Motion to Dismiss or Affirm — Texas v. Certain Named & Unnamed Undocumented Alien Children

Supreme Court brief1981

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~~ nnn enn oN OR

80-1934

no, S0- (2

ey bw IN THE

% SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

IN RE: ALIEN CHILDREN

EDUCATION LITIGATION

STATE OF TEXAS AND

TEXAS EDUCATION AGENCY

Appellants

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

MOTION TO AFFIRM

"PETER A. SCHEY ISAIAS TORRES

National Center for Immigrants’ Attorney~-at~-Lat

Rights 2990 Richmond,

1550 West Eighth Street Houston, Texas

Los Angeles, California 90017

VIRGINIA SCHRA

JANE SWANSON East Texas Leg

East Texas Legal Services P. 0. Box 337

Box 2552 Tyler, Texas

527 Forsythe Street

Beaumont, Texas 77704 PETER WILLIAMS

821 Americana

AL CAMPOS Houston, Texas

Dallas Legal Services Foundation

810 Main Street, Suite 320 DAVES, MCCABE

Dallas, Texas 75202 P. O. Box 1115

Tyler, Texas

LARRY MEALER

1025 Street

Suite 700

Dallas, Texas 75202

MICHAEL BOUDIN

Covington and Burling

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Appellees

* Counsel of Record

ae aa

i ee

WARREN BURNE’

P.O. Box 370°

Odessa, Texa:

LUIS WILMOT

Centro para

Gulf Coast lk

2314 Cochran

Houston, Tex

TABLE OF CONTENTS

I. OPINIONS DELIVERED IN THE COURTS BELOW.

II. QUESTIONS PRESENTED

III. STATEMENT OF THE CASE... «

IV. ARGUMENT.

A. Undocumented Immigrants Are Entitled

To The Due Process And Equal Protec~-

tion Clauses Of The Fourteen Amendment.

B. Appellants Have Not Articulated A

Sufficient Justification To Support

The Challenged Statutes

V. CONCLUSION.

TABLE OF CASES AND AUTHORITIES

CASES

1. Balanos v. Kiley, 509 F.24 1023, 1025

Pr Ce oc ba st bh 6 « 6. O68

2. Brownell v. Shaung, 352 U.S. 180 (1956)

3. Burrafato v. Department of State, 523

F.2d 554 (2d Cir. 1975), cert. denied

424 U.S. 910 (1976) “rer

4. Castillo-Felix v. INS, 601 F.2d 459,

461, 467 (Sth Cir. T9579).

5. Certain Named and Unnamed Non-Citizen

Children and Their Parents v. State of

Texas, 101 §.ct. 12 dabei dl (Mr. Justice

FOWOLL) « 0 « « ee aa ae

6. Commercial Standard Fire & Marine Co. v.

Galindo, 84 S.W. 2d 636 (Ct.App. Tex. 1

7. Dandridge v. Williams, 397 U.S. 471 (197

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

9. Doe v. Plyler, 628 F.2d 448 (Sth Cir. 19

10. Dred Scott v. Sanford, 19 How 393, 403

[5 L.Ed., 691 (1857).

ll. Federation for American Emm gration Re fo

v. Klutznick, Civil Action No. 79-3269 (

C. Feb. 26, 1980)

12. Flemming v. Nestor, 363 U.S. 603 (1960)

Lae Frances v. INS, 532 F.2d 268, 272 (2d Ci

14. Green v. Stanton, 451 F.Supp. 502, 570

(eDe ERGs APIO sc wo oe eevee es

15. Heikkila v. Barber, 345 U.S. 229 (1953)

16 Holly v. Levine, 529 F.2d 1294, 1295-6

Tid Cir. I976) cert. denied 426 U.S. 954

17° In Re: Alien Children Education Litigati

501 F.Supp. 544 (S.D. Tex. 19680).

18. Lalli v. Lalli, 439 U.S. 259, 264 (1979)

19. Levy v. Louisiana, 391 U.S. 68, 70 (1968

20. Mandel v. Bradley, 432 U.S. 173, 176 (19

21. Missouri ex. rel. Gaines v. Canada, 305

U.S. 337, 390 (1939)

-ii-

CASES

22. Nizanuddowlah v. Bengal Cabaret, Inc.,

399 N.Y.S. od Cir. 854 (1977).

23. Noel v. Chapman, 508 F.2d 1023 (2d Ci1

cert. denied, 423 U.S. 824 (1975).

24. Roemer v. Maryland Public Works Board,

426 U.S. 739, 158 (1976)

25. Santa Clara Co. v. Southern Pacific R,

118 U.S. 394, 396 (1886)

26. Sarorgnan v. U.S., 338 U.S. 491 (1950)

27. Shaughnessy v. Pedreiro, 349 U.S. 48

28. U8. v._ Cortese §88 F.2d 106, 110

(Sth Ciz. >. eee ee oe

29. U.S. v. Gordon-Nikkar, 518 F.2d 97

(Sth Cir. 1975). Pr ae

30. United States v. Tsuda Maru, 479 F.Su|

S19 (D.Alas. 1979) a. 2 ec on

31. Weber v. Atena Casualty & Surety €o a

406 U.S. 164, 175 (1972)

32. Williams v. Williams, 328 F. — 138

TV.Y.B. St. Crois 1971). ° eo 6

33. Wong Wing v. U.S., 163 U.S. 228, 238

34. Yassini v. Crosland, 613 F.2d 219

(Sth Cir. 1980). wae ok eae

AUTHORITIES

1. Antieau, Modern Constitutional Law,

915.39 at 708 (1969)

2. Attorney General of Texas Opinion

No. H-586 (April 1975) ;

STATUTES AND REGULATIONS

l. 8 U.S.C. §§ 1105a, 1158, 1182(c), 125

1252, 1253(h) and 1254 ese

2. 8 C.F.R. §§ 3.6, 208, 242.5(3), 242.8

242.17(a) and (c), 242.20, 243.1 and

3. Section 21.031, Texas Education Code

Tit. 2 (Vernon 1980) . « ,

-iii-

NO.

IN THE

SUPREME COURT OF THE UNI’

OCTOBER TERM, 19!

IN RE: ALIEN CHILI

EDUCATION LITIGAT)

STATE OF TEXAS A)

TEXAS EDUCATION AGI

Vv.

UNITED STATES

Inter\

AND

CERTAIN NAMED AND U?

UNDOCUMENTED ALIEN C!

On Appeal From The United St

Appeals For the Fifth

MOTION TO AFFIR)

Appellees, pursuant to Rule

Supreme Court of the United States, |

of the order of the United States Di:

Southern District of Texas entered J!

Children Education Litigation, 501 F

1980), and summarily affirmed by the

Appeals for the Fifth Circuit, No. 8

1981. The District Court invalidate

Education Code, which precludes the

rollment of immigrant children not "

the United States, as being violativ

Amendment's equal protection and due

This motion is made on the grounds t

opinion and order conform to prior 4d

and the questions presented in Ap

Statement ("Jur. St.") are so uns

rant plenary consideration by thi

OPINIONS DELIVERED I

The opinion of the Distric

F.Supp. 544 (S.D. Tex. 1980). Th

Fifth Circuit summarily affirmed

ary 23, 1981. Case No. 80-1807.

from the District Court which was

Appellants, a stay was granted by

Appeal, which stay was vacated by

tember 4, 1980. — U.S.__ (1980

Tt]

QUESTIONS

In addition to the Questic

the Jurisdictional Statement, the

(a) Whether Section 21.031 Te»

cludes undocumented child:

of Texas from attending t!

the due process clause of

(b) Whether Appellants’ estab.

sufficient to withstand e:

equal protection challenge

Education Code.

STATEMENT |

At issue in this suit is

the use of Texas state funds to

™ Appellants' arguments i

have consistently relied upon an

120,000 class members. [In fact,

enrolled in the public schools a

on the streets were the District

this Court has already noted pro

tical case of Doe v. Plyler, No.

35 students in one school distri

were affirmance granted in this

-2

citizens of the United States

Texas Education Code Ann.Tit.

As applied that statute also p

to exclude undocumented childr

™ Appellees herein w

court. They are school-age |

ents. Some parents are U.S.

lawful immigration status, 4

sion of immigration document

State of Texas. The challen

cludes from the public schoo

admitted” into the United St

to those children not “legal

aliens", Jur. Stm. 5, “undoc

“whose presence ... is illeg

drafters of Section 21.031 n

plementation have ever deter

categories of non-citizens a

public schools. Few, if any

in the seventeen consolidate

to be deportable from the Un

and policies. The District

trial stipulation agreed tha

are here to stay.” 501 F.Su

The Immigration & Na

comprehensive body of legis]

federal control over the adr

within, the United States. 1

pellants to define appellees

mentioned in the Immigration

of a persons presence in the

against the deportation stat

§ 1251. Until a person forn

process hearing and concede!

to be deportable by an Immi;

right to continue residing }

§§ 1105a and 1252; 8 C.F.R.

v. Barber, 345 U.S. 229 (19!

0.5. 4 (1955). None of the

parents have been determine

States.

While Section 21.03.

non-U.S. citizen children ni

United States, decisions of

tions and INS Operations In

provide numerous Opportunit

equities to remain in the UV

of the federal government 4

admitted." See, e.g. 8 U.S

1253(h), 1254, 1259; 8 C.F.

17(a) and (c), 243.4; Savor

At trial, Mr. Edward Randal

cial responsible for enforce

tioned about the many categ

INS regulations and whether

be deemed excludable from t:

21.031. Finally recognizin

involved more than calling

ceded that he could only pr

Reporter's Transcript, Volu

e.g. "Tr. Vol. VIII, 332°).

(S01 F.Supp. at 549.) Whi

that Section 21.031 exclud

public schools, they never

supra, and no legislative

the parties or the Distric

Supp. at 555, n. 19. As re

in Federati for American

Civil Action No. 79-3269 (

The very concept |

only to a vague n¢

be deported if hi

known to the auth

mination of that

plicated process

Nationality Act 1

of provisos and e

Id. at 16, fn. 12.

The uncontradicte

that only about ten perce

this country remain here

at 558. According to evi

and appellees only about

in the United States are

And, of this small group

sometimes accompanied by

come across the border wrt

immigration documents."

lants based all of their

Court on the harm that wo

by the enrollment of an e

dren", Id, at 575-578, a

™ De fendants/appe

(estimates 2.7%); Def. Ex

estimate of 1.6%); plaint

#436 (estimates 3.4%).

xas

urt

surd", discovery on pen

and public statements 0

number has barely reach

The District Co

ly assume: “children w

great harm." 501 F.Sup

trial unanimously agree

from an education syste

streets", Ibid., suffe

According to the expert

“behavioral difficultie

sion", “breaks with rea

." Id. at 561-562.

and the District Court

largely “here to stay",

eventually “become pern

vices." Id. at 561. 1

innocent children with

social and educational

the children's parents,

public education” thro

583, and the State en}<

Id. at 580. In fact, '

order to increase its :

after receiving these |

ments of the counted c!

funding method leaves

tbid.

Appellants ass

justify the challenged

sources from the failu

fill its constitutiona

regards control of our

move inducements for i

Statement at 8. Both of these alleged justifications were care-

fully examined and rejected by the District Court.

With regards the fiscal (resource) argument, even

after exaggerating the estimated number of undocumented chil-

dren twelve-fold, appellants still conceded in final argument

at trial: "[T]he State never said it didn't have the money

in its budget" to educate the plaintiff class -- "it can

come up with the money." Id. at 579. In fact, the children

who make up the plaintiff class could be educated using less

than .08% of the state's existing annual surplus. Further,

the independent school districts in Texas receive more Title

I federal education money “than any other state in the na-

tion." Id. at 586. They also receive the lion's share of

federal bilingual money. Ibid. And, they do this by count-

ing undocumented children "who are [then] excluded from [the]

school(s]."

Every expert who testified, every government and

private study examined, and the District Court unanimously

agree that contrary to appellants’ second asserted justifi-

cation for Section 21.031, the availability of a public ed-

ucation does not act as an inducement to illegal migration

into the United States. Tr. Vol. I, 104-09 (testimony of

Dr. G. Cardenas); Vol. V, 655 (testimony of Immigration

Judge J. Smith); Vol. III, 424, 427-28 (testimony of Dr. J.

Bustamante); Vol. XIII, 136 (testimony of Dr. E. Flores).

Numerous studies submitted into evidence by both appellants

and appellees corroborate these findings. 4/

See, e.g., D.Ex. 14-18 (North & Houston, The Char-

acteristics and Role of Illegal Aliens in the U.S. Labor Mar-

ket, at 145-49 (only 2.7% of undocumented people interviewed

had children in U.S. Schools); D.Ex. 14-19, U.S. Comptroller

General Report to the Senate Committee on Budget, at 174

(only l. of undocumented immigrants interviewed had non-

U.S. citizen children attending U.S. public schools); P.Ex.

436, Bustamante, The Immigrant Worker: A Social Problem or

a Human Resource, at q Tonly 3.4% of Mexican undocumented

immigrants have ever had children enrolled in U.S. public

schools),

‘& ¢

While the District Court focuses its opinion on a

Fourteenth Amendment equal protection analysis, it also ap-

peared to believe that the same result would be reached un-

der a due process analysis. 501 F.Supp. at 572-73. Appel-

lants have conceded throughout this litigation that undocu-

mented children are entitled to the due process protection

of the Fourteenth Amendment. Applying a heightened judicial

standard because the challenged statute targets “innocent

children", Ibid., and because it “absolutely” deprives "“chil-

dren" of an education, Id. at 572, the District Court found

that the statute should be “scrutinized with care .. ."

Ibid. However, the District Court concluded that "the State

has not shown that excluding children from school is in any

way necessary to the improvement of the education in the

State." Id. at 582 (emphasis added). 3/ The District

Court's opinion is thus consistent with the Court of Appeals

‘decision in Doe v. Plyler, 628 F.2d 448 (Sth Cir. 1980), that

the challenged statute is not even supported by a rational

basis.

Since the issuance of the statewide injunction in

this case approximately 10,000 class members have enrolled

in the Texas public schools. Reversal of the lower court's

order will put these children back out on the streets. Texas

education officials in the past month have testified in the

Texas Senate Education Subcommittee in support of a bill to

repeal Section 21.031; contrary to appellants’ projections,

neither fiscal nor space problems of any significance have occu

Affirmance of the lower court's order is appropriate without

necessarily affirming the reasoning by which it was reached.

Mandel v. Bradley, 432 U.S. 173, 176 (1977); Certain Named

~ his Court gives great weight to the trier of facts.

Roemer v. Maryland Public Works Board, 426 U.S. 739, 758 (1976)

it is not our place to appraise the evidence of lower courts

unless it plainly fails to support the finding of the trier of

Ce08. 2. ¢' ee

(> Cr

and Unnamed Children and Their Parents, Applicants v. State

of Texas, et al., U.S. , 101 S.Ct. 12, 15 (1980)

(Mr. Justice Powell) ("it may be possible to accept the

District Court's decision without fully embracing the full

sweep of its analysis").

While this Court has already accepted jurisdiction

over the appeal taken from Doe v. Plyler, supra, affirmance

of the herein case would in all likelihood moot the Plyler

case (all of whose plaintiffs are also covered by the injunc-

tion issued in this case.)

IV.

ARGUMENT

A. Undocumented Immigrants Are Entitled To The

Due Process And Equal Protection Clauses Of

The Fourteenth Amendment

From the beginning of this litigation Appellants have

agreed that “the Due Process Clause of the Fourteenth Amend-

ment applies to undocumented aliens." Joint Pre-trial Order,

Uncontested Issues of Law at 15. The District Court relied

upon a number of due process cases in reaching its conclusion

that Section 21.031 is unconstitutional. 501 F.Supp. at 572-

73. The challenged statute “penalizes children because of

acts committed by their parents.” Ibid. Imposing the dis-

abilities of illiteracy, psychological damage, and social

isolation on the plaintiff children because of the adminis-

trative law violations of the parents "is illogical and unjust.

Weber v. Atena Casualty and Surety Company, 406 U.S. 164, 175

(1972). Undocumented children, like other young children,

seldom have the power to choose their place of residence. For

example, the District Court heard testimony from a nine year

old girl who entered the United States when she was five mont

old and who, for the past two years, was excluded from the

Texas public schools after moving to the State of Texas from

Missouri where she had attended the public schools. Ibid

This young girl's father is a United States citizen and her

mother a lawful permanent resident of the United States.

The young girl is documentable, but the family cannot pro~

ceed with regularizing her status until they receive her

Mexican birth certificate which they have been unable to d

to date. Ibid.

Cases involving classifications which punish chil

dren for acts committed by their parents are not subject

to strict judicial scrutiny. They are nevertheless invali

if they are not substantially related to a permissible

state interest. Lalli v. Lalli, 439 U.S. 259, 264 (1979)

The lower court in this case found that “the evidence re~

ceived in this proceeding” supported a due process analys!

leading to the conclusion that the plaintiff children “de:

serve no additional burdens or penalties.” Ibid. Given

Appellants consistent concession that the appellee class

entitled to the protection of the Due Process Clause of t'

Fourteenth Amendment, and appellants’ failure to address

issue in their Jurisdictional Statement, che District Cou)

Order should be summarily affirmed~on due process grounds

As stated by Justice Powell in his September 4, 1980 opin

vacating the stay issued by the Court of Appeal, “it may

possible to accept the District Court decision without fu

embracing the full sweep of its analysis.” 101 S.Ct. at

accord, Mandel v. Bradley, supra, 432 U.S. at 176.

The thrust of Appellants’ Jurisdictional Stateme:

is that undocumented persons residing in the United Stat:

are not entitled to the benefits of the equal protection

clause of the Fourteenth Amendment. Jur. St. at 5-8. W

concluding that “states may treat citizens and resident

aliens differently than undocumented aliens,” 501 F.Supp

565, the District Court nevertheless determined that unc

mented persons are not totally excluded from the coverag

the equal protection clause of the Fourteenth Amendment.

at 567. Appellants suggest that “this Court [has] neve:

ee er | ot ——— ——_— -

dressed the question.” Jur. St. at 7-8. However, bot

Court and various lower courts have held that the equa

tection clause applies to undocumented persons residin

the United States.

This Court has long given the equal protection

tee a broad scope, holding it applicable "to all perso

in the territorial jurisdiction” of the United States.

Wing v. United States, 163 U.S. 228, 238 (1896) (undoc

deportable alien entitled to Fifth and Sixth Amendment

eton) It is with pain chat appellees are forced tc

that the appellee-children and appellee-parents, none

have ever been determined to be deportable from the Ur

States, are “persons” within the meaning of the Fourte

OILS The only reported cases which appellees

found concerning the non-application of the term “pers

involved “unborn children” who are found not to be pr¢

by the equal protection clause. Green v. Stanton, 45!

567, 570 (N.D. Ind. 1978). The appellee-children her«

"born", they are residing and growing up in the State

Texas, and they may well be the citizens of the futur:

The appellees are also subject to the State's

nal, civil and tax jurisdiction. See, Pre-trial Orde

13, No. 10 (alien tax liability conceded). And, "onc

~ See, also, Levy v. Louisiana, 391 U.S. 68,

(illegitimates); Santa Clara County v. Southern Pacif

118 U.S. 394, 396 (1886) (corporations).

~The time is hopefully long past when courts

seriously entertain questions such as whether "a negr

ancestors were imported into this country, and sold a

. . « become(s) entitled... (to sue] in a court of

United States.” Dred Scott v. Sanford, 19 How 393, 4

’,,Ed. 691 (1857). The courts can no longer defferent

withdraw from the arena of "rights", claiming that it

their function "to decide upon the justice or injusti

a classification. Id. at 405. As Professor Chester

states, the "Dred Scott decision was buried by the F<¢

Amendment." Antieau, Modern Constitutional Law, § 15

708 (1969).

-10-

e’) ‘

have become subject to liability under United Stat

they also have the right to benefit from its prote

United States v. Cortes, 588 F.2d 106, 110 (Sth Ci

Manifestly, “the obligation of the State to give ¢

tion of equal laws can be performed only where its

erate, that is, within its own jurisdiction.” Mis

rel. Gaines v. Canada, 305 U.S. 337, 350 (1939).

Not long ago, Judge Friendly declared:

We can readily agree that the due process

equal protection clauses of the Fourteenth

Amendment applied to aliens within the Uni

States .. . and even to aliens whose pres

here is illegal.

Balanos v. Kiley, 509 F.2d 1023, 1025 (2d Cir. 197

Castillo-Felix v. INS, 601 F.2d 459, 461, 467 (9th

the Court of Appela held that the Fifth Amendment

tection applied to aliens found deportable but see

lief from deportation under federal statutes. In

Chapman, 508 F.2d 1023 (2d Cir.) cert. denied, 423

(1975), the court found that equal protection appl

persons required to appear in deportation hearings

to determine the legality of their presence in the

States. In Frances v. Immigration & Naturalizatio

§32 F.2d 268, 272 (2d Cir. 1976), the Court of App

found that the equal protection clause of the Fift

applied to deportable aliens. Again in Holly v. L

F.2d 1294, 1295-96 (2d Cir. 1976), cert. denied, 4

954 (1978), the court found that the equal protect

applies to aliens who entered the United States un

and who are not under final orders of deportation.

~ See, also, Doe v. Plyler, supra; Martine

Valley Bus Line, 17 F.Supp. 576, 597278 (N.5. Til.

documented immigrant entitled in civil action); Ct

of Illinois, 438 F.Supp. 917 (D.C. Ill. 1977) (equ

tion clause extends to aliens residing in the Unit

Nizanuddowlah v. Bengal Cabaret, Inc., 399 N.Y.S.

TIS77) (immigrant on temporary visa entitled to e¢

tion); Commercial Standard Fire and Marine Company

484 S.W. 2d 636, 637 (Ct. App. Tex. 1972) (undocun

grants have equal protection right to recover on 4

compensation claim).

ee a eee oe mee —_————

As the State of Texas, through its Attor

has previously conceded:

(T]he existing case log indicates that t

rights of illegal aliens are protected b

U.S.C.A. § 1981 and Fourteenth Amendment

the United States Constitution. [Citing

Balanos v. Re’ supra; Williams v. Wil

. Supp. (V.T.B. St. Croix 1971)

(undocumented children entitled to atten

public schools); Martinez v. Fox Valley

Lines, supra; and Commercial Standard Fi

and Marine Company v. Galindo, supra.|]

Attorney General of Texas, Opinion No. H-586, a

1975). Appellees agree with the Texas Attorney

opinion that even “illegal aliens are protecte¢

the Fourteenth Amendment to the United States ¢

We also agree that this conclusion is supportec

case law..." Ibid.

Appellees totally fail to comprehend ap;

arguments which suggest that both the federal :

ious state governments will become impotent to

sifications based on alienage should this Court

undocumented immigrants fall under the coverag

equal protection clause. Jur. St. 5-8. Appel

tion that application of the equal protection |

documented immigrants will result in their eli

a broad array of social services is without me

lower court cases have applied the equal prote

to undocumented or deportable immigrants and,

ing the approrpriate standard of review, have

documented immigrant ineligible for the benefi

~ See, @.g., Flemming v. Nestor, 363 U.

U.S. V. Gordon-Nikkar, Sis F. (Sth Cir. ]

Civiletti, 617 F.2d 745 (D.C. Cir. 1979); Cast

P F.2d 459 (9th Cir. 1979); Yassini v.

F.2d 219 (9th Cir. 1980).

@-12@

Contrary to appellants’ concerns, the Distri

ly reasoned that “states may treat citizens

aliens differently than undocumented aliens

at 565. In this case and Doe v. Plyler, th«

simply found that the State of Texas had fa:

even a rational basis for excluding childre!

been determined to be deportable aliens, fr

schools.

The cases cited by appellants lend

to their position. Appellants totally misc

tio decidendi of Burrafato v. Department of

554 (2a Cir. 1975), cert. denied 424 U.S. 9

rafato concerns subject matter jurisdiction

ment “procedural due process” questions inv

review of visa issuance decisions made abro

officers of the U.S. State Department. The

in Burrafato had nothing to do with the imn

of the plaintiff in that case. See, Browne

352 U.S. 180, 184 (1956). De Canas v. Bica

(1976), also celied upon by appellants likey

ing on the equal protection clause but rat!

whether a state law was preempted by the Ir

Nationality Act. Id. at 937. United Stat«

479 F.Supp. 519 (D.Alas. 1979), involved tl!

of Japanese nationals who were not reside!

territory of the United States and thus thi

ly within the authority distinguishing the

grants within and without the territory of

Further, the case involved a question of f

over international affairs and the interpr

Fifth Amendment in that particular context

Given that appellants’ Jurisdictic

@13<

clusively relied upon the contention that

dren cannot seek judicial review under the

laws of the Fourteenth Amendment, we respe

appellants present no substantial question

by the Court, and that the order of the Di

be summarily affirmed.

B. Appellants Have Not Articulate

Justification To Support The ¢

Statute

Appellants argue, without analysi:

has articulated [a] sufficient basis to Si

Jur. St. at 9, citing Dandridge v.- Willia:

(1970). This conclusory assertion, offer

tual support, should not justify plenary.

Assuming that equal protection and due pr

applicable, only the District Court thus

searching examination of the alleged just

statute; and the trial court provided ext

grounded reasons for concluding that Texa

its total exclusion of the appe llee-child

the public schools.

The State of Texas offers only tv

for its policy of excluding innocent chi:

lic schools: “to protect its resources,

incentives for illegal immigration. .- -

With regards the first assertion, the lo

instant action and in Doe v. Plyler, hav

21.031 bears neither a substantial nor a

ship to the preservation of the State's

approximately one-hundred-twenty thousan

age children resided in the State of Tex

-14-

)

( ™

the public schools but for Section 2

575-79. The trial court, after hear

nesses found this estimate to be "ab

able” and "grossly over-estimated .

ing the past school year, only ten t

umented children have enrolled in th

as a result of the injunction issued

noted throughout the District Court’

Texas conducted absolutely no studie

umented children on its public schoo

in 1975 to prohibit their enrollment

numerous affidavits attached to appe

Vacate Stay submitted to this Court

of the poorer school districts in Te

state funds based on the number of s

financially better off enrolling the

noted by the District Court in Doe v

requires school districts "to exclud

from [their] ADA [average daily atte

amount of state funds [they] receive

And, the State often stated during t

that it “has the duty to protect the

the local independent school distric

The State's “resource” argun