with whites in the labor market, racist and

anti-alien sentiments in the depression economy

of the 1870's led to the passage of federal

laws to curtail further Chinese immigration

and state laws to restrict substantially the

rights of Chinese who remained in this country.

f=

Early state laws which apparently limited

the opportunities of all noncitizens were in

fact directed at the Chinese. As early as

1850, the California Legislature enacted the

Foreign Miners’ License Tax,2/ which was repro-

duced and translated into Chinese for mass

distribution and enforced almost exclusively

against Chinese aliens .4/ Moreover, Article

XIX, Section 4 of the California State Consti-

tution of 1879 proclaimed that "The presence

cf foreigners ineligible to become citizens is

declared to be dangerous to the well-being of

the State. ..." The provision further

explained that the term, "foreigners ineligible

to become citizens," referred specifically to

3. Act of April 13, 1850, ch. 97, § 1 et seq.,

1850 Cal Stats. 221, sustained in People ex

ex rel. Attorney General v. Naglee, 1 Cal. 232

(1850) (repealed 1851).

4. The California Legislature subsequently

attempted to make a statutorily conclusive

presumption that all Chinese were "miners."

Act of May 17, 1861, ch. 401, § 93, 1861 Cal.

Stats. 448, invalidated in Ex parte Ah Pong,

19 Cal. 106 (1861). See M. Coolidge, Chinese

Immigration 36 (1909).

aja

Chinese, who were to be removed beyond muni-

cipal boundaries or, alternatively, placed in

official Chinese ghettos. 2/ And in 1880,

California passed a law prohibiting the issuance

of licenses for the transaction of any business

or occupation to “any alien ineligible to become

an elector in the state"® --a class that was

predominantly Chinese.2/

Other state statutes directed against

Asian immigrants were couched in overtly racial

terms. In the area of education, for example,

California's public education law was amended

in 1860 to permit separate schools for the

education of "Negroes, Mongolians and Indi-

5. Other provisions in the 1879 State Consti-

tution prohibited the employment of Chinese by

any California corporation, Art. XIX, § 3;

barred public employment of Chinese, id. § 3;

and denied Chinese the right to vote and to

own or inherit real property. Art. I.

6. Ch. 51, § 1, 1880 Cal. Stats.

7. See E. Sandmeyer, The Anti-Chinese Move-

ment in California 74 (1939).

~~

ans, "2/ but later repealed for economic reasons. 2’

When efforts to exclude Chinese and Japanese

children altogether from public education failed,

see, e.g., Tape v. Hurley, 66 Cal. 473, 475,

6 P. 129 (1885) (Chinese); Aoki v. Deane

(Japanese), specific statutory authority was

created for the establishment of separate

schools for Chinese and Japanese children. 10/

A major turning point occurred when Congress

passed the Chinese Exclusion Act of 1882. il/

The Act initially suspended all immigration of

8. Ch. 329, § 8, 1860 Cal. Stats.; see also

ch. 159, 1863 Cal. Stats. 194. The constitu-

tionality of the separate school law was upheld

in Ward v. Flood, 48 Cal. 36 (1874).

9. General School Law of California,§ 1662 at

14, 1880 Cal. Stats.; see C. Wollenberg, All

Deliberate Speed, Segregation and Exclusion in

California Schools, gee 1975 24-26 (1976).

10. Ch. 117, § 1, 1885 Cal. Stats. 99 (Chinese) ;

ch. 193, § 33, 1893 Cal. Stats. 253 (Indians);

ch. 685, § 1, 1921 Cal. Stats. 1160 (Japanese).

See generally C. Wollenberg, All Deliberate

Speed, id. at 28-107; J. Hendrick, The Educa-

849-1970

tion of Non-Whites in California, 1 -

(1977).

ll. Act of May 6, 1882, ch. 126, § 1, 22 Stat.

58.

=

Chinese laborers for ten years and explicitly

prohibited Chinese aliens from becoming citi-

zens .+2/ The Act was extended several times

until 1904, when a permanent and total ban

against all Chinese immigration was instituted .22/

Through its unprecedented use of immigration

laws to create an official national policy of

racial discrimination toward Chinese immigrants,

Congress laid the groundwork for future state

laws that would discriminate against all Asian

immigrant groups.

The federal immigration classification,

14/

"aliens ineligible for citizenship,"— soon*

12. Id. § 14.

13. Act of July 5, 1884, ch. 220, § 4, 23

Stat. 115; Act of Oct. 1, 1888, ch. 1064, § l,

25 Stat. 504; Act of April 27, 1904, 33 Stat.

428. This legislation was upheld in The Chi-

nese Exclusion Case, 130 U.S. 581, 609 (1889).

14. See generally Gordon, "The Racial Barrier

to American Citizenship,” 93 U. Pa. L. Rev.

237 (1945). Ineligibility for citizenship

later became the basis for excluding all

Japanese immigration to the United States.

Immigration Act of 1924, ch. 190, 43 Stat.

153; see 2 U.S. Code Cong. & Adm. News 1653

(1952).

-10-

emerged as § code words for state-sanctioned

racial discrimination against Asians, primarily

the Japanese. A series of alien land laws

passed in the 1920's predicated ownership of

land upon eligibility for citizenship. The

Supreme Court in Ozawa v. United States, 260

U.S. 178, 195 (1922), samctioned the applica-

tion of such laws against "the brown and yellow

races of Asia," and state courts routinely

upheld their validity as applied to Asians .2>/

15. See, e.g., California Delta Farms, Inc.

v. Chinese American Farms, Inc., 20/ Cal. 298,

’ P. ’ ; State v. Hiraba-

ashi, 233 P. 948, 949 (S. Ct. Wash. 1925),

att’ad, 246 P. 577 (1926), aff'd, 277 U.S. $72

(1928); see also Terrace v. Thompson, 263 U.S.

197, 216-21 (1923); Porterfield v. Webb, 263

U.S. 225, 233 (1923); Webb v. O'Brien, 263 U.S.

313, 324 (1923); Frick v. Webb, 263 U.S. 326,

334 (1923); Cockrill v. California, 268 U.S.

258, 263 (1925). See generally McGovney, "The

Anti-Japanese Land Laws of California and Ten

Other States," 35 Cal. L. Rev. 7 (1947); Fer-

guson, "The California Alien Land Law and the

Fourteenth Amendment," 35 Cal. L. Rev. 61

(1947).

elle

In addition, the facially neutral requirement

of "ineligibility for citizenship" was used

to exclude Japanese from incorporating busi-

nesses, +°/ owning or possessing firearms, +/

securing public employment , 22/ and obtaining

pawnbroker licenses+2/ and commercial fishing

licenses. 22/

Alien documentation requirements also

developed initéaliy as a device for racial

discrimination against Asians. Section 4 of

the Chinese Exclusion Act of 1882 was apparently

the earliest documentation requirement for

aliens residing in the United States. It

required that all Chinese laborers planning to

16. See Yamashita v. Hinkle, 260 U.S. 199, 200

(1922).

17. Game Laws, ch. 339, § 2, 1923 Cal. Stats.

696.

18. Ch. 417, 1915 Cal. Stats. 690.

19. See Asakura v. City of Seattle, 265 U.S.

332, 343 (1924) (provision invalidated).

26. Fish & Game Code, § 990 as amended, ch.

181, § 3, 1945 Cal. Stats. 660; see Takahashi

v. Fish & Game Comm'n, 334 U.S. 410, 426 (1948)

(Murphy, J., concurring).

-l12-

leave the United States establish their legal

presence in this country and provided that

only those laborers holding a "certificate of

registration" were allowed to re-enter the

United States. ‘Although the documentation

requirement was repealed in 1888, it was sub-

stituted by a more malevolent statute which

prohibited all Chinese laborers from returning

to this country and voided all registration

certificates previously issued for this

purpose. 22/

Shortly thereafter, California sought to

impose its own registration requirements to

restrict further the rights of Chinese within

the state. 22/ According to the statute, no

Chinese were to be admitted into the state

without such a certificate, and they would be

subject to deportation if they could not pro-

23/

duce such identification.— This documenta-

21. See The Chinese Exclusion Case, supra,

130 U.S. at 581, 599.

22. Ch. 140, § 13, 1891 Cal. Stats.

23. Id. § 6.

-13-

tion requirement was further used to burden

the rights of Chinese to use public transpor-

tation. Section 3 of the Act required agents

of all railroads, stagecoach lines and steam-

ship lines in California to demand that Chinese

produce a certificate of residence before they

could purchase tickets on public carriers.

The failure to produce such a certificate

allowed agents to arrest the "undocumented"

Chinese alien. Although this statute was sub-

sequently declared in excess of state power,

Ex Parte Ah Cue, 101 Cal. 197, 198 (1894), a

California delegation later pressured Congress

to adopt stricter registration requirements

24/

for Chinese .—

24. The Geary Act of 1892, ch. 60, 27 Stat.

25, required all Chinese laborers to obtain

certificates of residence within one year

after passage of the act, or they would be

deemed unlawfully in the United States and sub-

ject to arrest. Section 6 of the Act further

provided that a Chinese could be deported un-

less he could "establish clearly to the satis-

faction of [a] judge that by reason of accident

(footnote continued on next page)

o14-

The state statutes which built upon

racist immigration laws to discriminate

against Asians are now an anachronism. How-

ever, their legacy stands as a continuing

reminder of how immigration classifications

and documentation requirements were used as

devices for discriminating against racial

minorities.

II. SECTION 21.031 AND OTHER STATE

LEGISLATIVE CLASSIFICATIONS

DIRECTED AGAINST UNDOCUMENTED

ALIENS WILL INEVITABLY HAVE A

DISCRIMINATORY IMPACT UPON

RACIAL AND ETHNIC MINORITIES.

It is undisputed that the primary victims

of section 21.031 of the Texas Education Code

are children of Mexican origin, since almost

(footnote continued from previous page)

sickness, or other unavoidable cause, he has

been unable to procure his certificate, and

to the satisfaction of the court, and by at

least one credible white witness, that he was

a resident of the United States at the time

of the passage of the act." The Supreme Court

upheld the constitutionality of this statutory

provision in Fong Yue Ting v. United States,

149 U.S. 698, 7 (1893)...

=15=

all undocumented aliens in Texas are Mexican .22/

Because immigration status has historically been

used to discriminate against racial and ethnic

minorities, 2°/ section 21.031 should be con-

sidered within the broader context of discrimi-

nation against Hispanics as a minority group

in Texas.

Courts have noted that Hispanics are an

identifiable ethnic minority entitled to

protection under the Equal Protection Clause,

see, e.g., Keyes v. School District No. l,

413 U.S. 189, 197 (1973), and it is well

established that Hispanics in Texas have been

subject to a long history of invidious dis-

crimination in such areas as education, employ-

ment, economics, health and politics. 22/ In

25. See Doe v. Plyler, 628 F.2d 448, 451 n.6

(1980).

26. See point I supra.

27. Graves v. Barnes, 343 F. Supp. 704, 728

(W.D. Tex. 1972), aff'd sub nom., White v.

Regester, 412 U.S. 755 (1973); see also Briscoe

Vv. Bell, 432 U.S. 404, 406 & n.2 (1977); Cas-

taneda v. Partida, 430 U.S. 482, 487, 495

; Hernandez v. Texas, 347 U.S. 475, 478

(1954).

-16-

particular, courts have recognized the state's

repeated failure to provide adequate educa-

tional and bilingual services to Hispanic

28/ In view of the

children in Texas schools.—

widespread discriminatory practices against

Hispanics in Texas, particularly in the area

of education, section 21.031 should be regarded

as yet another example of discrimination against

Mexicans based on their national origin.

hdl Sees wl ee El 8 Se

Tex. 1976), atf'd, 593 F.2d 577 (Sth Cir.

1979); United States v. Texas Education Agenc

(Austin Independent School District), 467) F. rm

848, 863-04, 669-70 (5th Cir. 1070) (en banc) ;

532 F.2d 380, 391 (Sth Cir. 1976); 564 F.2d

164, 174 (Sth Cir. 1977), cert. denied, 99 S.

Ct. 3106 (1979); Zamora v. New Braunsfels In-

de nent School District, 519 F.2d 1084, 1084

r. 19/75) (per curiam); Morales v. Shan-

non, 516 F.2d 411 (5th Cir. 1975), cert. denied,

423 U.S. 1034 (1975); Cisneros v. Corpus Christi

Independent School District, 324 F. Supp. 599,

ETI ooT (S.D. Tex. 1970), atf'd, 467 F.2d 142

(Sth Cir. 1972) (en banc), cert. denied, 413

U.S. 930 (1973).

oi Je

Moreover, in light of current immigra-

tion trends, the discriminatory impact of

statutory classifications directed at undocu-

mented aliens will fall primarily upon aliens

of certain distinct racial and ethnic groups--

i.e., Mexicans and Asians. Largely because

of previous restri¢étive immigration laws, 22/

numerical quotas for Mexico, the Philippines,

China and Hong Kong have been continuously

oversubscribed, 22/ while the quotas for Euro-

29. Mexican immigration was cut by almost 50%

when the 1976 amendments to the Immigration

and Nationality Act imposed a per-country

limitation of 20,000 upon Western Hemisphere

countries. Act of October 3, 1965, Pub. L.

No. 94-571, 66 Stat. 163; see U.S. Comm'n on

Civil Rights, The Tarnished Golden Door: Civil

Rights Issues in Immigration 15 (1980) (herein-

after "The Tarnished Golden Door").

For a general discussion about immigration

restrictions upon Asians, see M. Coolidge,

Chinese Immigration, supra; E. Sandmeyer, The

Anti-Chinese Movement in California, supra; F.

Chuman, The Bamboo People: The Law and Japanese

Americans (1976); H. Lasker, Filipino immigra-

tion (1931).

30. See The Tarnished Golden Door, id. at 17.

There is an annual limit of 20,000 immigrants

for each independent country, Immigration and

Nationality Act § 202(a), 8 U.S.C. § 1152(a)

(1980), and a limit of 600 immigrants for each

dependent area, such as Hong Kong. Id. § 202(c);

8 U.S.C. § 1152(c) (1980).

@18§@

. pean and other countries are seldom filled.

In August 1981, for example, certain family

relatives of citizens and resident aliens

seeking to emigrate from the Philippines faced

waiting periods of three to eleven years,

while the spouses and unmarried sons and

daughters of Mexican resident aliens faced

backlogs of thirteen years. In addition, there

was a waiting period of up to twelve years for

certain immigrant workers from Hong Kong and

the Philippines .22/ Given the enormous backlogs

and lengthy delays in the visa petitioning

process for Mexican and Asian immigrants, it

is not surprising that many will seek to come

to the United States even temporarily and

eventually become part of this country's un-

documented alien population. 22/

31. See U.S. Dep't of State, Bureau of Con-

sular Affairs, Immigrant Numbers for August

1981, Vol. V, No. ll (1981).

32. Although the total number of Asian undocu-

mented aliens is unknown, at least 9,500 to

16,000 have been apprehended annually by the

Immigration and Naturalization Service over

(footnote continued on next page)

In Yick Wo v. Hopkins, 118 U.S. 356 (1886),

this Court invalidated a facially neutral Cali-

fornia laundry ordinance which revealed none of

the prejudices against Chinese aliens to whom

it had been applied exclusively. The Court

(footnote continued from previous page)

the past few years. Most Asian undocumented

aliens entered the country with valid entry

documents but subsequently violated the terms

of their visas. See North, "Asia-Pacific

Illegal Aliens: A Discussion of Their Status,

Limitations, and Rights Under the Law," Civil

Rights Issues, supra note l, at 238-39.

With respect to Asian undocumented aliens,

it is the experience of amicus that many live

in densely-populated Asian American communi-

ties of urban areas throughout the country.

Most are relegated to low-paying jobs with

long working hours, often as garment factory,

restaurant or health care workers. Fearful

of reprisals by their bosses, Asian undocumented

aliens hesitate to complain about their employ-

ers' frequent refusals to pay minimum wage or

overtime compensation and are afraid to par-

ticipate in worker organizing efforts to

secure better working conditions. They are

similarly reluctant to complain to landlords

about poor housing conditions, to seek police

assistance if they are victims of crime, or to

obtain medical care in the event of illness.

At the same time, Asian undocumented aliens pay

more in taxes than they receive in social ser-

vices and make substantial contributions to

the well-being of Asian American communities

and the general society. See generally Civil

Rights Issues, id. at 181, 582.

concluded: -20-

The fact of this discrimina-

tion is admitted. No reason

for it is shown, and the con-

clusion cannot be resisted,

that no reason for it exists

except hostility to the race

and nationality to which the

petitioners belong, and which

in the eye of the law is not

justified.

Id. at 374.

Like the superficially neutral state

ordinance at issue in Yick Wo v. Hopkins,

Supra, section 21.031 apparently applies to

undocumented aliens of all races and

nationalities. However, the classification

is inevitably discriminatory against Mexican

aliens, in light of the ethnic background of

virtually all undocumented aliens in Texas and

the long history of discrimination against

Hispanics in that state. Accordingly, section

21.031 should be subject to the heightened

judicial scrutiny traditionally accorded to

racial and national origin classifications.

CONCLUSION

For the reasons set forth above, the

judgment of the court below should be

affirmed.

Respectfully submitted,

MARGARET FUNG

STANLEY MARK

Asian American Legal Defense

and Education Fund

350 Broadway, Suite 308

New York, New York 10013

(212) 966-5932

BILL LANN LEE*

10 Columbus Circle

Suite 2030

New York, New York 10019

(212) 586-8397

Attorneys for Amicus Curiae

*Attorney of Record

Dated: September 28, 1981

New York, New York