Jurisdictional Statement — Texas v. Certain Named & Unnamed Undocumented Alien Children

80-1984 is Se

-E

NO. MAY8 19

IN THE ALEXANDER L. §

SUPREME COURT OF THE UNITED STATES§’« —

OCTOBER TERM, 1980

IN RE: ALIEN CHILDREN

EDUCATION LITIGATION

STATE OF TEXAS AND

TEXAS EDUCATION AGENCY

Appellants

VS.

UNITED STATES

Intervenor-Appellee

AND

CERTAIN NAMED AND UNNAMED

UNDOCUMENTED ALIEN CHILDREN

Appellees

On Appeal From The United States Court Of

Appeals For The Fifth Circuit

JURISDICTIONAL STATEMENT

MARK WHITE PAUL R. GAVIA

Attorney General of Texas Chief, State and County Affairs

JOHN W. FAINTER, JR. RICHARD ARNETT

First Assistant Assistant Attorney General

RICHARD E. GRAY, III P. O. Box 12548, Capitol Station

Executive Assistant Austin, Texas 78711

512/475-3131

Attorneys for Appellants

ae

QUESTIONS PRESENTED

1. Whether aliens unlawfully present in the Uni

States are “persons within a state’s jurisdiction’’

that phrase is used in the equal protection clause of

Fourteenth Amendment.

2. Whether a state is obligated to provide a tuiti

free public education to children unlawfully present

the United States.

PARTIES

The parties are the same as in the court below.

-ii-

SUBJECT INDEX

Questions Presented

Parties

Index of Authorities

Jurisdiction

Statutory Provision

Statement of the Case

Argument

-iil-

INDEX OF AUTHORITIES

Case

Ambach v. Norwick, 441 U.S. 68, 77, n. 7 (1979)

Blake v. McClung, 172 U.S. 239 (1889)

Burrafato v. United States Department of State, 523 F

554 (2d Cir. 1975), cert. den., 424 U.S. 910 (1976)

Certain Named & Unnamed Non-Citizen v. State of Te:

U.S.___ (1980), 101 S.Ct. 12 (1980)

The Chinese Exclusion Case, 130 U.S. 581, 604 (1889)

Dandridge v. Williams, 397 U.S. 471 (1970)

De Canas v. Bica, 424 U.S, 351 (1976)

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

Doe v. Plyler, 628 F.2d 448 (5th Cir. 1980)

Foley v. Connelie, 435 U.S. 291 (1978)

In Re: Alien Chidren Education Litigation, 482 F.Supp.

In Re: Alien Children Ed. Litigation, 501 F.Supp. 544

(S.D.Tex. 1980)

Leng May Mav. Barber, 357 U.S. 185 (1957)

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

Nyquist v. Mauclet, 432 U.S. 1 (1977)

San Antonio School District v. Rodriguez, 411 U.S. 1 (1s

Schneider v. United States Immigration and Nat. Sert

65 F.Supp. 377 (D.C.Wash. 1946)

United States v. Tsuda Maru, 479 F.Supp. 519 (D.Alas.

Other

Karst, The Fifth Amendment's Guarantee of Equal P

55 N.C.L.Rev. 541 (1977)

-iv-

Preliminary Report of the Domestic Council on

pp. 40, 42, 110 (1976), U.S. Govt. Printing Of!

0-241-089/1020

7 C.F.R. §273.4

42 C.F.R. §405.103(a)4(ii)

42 C.F.R. §405.205(b)

45 C.F.R. §233.50

8 U.S.C. §1324

28 U.S.C. §1254(2)

28 U.S.C. §1343(3) and (4)

28 U.S.C. §§2201 and 2202

42 U.S.C. §426a(a)i4)

42 U.S.C. §1395i-2

42 U.S.C. §1382c(a)(1)(B)

42 U.S.C. §13950

42 U.S.C. §1983

42 U.S.C. §2000d

Texas Education Code, Section 21.03 1(a)-(c)

U.S.CONST.

Tenth Amendment

Fourteenth Amendment

NO.

IN THE

SUPREME COURT OF THE UI!

OCTOBER TERM,

IN RE: ALIEN CHIL

EDUCATION LITIGA

STATE OF TEXAS .

TEXAS EDUCATION A

VS.

UNITED STATE

4

AND

CERTAIN NAMED AND lt

UNDOCUMENTED ALIEN

On Appeal From The United S

Appeals For The Fifth

JURISDICTION AS, STA’

TO THE HONORABLE JUDGES |

NOW COME the State of Texas ar

tion Agency, by and through their

Richard Arnett, Assistant Attorney

and file their jurisdictional staten

captioned cause.

JURISDICT

On July 21, 1980, the United §

the Southern District of Tex

issued its memorandum opinion

declaring unconstitutional Sect

Texas Education Code and enjo

said statute. The district court’

upon 28 U.S.C. §1343(3) and (:

U.S.C. §2000d and the opinion '

Multidistrict Litigation en

1979. 482 F.Supp. 326 (Judicia

Litigation 1979). The matter

United States Court of Appeals |

80-1807, which Honorable Court

district court on February 23,

was filed in the Court of Appea

This Court has jurisdiction

§1254(2).

STATUTORY P!

TEX.EDUC.CODE §21.03

(a) All children who are ci

States or legally admitted

over the age of five years |

21 years on the first day |

scholastic year shall be en

of the Available School Fu

(b) Every child in this sta

the United States or a le

and who is over the age ¢

over the age of 21 years

September of the year in

sought shall be permitted

free schools of the district

3.

in which his parent, gu

having lawful control of |

he applies for admission,

(c) The board of truste

school district of this sta

public free schools of the

all persons who are eithe

States or legally admitt

over five and not over |

beginning of the scholas

or his parent, guardian 0

control resides within th

The Fourteenth Amendm

Constitution provides in par

All persons born or nat

States, and subject to t

are citizens of the Uni

State wherein they resid

or enforce any law wt

privileges or immuniti

United States; nor shall

person of life, liberty, or

process of law; nor den:

its jurisdiction the equal

STATEMEN

Pursuant to the order in J)

tion Litigation, 482 F.Sup

Multidistrict Litigation 197

tion of common questions <

tions filed in the four distr

tions essentially involve the

21.031 of the Texas Educati

titlement to state education

legally admitted aliens . .

originally consolidated only

agreement of the parties

solidated trial on the mi

Following the interve

America, the district ¢

merits of Appellees’ cor

the Texas Education Co

clause of the Fourteen

States Constitution

thereof. These allegatic

the Declaratory Judgm

2202, 42 U.S.C. §198:

district court issued its

1980, holding that Sect

equal protection clause

and enjoining its applic:

state funding for the ec

of their status unde

law.’’ The opinion of thi

F.Supp. 544 (S.D.Tex. |

Appellants filed notic

peals for the Fifth Circu

stay from the district «

plication of Appellants,

Circuit Court of Appes

Mr. Justice Powell on §

(1980), 101 S.Ct. 12 (19

The Court of Appeals

affirmed the district cor

of appeal was filed by A

amended notice of app

March 13, 1981.

Another case involvin

questions has been do

80-1538, Plyler v. Doe.

case are reported at 4!

and 628 F.2d 448 (5th

that the instant case be

AR

It is difficult to imagi:

this Court's review than

equal protection claus¢e

aliens. The obvious imr

question was appropriat

Justice Powell on the :

herein. 101 S.Ct. 12 (198

comes to the Court on a

which both sides presen

support their positions.

The ramifications of t!

cause and Plyler v. Doe 1

question of educatio

children. The entitleme:

social services is a totally

regulations currently prc

documented aliens with

and Aid to Families With

§233.50. The latter regu

to the Blind, Aid to Perr

and Supplemental S

42 U.S.C. §1382c(a)(1)(B),

the entitlement of undoc

U.S.C, §1395i-2, 42 C.F

U.S.C. $13950, 42 C.F.)

some circumstances, soc

§426a(a)i4). While the v

regulations is not an issu

the applicability of the

documented aliens will c

states to implement feder

power of the federal ag

Karst, The Fifth Amend:

tection, 55 N.C.L.Rev. 54

of the federal statutory

Mathews v. Diaz, 426 U.

tions adopted by the Dep

Department of He

be justified as eff

and simply the

motivated. As suc

similar to those o

tions of whether

within a state's

quences surpassin

education.

The application

legal aliens constit

an area reserved

ment, for the righ!

principally a polit:

into the area by |

equal protection |

solution to the prc

For reasons

responsibility

between the

visitors has |

branches of |

decisions in t

relations with

variety of clas

light of chan

cumstances, ‘

character m

Legislature |

Judiciary. ..

‘Indeed, the decis

counter to federal int

migration. See, Preli

legal Aliens, pp. 40, 4

0-241-089/1020 (reco!

ment). Further, the

ficials to violate 8 U

ducing their entry.

Any rule of

hibit the fle:

government

ditions sho

greatest cau!

Mathews v. Diaz,

the federal govei

the states to pr

documented alie

strued as a mar

power in this reg

it as a matter of «

provide social si

reference to med

require that the a

Diaz, supra, at 8

aliens are within |

was utilized by t

power to limit t!

manner. The cor

well lead to the s

authorized the re

There are sever

are not ‘within ;

"The scope of feder

aliens is not before

education may be |

thereby protecting hx

that they bear the b

the exercise of federi

‘De Canas v. Bica,

357 U.S. 185 (1957);

rafato v. United Stat

1975), cert. den., 424 |

479 F.Supp. 519 (D.

migration and Nat. S

Court has r

parent tha

serious,’ t

documentet

tant issue t

The lowe!

are protect

this Court ¢

such prote

terests ma

dealing wil

for the Tex

broad rang

tent a stat

centives fo!

with federa

may be nol

in this con

sional dete

residence.’

The low

properly si

unfair res

thereby in:

to control

governme!

immigratic

resources |

fulfill its \

the lower

remove in

of the fed

directed |

whether t

hibited fri

“Various e

the United §

9.

an issue striking at the heart of the American system of

federalism.

The differentiation between permissible state and

federal interests expressed in Mathews v. Diaz, supra,

and Nyquist v. Mauclet, 432 U.S, 1 (1977), is not ap-

plicable to aliens whose presence is not authorized by

federal law. The source of the exclusive federal power to

control immigration being implied, The Chinese Exclu-

sion Case, 130 U.S. 581, 604 (1889), that power cannot

be construed to justify the assertion of interests by the

federal government where those interests are denied to

states unless the assertion of such interests by a state

conflicts with the “determination to admit [an] alien

us’ Foley v. Connelie, supra, at 295; U.S.CONST.,

Tenth Amendment. Thus, in the context of illegal or un-

documented aliens, the various states are entitled to

assert the same self-protective interests which this

Court has allowed to the federal government.

Finally, the appeal presents the question of whether

education is a fundamental right, the deprivation of

which must be supported by compelling state

interests. The district court held in the affirmative in

this regard. 501 F.Supp. at 564, But see, Ambach v.

Norwick, 441 U.S. 68, 77, n.7 (1979). This Court is thus

presented with the sequel to San Antonio School

District v. Rodriguez, 411 U.S. 1 (1973).

The injunction issued by the district court constituted

an abuse of its discretion. Undocumented or illegal

aliens are not “persons within a state's jurisdiction”

under the Fourteenth Amendment. Assuming other-

wise arguendo, the state has articulated sufficient basis

to support the statute. Dandridge v. Williams, 397 U.S.

471 (1970). Accordingly, Section 21.031 of the Texas

Education Code does not violate the United States Con-

stitution, and its application may not be enjoined.

Further elaboration is unnecessary to demonstrate

the importance and breadth of the issues presented by

this appeal. The issues go beyond the relationship of

the various states to persons whose presence within

“10.

such states is illegal; they involve the basic structure

federal constitutional power and responsibility. T!

issues are of major constitutional significance and wé

rant review by this Court.

Respectfully submitted,

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

Attorney General

RICHARD E. GRAY, lil

Executive Assistant

Attorney General

PAUL R. GAVIA

Chief, State and County Affa

RICHARD ARNETT

Assistant Attorney General

P. O. Box 12548, Capitol Sts

Austin, Texas 78711

AC 612 - 475-3131

Attorneys for Appellants