Amicus Brief — Plyler v. Doe

OCTOBER TERM, 1980

JAMES PLYLER and STATE OF TEXAS, et al.,

Appellants,

v.

J. and R. DOE, as guardian ad litem for I. Doe, et al.,

Appellees.

IN RE: ALIEN CHILDREN EDUCATION LITIGATION

STATE OF TEXAS AND TEXAS EDUCATION AGENCY,

Appellants,

v.

UNITED STATES OF AMERICA,

Intervenor-Appellee,

and

CERTAIN NAMED AND UNNAMED

UNDOCUMENTED ALIEN CHILDREN,

Appellees.

On Appeal From The United States Court Of Appeals

For The Fifth Circuit

Brief of Amici Curiae School Districts: Harlingen Consolidated

Independent School District, Mission Independent School District,

Brownsville Independent School District, McAllen Independent

School District, and San Benito Independent School District,

In Support of Appellants

Orrin W. Jonnson, Esq. Travis Hrester, Esq.

402 East Van Buren P. O. Drawer 3725

Harlingen, Texas 78550 McAllen, Texas 78501

(512) 423-0213

Of Counsel

NEAL KIno, Esq. Jack Wrecu, Esa.

P. O. Box 1025 55 W. Elizabeth

Mission, Texas 78472 Brownsville, Texas 78520

Tony Martinez, Esq. Attorneys for Amici Curiae

954 E. Madison, Suite 3

Brownsville, Texas 78520

QUESTIONS PRESENTED

1. Does Section 21.031 of the Texas Education Code,

which requires nonresident citizens and nonresident aliens

including illegal aliens, to pay tuition in public schools,

but which exempts all resident citizens and resident aliens

from such charges, contain an invalid classification in

violation of the Equal Protection Clause of the Four-

teenth Amendment?

2. May Section 21.031, which provides for tuition-

free education in public schools only for “residents” of

the school district, define illegal aliens as nonresidents of

the school district?

3. Is there a rational basis for the classification be-

tween residents and nonresidents created by Section

21.031?

ul

TABLE OF CONTENTS

Page

Cusstions PeesMMted 2... veccscccccsvcsscccccevccvcces 1

Te GE BITS oo cc ccc cccccnccnscccvesccccness 1

Constitution and Statutes Involved ...........000e000: v

ES MED oc caesscevnererevevcerceseces 1

SURREY GE AUIEEE oc cc cc ccccvccvvcccdcccccccccess 3

Argument

I. SECTION 21.03! OF THE TEXAS EDUCATION

CODE DOES NOT CONTAIN ANY CLASSIFI-

CATION IN TERMS OF ALIENAGE OR CITI-

ZENSHIP NOR ANY CLASSIFICATION BE-

TWEEN LEGAL AND ILLEGAL ALIENS. THE

STATUTE DISTINGUISHES BETWEEN RESI-

DENTS—WHETHER CITIZENS OR ALIENS—

AND NONRESIDENTS—WHETHER CITIZENS

Be PUNE. bos Cec ccicccccss:cdbssboscoeteces 4

II. SECTION 21.031 PROVIDES ONLY THAT IL-

LEGAL ALIENS SHALL NOT BE TREATED AS

RESIDENTS FOR PURPOSES OF TUITION-

FREE EDUCATION IN THE PUBLIC SCHOOLS 7

Ill. THERE ARE REASONABLE BASES FOR THE

CLASSIFICATION CREATED BY SECTION

EE. VOPR S Cos bdceecdd ccvernerecccsbetsbense 10

i Clo cede cee has aden aneobanceteneus 20

TABLE OF AUTHORITIES

CASES Page

Ambach v. Norwich, 441 U.S. 68 (1979) ...........055. 6

Anwo v. 1.N.S., 607 F.2d 435 (D.C. Cir. 1979) ........ 10

Arredondo v. Brockette, 648 F.2d 425 (Sth Cir., Unit A,

i toc ashkeeek byes psaks beheethgubeeende ss a 9,10, 11,13

Arredondo v. Brockette, 482 F.Supp. 212 (S.D. Tex. 1979) 16

Boe v. Wright, 648 F.2d 432 (Sth Cir., Unit A, 1981) ... 11,18

Castillo-Felix v. 1.N.S., 601 F.2d 459 (9th Cir. 1979) ... 10

CASES Page

Clarke v. Redeker, 259 F.Supp. 117 (S.D. lowa 1966) ... 6

De Leon v. Harlingen Consol. Indep. School Dist., 552 S.W.

oe Og. “ya errr 10, 11, 16

Doe v. Plyler, 458 F Supp. 569 (E.D. Tex. 1978), aff'd 628

F.2d 448 (Sth Cir. 1980) ..... 0. ccc cece eeeeees 12, 13, 15, 16,17

Dor} v. Skolnik, 280 Md. 101 (1977) ......cs cee eeeeees 9

East Texas Guidance & Achievement Center t. Brockette,

431 F.Supp. 231 (E.D. Tex. 1977) .......ceeeeeeees 12

Elkins v. Moreno, 435 U.S. 657 (1978) «0... cccece ues 7,8,10

Hernandez v. Houston Indep. School Dist., $84 S.W.2d \21

(Tex. Civ. App. 1997) ccccccccccccccccveseccnesecs 11

Hooban v. Boling, 503 F.2d 648 (6th Cir. 1974) ......... 6

In re: Alien Children Education Litigation, 501 F Supp. 544

CBD. Tem, IFGR) cccccccccccccececvocccccccccscecee 16,17

In re Scriver, 9 F.Supp. 478 (W.D.N.Y. 1935) ......... 10

Johns v. Redeker, 406 F.2d 878 (8th Cir. 1969) ........ 6

Kelm v. Carlson, 473 F.2d 1267 (6th Cir. 1973) ......... 6

Mathews v. Diaz, 426 U.S. 67 (1976) ....... ccc ceeecees 7

Memorial Hospital v. Maricopa County, 415 US. 250

CBGFS) cocccceccecccccceceseccucecccccccuceevescce 6,7

Michelson v. Cox, 476 F.Supp. 1315 (S.D. Iowa 1979) .. 6

Milliken v. Bradley, 418 U.S. 717 (1974) .......0eceees 3

Montgomery v. Douglas, 388 F.Supp. 1139 (D.D.C. 1974) 6

Pelletreau v. Savage, 381 F.Supp. 582 (D.N.H. 1974) .. 6

San Antonio Indep. School Dist, v. Rodriguez, 411 US. 1

CRUUED: cues nskb cteedeeedvnsn46ee06eGpeusdeseens 11,18

Starns v. Malkerson, 326 F.Supp. 234 (D. Minn. 1970),

GE, GE8 TR. GED GIGI) eciccccceccccccccceccccess 12

Sturgis v. Washington, 368 F Supp. 38 (W.D. Wash. 1973),

aff'd mem., 414 US. 1057 (1973) .....cccecsscceees 6

Toll v. Moreno, 284 Md. 425 (1979) ......cccceeeeees a

United States v. Anastasio, 120 F Supp. 435 (D.N.J. 1954) 10

United States v. Chandler, 152 F.Supp 169 (D.Md. 1957) 10

United States v. Corsi, 287 U.S. 129 (1932) ........... 10

United States v. Day, 43 F.2d 917 (2d Cir. 1930) ...... 10

United States v. Parisi, 24 F.Supp. 414 (D.Md. 1938) ... 10

United States v. Riela, 337 F.2d 986 (3d Cir. 1964) ... 10

United States v. Texas, 506 F Supp. 405 (E.D. Tex. 1981) 17

Viandis v. Klime, 412 US. 441 (1973) ..... cc ecccceees 5, 11,13

Weaver v. Kelton, 357 F Supp. 1106 (E.D. Tex. 1973) ... 6

Werblow v. United States, 134 F.2d 791 (2d Cir. 1943) ... 10

IV

Page

STATUTES

Ps Scien ceupeae'ks vsckeees esate ceeteces 8

ENS ak Sia 5 Soe ec, cSuknadeace das eeecs v1, 20

nn chidutisscbhschh sdnckuesicudivechscss 20

sa Sa ciee os ones Sekeadsereedebeus 19

ee DG EER | ooo cvccceeecdeevcce de 6< passim

Texas Education Code, §§ 21.061-21.081 ................ 13

OTHER

r= ae The Houston Post, January 25, 1981, at 68FF,

SE Cue cact ache eaWaks sat chase adsedernseeeenses 15

1, The Global 2000 Report to the President: Entering the

Twenty-First Century (U.S. Govt. Printing Office) 1980 15

Hensley, Mexican Immigrant-Alicn Student Study 1975-76,

SEUEE shke caubauteesdenes ce ovcdeuees soseaccecevens 2, 16,17

Mexico Const. tit. I, ch. I, art. 3 (1917, amended 1946) 17

Presidential Proclamation No. 4830, 46 Fed. Reg. 20,135

SEP cCecbsrs cel bese hiedanas és eténdenenedees eoes 19

Presidential Proclamation No. 4733, 45 Fed. Reg. 16,161

SUED eVakeehdudoseseshssecneeeesesesbadeccesesve 19

Presidental Proclamation, 51 A.B.A.J. 389 (1965) ........ 19

Presidential Proclamation, 46 A.B.A.J. 409 (1960) ........ 19

Report to the Congress of the United States by the Comp-

troller General, (November 5, 1980), p. 16, U.S. General

Accounting Office, GGD-81-4 2.00.0... eee eee eee 15

Rhyne, Law Day-U.S.A.; Emphasizing the Supremacy of

BO, Se Eis CER LOOMED co cacuracevesevveccedess 19

I The Survey of Buying Power Data Service, 1980 (Sales

& Marketing Management) ..........ccccccccccececs 2

US. Dept. of Commerce, Advance Reports, 1980 Census

of Population and Housing, Texas, Pub. No. PHC 80-V-

a SE MEE eahensbeuscud ntbecevs dneeteses's 2

U.S. News & World Report, August 18, 1980 ........... 15

Vv

CONSTITUTION AND STATUTES INVOLVED

THE FOURTEENTH AMENDMENT, UNITED STATES CON-

STITUTION, which provides in pertinent part:

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property without due pro-

cess of law; nor deny to any person within its juris-

diction the equal protection of the laws. |

Texas EpucaTion Cope § 21.031, which 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 admit 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.

vi

8 U.S.C. § 1324, which provides in pertinent part:

(a)

Any person including the owner, operator, pilot,

master, commanding officer, agent, or consignee of

any means of transportation who—

(3)

(4)

* * *

willfully or knowingly conceals, harbors, or

shields from detection, or attempts to conceal,

harbor, or shield from detection, in any place

including any building or any means of trans-

portation; or

willfully or knowingly encourages or induces,

or attempts to encourage or induce, either di-

rectly or indirectly, the entry into the United

States of —

any alien, including any alien crewman, not

duly admitted by an immigration officer or not

lawfully entitled to enter or reside within the

United States under the terms of this Act or

any other law relating to the immigration or

expulsion of aliens, shall be guilty of a felony,

and upon conviction thereof shall be punished

by a fine not exceeding $2,000.00 or by im-

prisonment for a term not exceeding five years,

or both, for each alien in respect to whom any

violation of this subsection occurs: Provided,

however, That for the purposes of this section,

employment (including the usual and normal

practices incident to employment) shall not be

deemed to constitute harboring.

Nos. 80-1538 and 80-1934

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

JAMES PLYLER and STATE OF TEXAS, et al.,

Appellants,

Vv.

J. and R. DOE, as guardian ad litem for I. Doe, et al.,

Appellees.

IN RE: ALIEN CHILDREN EDUCATION LITIGATION

STATE OF TEXAS AND TEXAS EDUCATION AGENCY,

Appellants,

v.

UNITED STATES OF AMERICA,

Intervenor-A ppellee,

and

CERTAIN NAMED AND UNNAMED

UNDOCUMENTED ALIEN CHILDREN,

Appellees.

On Appeal From The United States Court Of Appeals

For The Fifth Circuit

Brief of Amici Curiae School Districts: Harlingen Consolidated

Independent School District, Mission Independent School District,

Brownsville Independent School District, McAllen Independent

School District, and San Benito Independent School District,

In Support of Appellants

INTEREST OF AMICI CURIAE

The amici curiae are school districts of the State of

Texas located in the delta area known as the Lower Rio

Grande Valley, in the southernmost portion of the state.

2

They lie on or near the Rio Grande River, which forms

the largest portion of the boundary between the United

States and Mexic

The population of the two counties in which the amici

school districts are situated is predominately of Hispanic

origin—more than seventy-five percent of the persons in

Cameron County and more than eighty percent of those

in Hidalgo County are of Spanish descent. U. S. Dept.

of Commerce, Bureau of the Census, Advance Reports,

1980 Census of Population and Housing, Texas, Pub.

No. PHC 80-V-45, pp. 7, 17 (March 1981). The two

counties are also among the fastest growing areas in

the nation. Between 1970 and 1980, the population of

Cameron County increased by forty-nine percent, and

Hidalgo County experienced a fifty-six percent increase

in population. /d.

In contrast to its surging population growth, the per

capita income of the Valley is near the lowest in the

United States. According to the latest figures available,

the Hidalgo County metropolitan market (McAllen-

Pharr-Edinburg SMSA) ranked /ast out of the three

hundred largest such markets in the country in terms

of per capita disposable personal income. I The Survey

of Buying Power Data Service, 1980 (Sales & Marketing

Management) Table 3-8. The Cameron County metropoli-

tan market (Brownsville-Harlingen-San Benito SMSA)

ranked 298th out of three hundred in the same category.

Id. in addition, the ad valorem tax bases of these border

school districts are well below average. Hensley, Mexican

Immigrant-Alien Student Study 1975-76, p. 66 (1976).

These overburdened school districts are faced with the

task of bearing the primary responsibility for educating

3

illegal aliens from Mexico if the Texas statute in question

is held to be unconstitutional. It is they who will have

to bear a disproportionate part of the financial costs that

will result from a ruling of unconstitutionality. It is their

students who will suffer and their educational programs

which must be diluted if they are required to educate a

large number of illegal aliens free of tuition. Despite the

direct impact on them of adjudications of unconstitution-

ality, these districts, like those of the suburban areas

around the City of Detroit in the Detroit school desegre-

gation case, Milliken v. Bradley, 418 U.S. 717, 729-30

(1974), are not parties to and have not participated in,

the litigation that will decide their fate. These school

districts seek to have the Court understand their position

on the validity of the Texas statute in question, a position

which has only been touched upon and not pressed by

the parties to the litigation.

SUMMARY OF ARGUMENT

Section 21.031 of the Texas Education Code creates a

classification between residents, whether citizens or aliens,

and non-residents, whether citizens or aliens. The state

may validly create such a classification for tuition pur-

poses in its schools. The statute does not create a classi-

fication based on citizenship or alienage, but even if it

did, such a classification would be valid insofar as ap-

plicable to illegal immigrants.

This Court has ruled in a similar setting that the

question of whether an alien may establish residency with-

in a state for tuition purposes is purely a matter of state

law. The Texas statute merely states Texas law that a

person unlawfully within the state may not thereby estab-

4

lish the domicile necessary to qualify for tuition-free edu-

cation.

If illegal entrants are entitled to equal protection of

the laws, the proper test to be applied in determining

the validity of Section 21.031 is the rational basis test.

The classification created by the statute is rationally re-

lated to the legitimate state interest of providing free

public education to Texas residents while at the same

time preserving the limited resources available for such

education. The classification in Section 21.031 is also

reasonably related to the interest of Texas in deterring

illegal entry into the country and is in harmony with

federal immigration policy. Finally, the classification is

rationally related to the state’s interest in teaching its

children respect for, and obedience to, the rule of law

in our society.

ARGUMENT

I. SECTION 21.031 DOES NOT CONTAIN ANY

CLASSIFICATION IN TERMS OF ALIENAGE

OR CITIZENSHIP NOR ANY CLASSIFICATION

BETWEEN LEGAL AND ILLEGAL ALIENS.

THE STATUTE DISTINGUISHES BETWEEN

RESIDENTS—WHETHER CITIZENS OR ALI-

ENS—AND NON-RESIDENTS—WHETHER CI-

TIZENS OR ALIENS.

The Texas statute in issue does not contain a classifi-

cation on the basis of citizenship or alienage. Resident

citizens and resident aliens are both entitled to tuition-

free education. Non-resident citizens and non-resident

aliens are both required to pay tuition. The classification

was based upon a judgment by the state that a scho.!

5

district should not provide free education for those who

are not legally resident or domiciled within the school

district, whether alien or citizen, at the cost of those

who are residents. Surely it does not test the bounds of

constitutional classification for the state to require the

local school districts to afford services to those who are

fully and properly ensconced within the districts while

denying it to those who are not. This Court has made

clear in its rulings that a state may properly treat resi-

dents and non-residents differently in determining tuition

charges for educational benefits within its schools. Thus,

in Vlandis v. Kline, 412 U.S. 441, 445, 452-53, 453-54

(1973), the Court said:

The appellees do not challenge, nor did the Dis-

trict Court invalidate, the option of the State to

classify students as resident and non-resident stu-

dents, thereby obligating non-resident students to

pay higher tuition frees than do bona fide residents.

The State’s right to make such a classification is

unquestioned here.

*_ * *&*

We fully recognize that a State has a legitimate

interest in protecting and preserving the quality of

its colleges and universities and the right of its own

bona fide residents to attend such institutions on a

preferential tuition basis.

* * *

The State can establish such reasonable criteria

for in-state status as to make virtually certain that

students who are not, in fact, bona fide residents of

the State, but who have come there solely for edu-

cational purposes, cannot take advantage of the in-

state rates.

6

See also, Hooban v. Boling, 503 F.2d 648, 650 (6th Cir.

1974); Kelm v. Carlson, 473 F.2d 1267, 1268 (6th Cir.

1973); Johns v. Redeker, 406 F.2d 878, 883 (8th Cir.

1969); Michelson v. Cox, 476 F.Supp. 1315, 1319 (S.D.

Iowa 1979); Montgomery v. Douglas, 388 F.Supp. 1139,

1142 (D.D.C. 1974); Pelletreau v. Savage, 381 F.Supp.

582, 585 (D.N.H. 1974); Sturgis v. Washington, 368 F.

Supp. 38 (W.D. Wash. 1973), aff'd mem., 414 U.S. 1057

(1973); Weaver v. Kelton, 357 F.Supp. 1106, 1110

(E.D. Tex. 1973); Clarke v. Redeker, 259 F.Supp. 117,

123-24 n. 7 (S.D. Iowa 1966).

Thus, the question at hand is whether a state is re-

quired by the equal protection clause to treat illegal aliens

as residents for purposes of providing educational bene-

fits to those persons. It is a question which the court of

appeals below failed to address because that court as-

sumed, incorrectly, that the Plaintiff children were resi-

dents of the school districts. As we shall show in the

next section of this brief, there can be no such require-

ment for treating illegal aliens as residents.

Even if, however, the classification created by the

statute were one between citizens and noncitizens, or

between legally admitted aliens and illegal aliens, such

a classification would still be valid. Indeed, it would not

be a classification made by the State of Texas, but a

classification made by Congress, which has plenary au-

thority over immigration and naturalization. Legal aliens

are in this country at the invitation and tolerance of the

United States. As such, they are not subject to discrimina-

tory classification by the States, except for overriding

policy reasons. E.g., Ambach v. Norwick, 441 U.S. 68

(1979); Memorial Hospital v. Maricopa County, 415

7

U.S. 250 (1974). Illegal aliens, however, stand on a

different footing. As this Court noted in Mathews v. Diaz,

426 U.S. 67, 80 (1976):

[The] fact that Congress has provided some welfare

benefits for citizens does not require it to provide

like benefits for all aliens. Neither the overnight

visitor, the unfriendly agent of a hostile foreign

power, the resident diplomat, nor the illegal entrant

can advance even a colorable constitutional claim

to a share in the bounty that a conscientious sov-

ereign makes available to its own citizens and some

of its guests. [Emphasis in original.]

The proposition becomes more cogent in light of the fact

that an obligation on the part of the school district to

provide educational facilities to illegal aliens results in

a proportionate diminution in the educational facilities

that it can make available to its resident citizens and

resident legal aliens.

II. SECTION 20.031 PROVIDES ONLY THAT IL-

LEGAL ALIENS SHALL NOT BE TREATED AS

RESIDENTS FOR PURPOSES OF TUITION-

FREE EDUCATION IN THE PUBLIC SCHOOLS.

As heretofore stated, the real question in this case is

whether Texas is forbidden to treat illegal aliens as non-

residents of a school district and, therefore, not qualified

to receive free tuition. A cognate question was reviewed

by this Court in Elkins v. Moreno, 435 U.S. 647 (1978).

There, the question was whether Maryland had to treat

“G-4 aliens,” aliens with a nonimmigrant and temporary

status in the United States, as domiciled within the state

for purposes of receiving reduced tuition at the University

of Maryland. “Accordingly, the question whether G-4

aliens have the capacity to acquire Maryland domicile is

potentially dispositive of this case.” 435 U.S. at 662. The

Court held that the answer to this question was dependent

on federal statutory law and Maryland common law.

In Elkins, this Court ruled that the federal statutory

law did not require that G-4 aliens maintain a permanent

residence abroad. Here, it is clear that the immigration

laws do so require as to illegal aliens. It cannot be said

of illegal aliens what the Court said of nonimmigrant

aliens in Elkins, 435 U.S. at 666-67:

Under present law, therefore, were a G-4 alien to

develop a subjective intent to stay indefinitely in the

United States, he would be able to do so without vio-

lating either the 1952 Act, the Service’s regulations,

or the terms ‘of his visa. Of course, should a G-4

alien terminate his employment with an international

treaty organization, both he and his family would

lose their G-4 status. . . . Nonetheless, such an alien

would not necessarily be subject to deportation nor

would he have to leave and re-enter the country in

order to become an immigrant.

Under the federal immigration laws, illegal aliens may

not remain within this country and are subject to im-

mediate deportation. 8 U.S.C. § 1227. While legal aliens

may change their status from nonimmigrant to immigrant,

435 U.S. at 667-68, illegal aliens are not equally able to

change their status from illegal to legal.

The fact that the laws of the United States did not

preclude a G-4 alien from establishing domicile did not

resolve the issues in Elkins, for the Court made it clear

that whether such an alien could establish domicile in

9

Maryland was a matter of Maryland law: “[T]he ques-

tion whether G-4 aliens can become domiciliaries of

Maryland is potentially dispositive of this case and is

purely a matter of state law.” 435 U.S. at 698. The case

was accordingly remanded to the Maryland Court of

Appeals to resolve the question.

The Maryland Court of Appeals held that a G-4 alien

could establish domicile in Maryland. Toll v. Moreno,

284 Md. 425, 444 (1979). In doing so, however, it care-

fully delineated the distinction between aliens entitled to

remain in this country under the immigration laws and

those who are illegally here. It quoted from an earlier

Maryland Court of Appeals decision, Dorf v. Skolnik,

280 Md. 101, 116-17 (1977):

If under federal law a particular individual must

leave this country at a certain date, or cannot remain

here indefinitely, then he could not become domi-

ciled in Maryland. Any purported intent to live here

indefinitely would be inconsistent with law. It would

at most be an unrealistic subjective intent, which is

insufficient under Maryland law to establish domi-

cile. [Quoted, 284 Md. at 442-43.]

The Texas law on the question of the meaning of resi-

dence for purposes of its educational code is equally

clear. The courts have defined “resident,” both for citi-

zens and aliens. Residence means the permanent abode

of the school child or his parents. As recently recognized

by the Court of Appeals for the Fifth Circuit, the concept

of residence under Texas law means something more

than mere physical presence—it “is more closely related

to the concept of domicile.” Arredondo v. Brockette, 648

F.2d 425, (Sth Cir., Unit A, 1981), aff'g 482 F.Supp.

10

212 (S.D. Tex. 1979). See also, De Leon v. Harlingen

Consol. Indep. School Dist., 552 S.W.2d 922 (Tex. Civ.

App. 1977, no writ). Federal decisions underline the

validity of the Texas proposition in the statute that illegal

aliens cannot be residents for purposes of the school

code. See, Castillo-Felix v. 1.N.S., 601 F.2d 459, 464

(9th Cir. 1979); Anwo v. I.N.S., 607 F.2d 435 (D.C.

Cir. 1979). See also, e.g., United States v. Corsi, 287

U.S. 129, 133 (1932); United States v. Riela, 337 F.2d

986 (3d Cir. 1964); Werblow v. United States, 134 F.2d

791, 792 (2d Cir. 1943); United States v. Day, 43 F.2d

917 (2d Cir. 1930); United States v. Chandler, 152

F.Supp. 169, 177 (D.Md. 1957); United States v. Anas-

tasio, 120 F.Supp. 435 (D. N.J. 1954); United States v.

Parisi, 24 F.Supp. 414, 419 (D. Md. 1938); In re Scriver,

9 F.Supp. 478, 479-80 (W.D. N.Y. 1935). Illegal entry

by aliens cannot be a basis for legal residence. To hold

otherwise would be to abolish judicially any real distinc-

tion between residency and non-residency.

Thus, whether under the law of the state, which this

Court held to be controlling in Elkins, or even under the

federal decisions construing the immigration laws, as in

Castillo-Felix and Anwo, illegal aliens cannot establish

the residence or domicile requisite to qualify for tuition-

free education within a Texas school district.

Ill. THERE ARE REASONABLE BASES FOR THE

CLASSIFICATION CREATED BY SECTION

21.031.

Amici contend that illegal immigrants are not entitled

to equal protection of the laws under the fourteenth

amendment. If the Court should rule otherwise, amici

urge that the proper test to be applied in determining the

11

validity of Section 21.031 is the rational basis test. San

Antonio Independent School District v. Rodriguez, 411

U.S. 1 (1973). The classification created by the statute

is rationally related to the valid governmental interests of

preserving the fiscal integrity of the school system, of

deterring illegal immigration into the state, and of teach-

ing children respect for law.

A. Fiscal Integrity

The State of Texas has proved that Section 21.031

bears a rational basis to valid fiscal concerns of the state.

Certainly, whether one regards it as “compelling” or not,

the maintenance of the fiscal integrity of the several

hundred school systems in Texas, and particularly in the

relatively poor border areas, is a fact in which the state

has a legitimate interest. Vlandis v. Kline, 412 U.S. 441,

452-53 (1973); Boe v. Wright, 648 F.2d 432 (Sth Cir.,

Unit A, 1981) (Reavley & Charles Clark, JJ., specially

concurring); Arredondo v. Brockette, 648 F.2d 425 (Sth

Cir., Unit A, 1981); Hernandez v. Houston Indep. School

Dist., 558 S.W.2d 121, 125 (Tex. Civ. App. 1977, writ

ref'd n.r.e.); De Leon v. Harlingen Consol. Indep. School

Dist., 552 S.W.2d 922, 925 (Tex. Civ. App. 1977, no

writ).

As is forcefully presented in the special concurring

opinion in Boe v. Wright, 648 F.2d 432 (Sth Cir., Unit

A, 1981), Texas has a valid governmental interest in pro-

viding universal public education while at the same time

preserving its limited resources available for such educa-

tion. Through enactment of Section 21.031, the state has

determined the priority in which such resources are to

be applied. It is reasonable on fiscal grounds to limit the

availability of free public education to persons who are

12

of a specified age at the beginning of the scholastic year,

as Section 21.031 does. Further, it is reasonable on fiscal

grounds to charge tuition for children who are wards of

other states and who attend Texas schools. East Texas

Guidance & Achievement Center v. Brockette, 431 F.

Supp. 231 (E.D. Tex. 1977) (three-judge court). Amici

contend that it is likewise reasonable to limit free educa-

tion to bona fide residents, who by reason of such pub-

licly provided education will be prepared to make a

greater contribution to the state’s economy and future.

Starns v. Malkerson, 326 F.Supp. 234, 241 (D. Minn.

1970), aff'd, 401 U.S. 985 (1971).

As has been demonstrated, illegal aliens are not bona

fide residents of Texas. Their continued presence in the

State depends not upon their own subjective intent to

remain, but instead upon the enforcement policies and

practices of the Immigration and Naturalization Service.

Unless their status as illegal entrants is somehow changed,

they may never become citizens of the United States nor

exercise the right to vote.

Further, the educational needs of illegal alien children

are greater than the needs of other students. The district

court in Doe v. Plyler found the cost of educating a needy

child of Mexican citizenship, whether legally or illegally

present, to be thirty to forty percent higher than the cost

of educating an “average pupil.” Doe v. Plyler, 458

F.Supp. 569, 577 (E.D. Tex. 1978). That court also

found that Mexican immigrant children generally speak

little or no English, are badly educated and over age

for their grade level. Jd. at 576. They thus require ex-

tensive bilingual education, but there is a shortage of

qualified personnel for such programs. /d. Additionally,

there are readily apparent budgetary and administrative

13

planning problems attendant with the unforeseeable

arrivals and departures of illegal alien children and their

families. See, Arredondo v. Brockette, 648 F.2d 425,

428-29 (Sth Cir., Unit A, 1981). Indeed, the district

court in Doe v. Plyler found that fiscal economics would

result if Section 21.031 were allowed to stand. Doe v.

Plyler, 458 F.Supp. 569, 576 (E.D. Tex. 1978).

The State of Texas, therefore, could legitimately con-

clude that providing free public education to illegal aliens

would significantly dilute or diminish the educational

benefits available to its own residents. Thus, in order to

maintain the quality of education, the state enacted Sec-

tion 21.031. That statute, in conjunction with the trans-

fer provisions of the Texas Education Code, Tex. Educ.

Code §§ 21.061-21.081, allows the individual school dis-

tricts to decide whether to admit illegal alien children to

the school system, and whether to charge tuition for their

attendance. If tuition is elected, a limitation is set on the

amount that may be charged. Tex. Educ. Code § 21.063.

The concern of the state with providing adequate public

education to its bona fide residents while at the same time

maintaining the fiscal integrity of the school system is

readily apparent. The state has a legitimate interest in

such matters, and the statute is rationally related to that

interest. Vlandis v. Kline, 412 U.S. 441, 452-53 (1973).

B. Deterring Illegal Immigration

None of the present amici, who are border school dis-

tricts, were targeted as defendants in the massive Alien

Children litigation. It is not because of any shortage of

potential plaintiffs along the Texas border, which area

has the highest proportion of illegal aliens in the state.

The reason for the negative selection is because each

14

amicus actually experiences the multitude of problems

arising from the influx of illegal aliens into the state, and

the problems here are of a much greater magnitude than

those in the defendant districts which lie well to the north.

By filing suits in Houston, the plaintiffs and the organiza-

tions which sponsor such litigation divorce their cases

as far as possible from ready access to adverse proof of

valid state interests in the adoption of Section 21.031.

It is one thing to take a detached view of the rather

limited facts presented in forums such as Houston or

Tyler, some three to six hundred miles from the border,

and to decree that illegal aliens must be afforded all

educational rights granted lawful residents everywhere in

Texas. A decree like the one here appealed from declares

a rule, but it leaves the responsibilities to others to solve

the practical problems arising from the ruling.

It is quite another thing to be down in the trenches

where those problems are. Then one must face and pre-

pare for the awesome effects on this side of the Rio

Grande River of a demographic disaster occurring right

next door. Trustees in the border school districts, if they

are responsible citizens, need to plan ahead, not just for

today or tomorrow, but for what will eventuate twenty

years from today—which will come upon us sooner than

we think. They must do so in view of the demands of

the public for better quality education than that which

these tax-poor districts are presently able to provide.

It is dramatically evident to us who live on the southern

borders of Texas that Mexico’s population growth is run-

ning out of control. Mexico City, by way of example, has

a present population of 15 million inhabitants—more than

the population of Texas according to the tentative 1980

15

United States census figures. Its projected population for

the year 2000 A.D. is 3] million persons . . . making it

the largest city on earth. U.S. News & World Report,

August 18, 1980, p. 54. From a population of 60 million

persons in 1975, Mexico is projected to explode into a

population of 131 million by 2000 A.D., or an increase

of 119 percent. 1, The Global 2000 Report to the Presi-

dent: Entering the Twenty-First Century (U.S. Govern-

ment Printing Office) 1980. Mexico’s present 3.4 percent

population growth rate is one of the highest in the world.

Report to the Congress of the United States by the Comp-

troller General (November 5, 1980), p. 16, U.S. General

Accounting Office, Document GGD-81-4. In addition to

mind-boggling inflation, Mexico has an unemployment

rate estimated to run as high as forty percent. Critchfield,

The Houston Post, January 25, 1981, at 68FF, Col. 1.

Persons in Brownsville, Texas, who live almost equidistant

between Mexico City and Tyler, Texas, can reasonably

expect to experience the explosive pressures of this un-

controlled population expansion before anyone else in

the United States. Indeed, the district court im Doe v.

Plyler recognized that the State of Texas is seriously con-

cerned with the increasing impact of Mexican migration

upon its public schools. Doe v. Plyler, 458 F.Supp. 569,

576 (E.D. Tex. 1978).

The northward pressures upon the border school dis-

tricts are the product of persons seeking a better life

for themselves and their children. One attribute of a

better life is the opportunity for a better education, which

must surely play a major role in an illegal immigrant’s

decision to cross the border. Despite this rather obvious

fact, the trial court in Alien Children stated that the

search for a free public education was not a significant

16

factor in illegal immigration. /n re: Alien Children Edu-

cation Litigation, 501 F.Supp. 544, 578-79 (S.D. Tex.

1980). In cases in which border school districts were

actually parties, however, proof was adduced which ren-

ders that sort of finding highly suspect. Arredondo v.

Brockette, 482 F.Supp. 212 (S.D. Tex. 1979), aff'd,

648 F.2d 425 (Sth Cir., Unit A, 1981); De Leon vy.

Harlingen Consol. Indep. School Dist., 552 $.W.2d 922

(Tex. Civ. App. 1977, no writ). The several plaintiffs

in those cases admitted that they came to the United

States to go to school so they could learn English.

In the Arredondo and De Leon cases, a research study

by Mr. Jim Hensley entitled, Mexican Immigrant-Alien

Student Study, 1975-76, “The Impact of Students from

Mexico Upon Selected School Districts in Texas Counties

Adjacent to the Mexican Border,” was received in evi-

dence. This same study was introduced as Defendants’

Exhibit 6 in the trial of Doe v. Plyler, 458 F.Supp. 569,

576 (E.D. Tex. 1978), but if it was introduced in the

trial of Alien Children, it is not mentioned in the opinion.

While the study lists economic reasons as the major

reason for Mexican immigrant/alien students coming to

the several districts, nevertheless a desire to learn English

was also shown to be an important factor contributing to

the inflow. At page 80, the study reports: “Five opinions

given for Mexicans coming to the United States related

to education. It was felt that a primary reason was to

learn English. Secondly, crowded Mexican schools was

given as a reason for coming.” These opinions were sup-

ported by statistics, at page 54 of the study, showing a

short duration of enrollment for the Mexican immigrant/

alien students. Sixty-eight percent had been enrolled for

four years or less and almost one-fourth for only one

17

year. Similarly, the District Court in Alien Children

found that only ten percent of illegal immigrants may be

expected to remain in this country permanently. 501

F.Supp. 544, 558 (S.D. Tex. 1980).

Given these facts, and the fact that under the holding

of United States v. Texas, 506 F.Supp. 405 (E.D. Tex.

1981), bilingual education for all grades is required for

all students of limited English proficiency, Texas school

districts are presently required to educate through thir-

teen grades of tuition-free, bilingual education all children

who illegally cross the border—yet only ten percent can

be expected to stay here permanently. And this is the

reality in the face of the present “atrocious” overcrowded

classroom conditions in border and metropolitan areas,

the difficulty in recruiting qualified personnel to deal with

the special education problems of such students, and the

lack of any concomitant increase in the tax base of the

school district due to their presence. Doe v. Plyler, 458

F.Supp. 569, 576 (E.D. Tex. 1978). Is there any wonder

that local school officials and taxpayers are deeply frus-

trated with a system which requires the free education

of illegal aliens at the expense of those who are legally

here? See, e.g., Hensley, Mexican Immigrant-Alien Stu-

dent Study, 1975-76, supra, at 23.

The United States Constitution should not mandate

such an unjust result, especially when the Constitution of

Mexico clearly provides that Mexican children have the

right to a free public school education in that nation.

Mexico Const. tit.I, ch.I, art. 3 (1917, amended 1946).

If by moving to the United States, Mexican children no

longer have the opportunity to a tuition-free Mexican

education, this is a consequence of a voluntary decision

on the part of their parents in crossing the border illegally.

18

Such persons, by their own actions, trade the educational

opportunity available to them in Mexico in exchange for

anticipated economic and other benefits in the United

States. The fact that they decide to do this should not

impose upon the State of Texas the duty of making up to

them the education opportunity which they traded away.

Contrary to the holding of the courts below, loss to the

children of tuition-free education was not the result of any

wrongful act of the State of Texas. Mexican citizens do

have both access and a right to education. In the case of

illegal entrants, it may be exercised simply by re-crossing

the Rio Grande River, as immigration law requires, awd

entering school.

Section 21.031 merely provides that if Mexican citizens

decide to move illegally with their children into the

United States, the State of Texas is not required to be-

come surrogate to Mexico in providing these children

with tuition-free education, to which they already have

access in their homeland. As such, it is a reflection of

the state’s concern over illegal immigration and is a rea-

sonable attempt, in harmony with national immigration

policy, to lessen the incentive for such illegal immigra-

tion into the state. Boe v. Wright, 648 F.2d 432 (Sth

Cir., Unit A, 1981) (Reaviey and Charles Clark, JJ.,

specially concurring).

C. Respect For Law

Both the court of appeals and district courts below

have emphasized, correctly, the importance of basic edu-

cation to a child’s development. See also, San Antonio

Independent School District v. Rodriguez, 411 U.S. 1,

29-30, (1973). But we do not teach our children merely

through classroom instruction. We teach them many

19

lessons through our actions, and perhaps one of the most

important such lessons concerns the rule of law in our

society and our attitude toward it.

As lawyers, we have always taken pride in the fact

that “. . . ours has been a ‘government of law rather than

of men’.” Rhyne, Law Day-U.S.A.: Emphasizing the

Supremacy of Law, 44 A.B.A.J. 313, 314 (1958). The

importance of the rule of law and its value to our society

has been emphasized by the legislative branch of our

government through the designation of Law Day, U.S.A.,

36 U.S.C. § 164, and by the executive branch through

presidential proclamations. See, e.g. Presidential Procla-

mation No. 4830, 46 Fed. Reg. 20,135 (1981); Presi-

dential Proclamation, No. 4733, 45 Fed. Reg. 16,161

(1980); Presidential Proclamation, 51 A.B.A.J. 389

(1965). A fundamental tenet of the concept of the rule

of law is the people’s respect for law as a basis of our

democratic process. Indeed, we are encouraged to culti-

vate “that respect for law that is so vital to the demo-

cratic way of life,” 36 U.S.C. § 164, and are reminded

that “respect for justice under law is vital and abiding

only when its roots are grounded in our many traditions

of religion, ethics, and philosophy with their common

teaching concerning law as the foundation of our social

order. . . .” Presidential Proclamation, 46 A.B.A.J., 409

(1960). If education is important to a child’s proper

development, then in a democratic society training in re-

spect for obedience to law is surely an essential part of

such training and a legitimate state interest.

We discard a value, long-honored in American society,

when through our actions we teach children that they

must obey some laws but are free to ignore others when it

is in their best economic interest. How can we rationalize

20

our vaunted system of “equal justice under the law” with

a constitutional rule which provides tuition-free educa-

tional benefits to those who violate our laws and which

denies like benefits to their law-abiding peers who remain

abroad and patiently await their return to enter this

country under immigration quotas? Such a policy teaches

children that in our system not only are people not

punished for breaking the law, but they are rewarded for

doing so. And at a time when disregard for law has

reached crisis proportions, how do we explain to school

children the actions of the United States, through its

Attorney General, in this case? By federal statute, har-

boring an illegal alien by a party such as a school district

is made a felony. 8 U.S.C. § 1324. Illegal entry is a mis-

demeanor in the first instance and a felony for all subse-

quent offenses. 8 U.S.C. §§ 1324, 1326. Yet, in this case,

the United States is not only failing to enforce its own

laws, but is demanding that United States Courts require

Texas school districts to admit illegal aliens into their

schools and thus harbor them in violation of federal law.

The State of Texas could legitimately conclude that

an Official state policy of providing tuition-free educa-

tional benefits to unlawful immigrants would have the

effect of teaching our children that persons need not obey

the laws of our country. The state has a legitimate govern-

mental interest in teaching its children respect for and

obedience to law, and Section 21.031 is rationally related

to this interest.

CONCLUSION

There is no sound basis for declaring that Texas Edu-

cation Code Section 21.031 violates the equal protection

clause of the fourteenth amendment. The statute defines

21

residency for purposes of public education, and there are

rational bases for its enactment. In any event, ordinary

fairness and justice dictate that if the rights of border

school districts are to be adjudged, this should be done

upon the facts present here, not those in school districts

hundreds of miles distant.

It is with reason and upon sound authority that amici

accordingly urge this Court to reverse the judgments of

the Court of Appeals below and to render judgment up-

holding the validity of Section 21.031.

Respectfully submitted,

ORRIN W. JOHNSON,

Of Counsel

OrRIN W. JOHNSON, Esa.

402 E. Van Buren Street

TRAvis HIESTER, Esa.

P. O. Drawer 3725

Harlingen, Texas 78550 McAllen, Texas 78501

(512) 423-0213 Attorney, McAllen Inde-

Of Counsel pendent School District

Attorney, Harlingen Con-

solidated Independent

School District

NEAL KING, Esq. Jack WIECH, Esq.

P. O. Box 1025 55 W. Elizabeth

Mission, Texas 78572 Brownsville, Texas 78520

Attorney, Mission Inde- Attorney, San Benito Inde-

pendent School District pendent School District

TONY MaRTINEZ, Esa.

954 E. Madison, Suite 3

Brownsville, Texas 78520

Attorney, Brownsville In-

dependent School District

Attorneys for Amici Curiae