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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to Dismiss or Affirm
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 937

## Text

~~ 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
V.
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
ae

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

CY

and the questions presented in Ap
Statement ("Jur. St.") are so uns
rant plenary consideration by thi

I.

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.

Il
STATEMENT |
At issue in this suit is

the use of Texas state funds to

1/

™ 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

2/

™ 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°).

er

se

en

\e
id

(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

3/

™ De fendants/appe
(estimates 2.7%); Def. Ex
estimate of 1.6%); plaint
#436 (estimates 3.4%).

xas

urt

Ke

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/

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

a

(> 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

6/

~ See, also, Levy v. Louisiana, 391 U.S. 68,
(illegitimates); Santa Clara County v. Southern Pacif
118 U.S. 394, 396 (1886) (corporations).

V/
~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.

8/

~ 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

9/

~ 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

resource arguments were entirely based ©
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
more questionable given that Texas "
with a surplus of approximately $2.1]
fiscal policies which prohibit defic
It should also be understood that tt
undocumented children in order to ol
funds. This leads to a windfall foi
admitted into the Texas public scha

recognized that the parents of excli

-15-

significantly to the funding of ed
the payment of taxes. On July 23,
troller stated:

illegal aliens have been p
vehicle tax and gasoline t
sidents. Some may treat t
citizens but they are firs
Frankly, its time we quit
some kid was born and star
kind of education all our

Appellees’ Application to Vacate &
phasis added). In fact, appellant
trial Order that “undocumented ali
the State of Texas are not exempt
requirements." ("Uncontested [ssi
counsel for the State noted in clc
There is no place in this
the State has said the St:
have enough money. Not or
come up with the money. |
legislature to fund certa)
go down and get them to fi
never said it didn't have
501 F.Supp. at 579.
Appellants should not now
Section 21.031 is justified by a
tives for illegal immigration
fact, "(njeither the court nor th
a shread of legislative history a
ment” enacting Section 21.031. 5
Quite contrary to their current c
pulated as an uncontested issue ©
Order that “the availability of e
the major pull-factor in attracti
into the United States.” Joint P
9. As noted above at page 8, bot

tary evidence submitted by both f£

established that the availability

-16-

for minor children plays no me
migration of undocumented immi
Appellants’ conclusory assertio
in its Jurisdictional Statemen

review by this Court.

CONCL

For the reasons stated
submit that appellants present
the decision of this Court, an
court should be affirmed. Thi
proximately ten thousand chil<¢
public schools of Texas and w¢

pending case of Doe v. Plyler.

PETER A. SCHEY

National Center for Immigrant!
Rights

1550 West Eighth Street

Los Angeles, California 90017

(213) 487-2531

JANE SWANSON

East Texas Legal Services
Box 2552

527 Forsythe Street
Beaumont, Texas 77704

AL CAMPOS

Dallas Legal Services
Foundation

810 Main Street, Suite 320

Dallas, Texas 75202

LARRY MEALER

1025 Street

Suite 700

Dallas, Texas 75202

MICHAEL BOUDIN

Covington and Burling

888 Sixteenth Street, N.W.
Washington, D.C. 20006

DATED: May 29, 1981

CERTIFICA

I, PETER A. SCHEY, ¢
by certify that a true and ¢
Motion to Affirm has been s¢
ing same in the United Stat«

to:

LUIS WILMOT

Centro Para Inmigrantes
de Houston, Inc.

2314 Cochran Street,
2nd Floor

Houston, Texas 77009

DAVES, MCCABE & CREWS
Pp. O. Box 1115
Tyler, Texas 75710

AL CAMPOS

Dallas Legal Services
Foundation

810 Main Street, Suite 320

Dallas, Texas 75202

WARREN BURNETT
P. 0. Box 3707
Odessa, Texas 79760

KELLY FELS

Bracewell & Patterson

2900 South Tower
Pennzoil Place

Houston, Texas 77002

PETER WILLIAMSON
821 Americana Building
Houston, Texas 77002

JOSEPH J. REY
Pp. 0. Box 10187
El Paso, Texas 79901

JANE SWANSON

East Texas Legal Services
Box 2552

$27 Forsythe Street
Beaumont, Texas 77704

RICHARD A. PEEBLES

Reid, Strickland, Gillette
Elkins

Pp. O. Box 809

Baytown, Texas 77520

BOWEN L. FLORSHEIM

4050 First National
Bank Building

Dallas, Tecas 75202

-— ee ee —— or

sldg.

40

ral

es

es

»5

030

RICHARD ARNETT

Assistant Attorney Gener
P. O. Box 12548

Capitol Station

Austin, Texas 78711

On this 29th da

ei ORIGINAL

80-1934

NO.

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
V.
UNITED STATES
Intervenor-Appellee
ANQ

CERTAIN NAMED AND UNNAMED
UNDOCUMENTED ALIEN CHILDREN

Appellees

On Appeal From The United States Court Of
Appeals For The Fifth Circuit

MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS

*PETER A. SCHEY ISAIAS TORRES

National Center for Immigrants' Attorney-at-Law
Rights 2990 Richmond, Suite 205

1550 West Eighth Street Houston, Texas 77027
Los Angeles, California 90017

VIRGINIA SCHRAMM
JANE SWANSON East Texas Legal Services
East Texas Legal Services P. ©. Box 337
Box 2552 Tyler, Texas 75701
527 Forsythe Street
Beaumont, Texas 77704 PETER WILLIAMSON

821 Americana Building
AL CAMPOS Houston, Texas 77002
Dallas Legal Services Foundation
810 Main Street, Suite 320 DAVES, MCCABE & DREWS
Dallas, Texas 75202 P. O. Box 1115

Tyler, Texas 75710

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

///
i es
///

WARREN BURNETT
P.O. Box 3707
Odessa, Texas 75202

LUIS WILMOT

Centro para Inmigrantes
Gulf Coast Legal Foundatior
2314 Cochran Street
Houston, Texas 77009

NO.

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
Vv.
UNITED STATES
Intervenor-~Appe llee

AND

CERTAIN NAMED AND UNNAMED
UNDOCUMENTED ALIEN CHILDREN

Appellees

On Appeal From The United States Court of
Appeals For The Fifth Circuit

MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS

The United States District Court for the Southern
District of Texas entered its order on July 21, 1980, cer-
tifying this suit as a Texas-wide class action, declaring
unconstitutional Section 21.031, Texas Education Code, and
granting certain class relief. The opinion and order of
the District Court are officially reported at 501 F.Supp.
544 (S.D. Tex. 1980).

The matter was appealed to the United States Court
of Appeal for the Fifth Circuit, No. 80-1807, which Honor-
able Court summarily affirmed the district court on Februa)
23, 1981. Defendants/appellants filed a notice of appeal
in the Court of Appeals on March 2, 1981. Appellants file

their Jurisdictional Statement on May 8, 1981.

Appellees Sandra Cardenas and Maria Cardenas, anc

those class members granted relief by the District Court,

ask leave to file the attached Motion to Affirm and to p1

ceed in this Court in forma pauperis, without prepayment

of fees and costs or security therefor, pursuant to Suprée

Court Rule 46. The affidavits of appellees Sandra Carder

and Maria Cardenas in support of this motion are attache

hereto.

PETER A. SCHEY

National Center for Immi-
grants’ Rights

1550 West Eighth Street

Los Angeles, California 90017

(213) 487-2531

JANE SWANSON

East Texas Legal Services
Box 2552

527 Forsythe Street
Beaumont, Texas 77704

AL CAMPOS

Dallas Legal Services
Foundation

810 Main Street, Suite 320

Dallas, Texas 75202

(214) 742-1631

LARRY MEALER

1025 Street

Suite 700

Dallas, Texas 75202
(214) 745-1212

MICHAEL BOUDIN

Covington and Burling

888 Sixteenth Street, N.™.
Washington, D.C. 20006

DATED: MAY 29, 1981

Respectfully submitted,

ISAIAS TORRES

A sSrney-at-Law

2990 Richmond, Suite 2)
Houston, Texas 77027
(713) 524-4801

VIRGINIA SCHRAMM

East Texas Legal Service!
P.O. Box 337

Tyler, Texas 75701

PETER WILLIAMSON
821 Americana Building
Houston, Texas 77002

DAVES, MCCABE & CREWS
P. O. Box 1115
Tyler, Texas 75710

WARREN BURNETT
P. O. Box 3707
Odessa Texas 75202

LUIS WILMOT

Centro para Inmigrantes
Gulf Coast Legal Foundat:
2314 Cochran Street
Houston, Texas 77009

» dot AS

PETER A. SCHEY
Counsel for Appelleeé

CERTIFICATE OF SERVICE

I, PETER A. SCHEY, counsel for appellees, do !
by certify that a true and correct copy of the foregoi
Motion to Proceed In Forma Pauperis has been served u;
all parties by placing same in the United States Mail,

class, addressed to:

LUIS WILMOT JACK TIDWELL
Centro Para Inmigrantes Suite 612
de Houston, Inc. State National Build
2314 Cochran Street, Box 1211
2nd Floor Odessa, Texas 7976(
Houston, Texas 77009
GRANT COOK
DAVES, MCCABE & CREWS Reynolds, Allen & Cc
P. O. Box 1115 l6th Floor, 1100 Mil
Tyler, Texas 75710 Houston, Texas 770(
AL CAMPOS STANLEY D. BASKIN
Dallas Legal Services Baskin, Fakes & Star
Foundation P. O. Box 72
810 Main Street, Suite 320 Pasadena, Texas 775
Dallas, Texas 75202
BANKER PHARES
WARREN BURNETT P. O. Box 1584
P. O. Box 3707 Port Arthur, Texas
Odessa, Texas 79760
DREW S. DAYS, III
KELLY FELS Assistant Attorney ¢
Bracewell & Patterson Civil Rights Divisic
2900 South Tower Department of Justic
Pennzoil Place Washington, D.C. 2(

Houston, Texas 77002
VIRGINIA SCHRAM

PETER WILLIAMSON East Texas Legal Se:
821 Americana Building P. O. Box 337
Houston, Texas 77002 Tyler, Texas 75701
JOSEPH J. REY GEORGE T. CLEVENGER
P. O. Box 10187 Attorney at Law
El Paso, Texas 79901 777 South Post Oak !
Suite 990
JANE SWANSON Houston, Texas 7705
East Texas Legal Services
Box 2552 VIRGINIA MALCOLM
527 Forsythe Street East Texas Legal Se)
Beaumont, Texas 77704 208 North Grain Str«
P. O. Box 2629
RICHARD A. PEEBLES Longview, Texas /75(
Reid, Strickland, Gillette &
Elkins ISAIAS TORRES
P. O. Box 809 2990 Richmond, Suiti
Baytown, Texas 77520 Houston, Texas 770:
BOWEN L. FLORSHEIM J. PETER FISKE
4050 First National 835 Mission Street
Bank Building South Pasadena, CA

Dallas, Texas 75202

RICHARD ARNETT

Assistant Attorney General
P. O. Box 12548

Capitol Station

Austin, Texas 78711

MICHAEL BOUDIN
Covington & Burli
888 Sixteenth Str
Washington, D.C.

On this 29th day of May, 1981.

“bk ASL

PETER A. SCHEY
Attorney for Appell

&

. NO,

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980

IN RE: ALIEN CHILDREN
EDUCATION LITIGATION

STATE OF TEXAS AND
TEXAS EDUCATION AGENCY
Appella
vs.

UNITED STATES
Interve

AND

CERTAIN NAMED AND UNNAMED
UNDOCUMENTED ALIEN CHILDREN
Appelle

AFFIDAVIT

I SANDRA. CARDENAS, being first duly sworn according
depose and say, in support of the Motion For Leave
In Forma Pauperis, the following:
1. I am one of the named-plaintiffs in
mentioned cause of action.

2. Because of my poverty I am unable ti
of this litigation.

3. I am unable to give security for th

4. Because of my poverty I have not pa
in this litigation and 1 have been
by legal aid lawyers.

5. I respectfully request that I and m
be allowed to proceed in forma paup

Affidavit of Sandra Cardernas
Page Two

ATS nO

STATE OF TEXAS I

COUNTY OF HARRIS I

Before me, a notary public, on this
appeared SANDRA CARDENAS, known to me to be the p
is subscribed to the foregoing instrument and, b
duly sworn, declared that the statements therein
true and correct.

Given under my hand and seal of off

day of May 1981.
PYaks, Aw,
otary Public in

Harris County T E

My commission exvires: MARIE A. VILLARRE/
Netary Public in Harris Coun

My Commission Expires July

alu LY, LIES
—fity (

NO,

IN THE
SUPREME COURT OF THE UNITED
OCTOBER TERM, 1980

IN RE: ALIEN CHILDR
EDUCATION LITIGATIO

STATE OF TEXAS AND
TEXAS EDUCATION AGENC

Vs.
UNITED STATES
AND

CERTAIN NAMED AND UNNAME
UNDOCUMENTED ALIEN CHILDR

AFFIDAVIT

I, MARIA CARDENAS, being first duly sworn é
depose and say, in support of the Motion Fc
In Forma Pauperis, the following:
1. I am one of the named-plain(
mentioned cause of action.

2. Because of my poverty I am'
of this litigation.

3. I am unable to give securit:

4. Because of my poverty I hav
in this litigation and I ha
by legal aid lawyers.

5. I respectfully request that
be allowed to proceed in fo

/

. Affidavit of Maria Cardernas
Page Two

ar

STATE OF TEXAS I
COUNTY OF HARRIS J

Before me, a notary public
appeared MARIA CARDENAS, known to me to
is subscribed to the foregoing instrume
duly sworn, declared that the statement
true and correct.

Given under my hand and se

Harris C

N
Notary Pu
My Com

My commission expires:

Yasly Lh LIST

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2122%3A3. Public record. Not legal advice.