Record and brief — Martinez v. Bynum

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

ORALIA MARTINEZ, as next friend

of ROBERTO MORALES,

Petitioners

vs.

DR. M. L. BROCKETTE, as TEXAS

COMMISSIONER OF EDUCATION;

The TEXAS EDUCATION AGENCY;

McALLEN INDEPENDENT SCHOOL DISTRICT;

and RODNEY CATHEY, as Superintendent of

McAllen Independent School District

Respondents

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI

JAMES A. HERRMANN

TEXAS RURAL LEGAL AID, INC.

305 E. Jackson, Suite 206

Harlingen, Texas 78550

(512) 423-3111

Counsel Of Record For

Petitioner

EDWARD J. TUDDENHAM

Of Counsel

November 2, 1981

QUESTIONS PRESENTED FOR REVIEW

1. Does the absolute deprivation

of elementary and secondary education

deprive a child of fundamental Consti-

tutional Rights?

2. Does Texas Education Code

§21.031(d), which defines a person as

a non-resident solely because of his

motive for establishing residence, create

an invalid, irrebuttable presumption of

non-residence under Vlandis v. Kline,

412 U.S. 441 (1973)?

3. Can the right to travel

enunciated in Shapiro v. Thompson,

394 U.S. 618 (1969), be violated by

motivational residency requirements, like

Tex. Ed. Code §21.031(d), as well as by

durational residency requirements?

4. In order for Tex. Ed. Code

§21.031(d) to pass strict scrutiny, must

there be a finding not only that it serves

a compelling state interest, but also

that no less restrictive alternatives are

available to achieve the State's purpose?

PRAYER

The Petition-rs respectfully pray

that a Writ of Certiorari issue to review

the judgment and opinion of the United

States Court of Appeals for the Fifth

Circuit entered in this proceeding on

June 19, 1981.

TABLE OF CONTENTS

Questions Presented .....+ +. «

Opinion Below . . . . . . . . . - . .

mempe mee eee, « « 6 6 6 6 te 6 ee 6

Statutory Provisions. ....+.++ -.

Seatement @F COGS « « s« © © ee @ ee

Reasons For Granting The Writ... .

Tex. Ed. Code §21.031(d)

Absolutely Deprives American

Citizens of Elementary and

Secondary Education. ......

The Standard of Strict Scrutiny

Applied by the Court of Appeals

Conflicts with Supreme Court

Precedent. . «© «+ +« «eee. e

The Court of Appeals Inter-

pretation of Right to Travel Is

Contrary To Supreme Court

oe ee ee ee ee ee

The Court of Appeals' Holding

That Texas May Irrebutably

Presume Non-Residence from

Motive For Residence Conflicts

with Supreme Court Precedent . .

This Case is Closely Related

to the Issues Which The Court

Will Consider in Toll v. Moreno.

a cn oe ee me, ow oe ee ee

iii

Appendix [Decision of Court of

Appeals] ..... ++ + «+ ADp.A

Appendix [Findings of Fact and

Conclusions of Law of the

District Court) ..... . Avop. B

Appendix [Texas Education Code

$21.031). « «© © © © © « « « App. C

CITATIONS

CASES

Besaw v. Affleck, 333 F.Supp. 775

Weeds EPTED wc eee ee eee 23

Bright v. Beasler, 336 F.Supp. 527

wewew.w ew ee 16

Brown v. Board of Education,

aay Gos Se Ceeeee ce 6 6 eee 10

Dunn v. Blumstein, 405 U.S. 330

fart eae ee Oe ee 1G a

Edwards v. California, 314 U.S. 160

(1941). . . . - . + - . . . . . . . 29

Elkins v. Moreno, 435 U.S. 647

Se . . - . 7 . . . . . - . . . 27

Hawes v. Club Ecuestre Ei

Comandante, 598 F.2d 698 (lst

Cir. 1979)... ° soe¢ene 8 25

Jones v. Helms, 49 U.S.L.W. 4692,

69 L.Ed.2qg 118 (June 15, 1981)... 29

Memorial Hospital v. Maricopa

County, 415 U.S. 50 (i574) are | A

22, 26

Moore v. East Cleveland, 431 U.S.

494 (1977) . - - . . 7 . . . . . . 7 22

Morris v. Gilmer, 129 U.S. 315

T1889)

6 6 & @ 8 6 6 8. 6-8° 8 Ce 25

Plyler v. Doe, No. 80-1538, prob.

juris. noted 49 U.S.L.W. 3824

(May 4, 1981) of Doe v. Plyler,

628 F.2d 448 (5th Cir. 1980). ... 10, ll

Roe v. Wade, 410 U.S. 113 (1973). . 28

San Antonio School District v.

Rodriguez, 411 U.S. % taerele « 0 « Oe a

Shapiro v. Thompson, 394 U.S. 618

Weslo cee eet ee eee ee 15

17-26

29, 31

33, 34

Shivelhood v. Davis, 336 F.Supp.

EEE Wie Che SUTEls ce eee ee 16

Starns v. Malkerson, 401 U.S. 985

, a 326 F.Supp. 234

(D.Minn. de ce eceneoeene et ee oe ate ae

Texas v. Certain Unnamed Alien

School Children, No.

prob. juris. noted 49 U. S.L. W.

3930 (June 15, 1981) of In re Aiien

School Children, 501 F.Supp 544

3. =» ree.

Toll v. Moreno, No. 80-2178,

50 U.S.L.W. 8215 (Oct. 6, 1981)

ranting cert. to Moreno v. Univ.

of Md., 645 F.2d 217 (4th Cir.

| rrr ee

Vv.

Vlandis v. Kline, 412 U.S. 441

T1973)

Weber v. Aetna Cas. and Sur. Co.

Williamson v. Osenton, 232 U.S.

619 (1914). a . . o . . . . . .

v. Bowens, 397 U.S. 49

570) aft'g Gaddis v. einen: 304

F.Supp. 717 (S.D.N.Y. ee

STATUTES

Texas Education Code §21.031(b)

Texas Education Code §21.031(c)

Texas Education Code §21.031(d).

’

16, 32

18-23

Se a

’

throughout

OPINION BELOW

The Ypinion of the Court of Appeals

appears as Arredondo v, Brockette, 648

F.2d 425 (5th Cir, 1981),2/ and is

attached hereto as Appendix A. The

Findings of Fact and Conclusions of Law

filed by the District Court appear at

482 F.Supp. 212 (S.D. Tex. 1979) and are

attached hereto as Appendix B.

JURISDICTION

The judgment of the Court of Appeals

for the Fifth Circuit was entered on

1/ The parties in the Court of Appeals included,

.in addition to Petitioner, Delia Morales, and

Flora Falcon as next friend for Rita Gomez. The

Pharr-San Juan-Alamo Independent School District

and its superintendent Arturo Guerra were Appellees

below, but are not interested parties in this

petition. The caption on the cover reflects all

parties interested in this petition.

June 19, 1981. Timely petitions for re-

hearing and rehearing en banc were denied

on August 13, 1981. This petition for

certiorari was filed within 90 days of

that date. Supreme Court jurisdiction is

invoked pursuant to 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

Texas Education Code

§21.031 Admission

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 under 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.

(d) In order for a person under

the age of 18 years to establish a

residence for the purpose of

attending the public free schools

separate and apart from his parent,

guardian, or other person having

lawful control of him under an

order of a court, it must be esta-

blished that his presence in the

school district is not for the

primary purpose of attending the

public free schools. The board of

trustees shall be responsible for

determining whether an applicant

for admission is a resident of the

school district for purposes of

attending the public school.

The complete text of Tex. Ed. Code

§21.031 is attached hereto as Appendix C.

STATEMENT OF THE CASE

Texas provides that all children in

the State shall be eligible for free

public schooling in the district in which

they reside. Tex. Ed. Code §21.031(b).

Residence is the only admission require-

ment applied to children who live

with their parents or guardians.

Tex. Ed. Code §21.03l1(c). However, Tex.

Ed. Code §21.031(d) requires that children

wro reside in any other living arrangement not

only prove their residence in the district

but their purpose for establishing that

residence. If a child in this group has

made his home in the school district for

the “primary purpose of attending school"

he. is conclusively presumed to be a non-

resident. Tex. Ed. Code §21.031(d).

Purpose for establishing residence is not

an issue for any other school applicant.

This case challenges the facial consti-

tutionality of Tex. Ed. Code §21.031(d).

Petitioner ROBERTO MORALES is a

citizen of the United States, although

both of his parents are Mexican citi-

zens who may not legally reside in the

United States. In 1977, when he was

nine years old, it was decided Roberto

should attend school in the United

States and learn to speak English. His

parents were forbidden by law from

accompanying him to the United States

because of their status as Mexican

citizens. As a result, Roberto moved

from his parents home in Mexico to

reside with this adult sister ORALIA

MARTINEZ in McAllen, Texas. In the

fall of 1977 ROBERTO applied for admis-

sion to the Respondent McALLEN SCHOOL

DISTRICT. The DISTRICT denied him

admission pursuant to Tex. Ed. Code

§21.031(d) because he had moved to

McAllen, Texas for the purpose of attend-

ing school. 482 F.Supp. at 213-215.

(Record at 50).

Although defined by Tex. Ed. Code

§21.031(d) as a non-resident, there is

no question that Petitioner's domicile

is in McAllen, Texas. The District

Court found that he had met fully the

residency requirements applied to all

other school applicants. 482 F.Supp.

at 214, (finding of fact 7; hereinafter

ff. __). ROBERTO has made his home in

the McAllen District continuously since

1977 -- even during the year he did not

attend school.2/ The School District

does not argue that ROBERTO lives outside

the District or that his residence is

otherwise a sham; the District's only

contention is that ROBERTO's residence

in the District is motivated by an

unacceptable reason, i.e., the desire to

attend school. The District continues

to deny him admission to school for this

2/ ROBERTO did not attend school at all during

the 1977-1978 year although he continued to re-

side in McAllen. In the fall of 1978 he paid

tuition for one semester which he seeks in damages.

Since December 1979, he has attended school pur-

suant to the District Court's injunction pending

appeal. 482 F.Supp. at 214,

reason. 3/

Because ROBERTO and his sister are

indigent, they cannot afford to pay

tuition. As a result, Roberto is abso-

lutely deprived of all opportunity to

obtain an education in the United States,

and the District Court so found. 462

F.Supp. at 214, 215, (ff. 12, 25).

Petitioner filed suit in federal district

court in December of 1977 pursuant to 42

U.S.C. §1983 contending that Tex. Ed.

Code §21.031(d) on its face denies him

equal protection of the law, violates

3/ There is no contention that $21,.031(d) is

necessary to assure that all students live with

a parent or guardian. Even children living alone

will be admitted if they don't have the one

proscribed motive. Nor is a minor precluded from

establishing a residence for school purposes. Any

child living epartfrom his parents may establish a

residence and be admitted to school as long as his

motive for doing so is deemed acceptable.

his right to travel, and denies him due

process by creating an invalid irrebut-

table presumption of non-residence.

Jurisdiction was founded on 28 U.S.C.

§1343 (1976).

REASONS FOR GRANTING CERTIORARI

1. Texas Education Code §21.031(d)

Absolutely Deprives American

Citizens of an Education

Thousands of American citizens are

born to Mexican national parents. 4/

Only by attending school in the United

States can these children learn to

speak English and develop the understanding

4/ AU.S. citizen child may have Mexican national

parents by virtue of his birth in the U.S. while

his parents are temporarily in the country, either

with a visa or illegally. Whatever culpability

their parents may have, such children may not be

treated as less than full citizens because of

the legal transgressions of their parents. Weber

v. Aetna Cas. and Sur. Co., 406 U.S. 164 (1972).

of this country necessary to meaningfully

pursue their American citizenship. How-

ever, because their parents are Mexican,

these children must choose between

living with their parents and migrating

to the United States to obtain this

vital education. Tex. Ed. Code §21.031(d)

is designed specifically to deter such

children from migrating to Texas by

denying them free admission to the

public schools. 482 F.Supp. at 215,

216(ff. 25, 37). As a result, §21.031(d)

absolutely deprives Petitioner and

thousands of children like him of an

education. 482 F.Supp. at 215 (ff. 25,

26). This denial of education is of

great importance, not only to the children

who it effectively deprives of the

benefits of citizenship, but to the

society in which this underclass will

10.

live and work as adults. See, Brown

v. Board of Zducation, 347 U.S. 483, 493

(1954); In re Alien School Children

Litigation, 501 F.Supp. 544, 596-597

(S.D. Tex. 1980) prob. juris. noted sub

nom. Texas v. Certain Unnamed Alien

School Children, 49 U.S.L.W. 3930 (June

This Court has not decided what level

of scrutiny must be applied to an absolute

deprivation of primary and secondary educa-

tion. However, the Court will soon hear

argument in two other cases which raise

that question, Texas v. Certain Unnamed

Alien School Children, supra; and Plyler

v. Doe, No. 80-1538, prob. juris. noted

49 U.S.L.W. 3824 (May 4, 1981). Because

the outcome in those two cases could well

have a determinative impact upon this

case, the Court should grant certiorari.

ll.

Indeed, Alien School Children, Plyler,

aid this case are closely related. All

three arise from Texas’ attempt to solve

the problem of its underfinanced edu-

cational system by excluding from the

public schools discrete classes of

children living within the borders of

the State -- illegal aliens and citizen

children of aliens. The statutory form

of the exclusion differs, but both

statutes depend on the rationale that

excluding some children from school will

improve the quality of education for

those who remain. Compare, Doe v. Plyler,

628 F.2d 448, 459 n.30 (5th Cir. 1980),

with Arredondo, supra, 482 F.Supp. at

215-216. The operation of the statutes

through a tuition requirement, and the

special burden tuition places on indigent

students is also the same in both cases.

12.

Compare, Alien School Children, supra,

501 F.Supp. at 570-572, with Arredondo,

supra, 482 F.Supp at 215 (ff. 25).

The difference between this case

and the alien school children cases is

that Petitioner and children like him

are United States citizens. Whether or

not aliens may be excluded from school

because of their illegal status, Petitioner

has made his home in Texas as a matter

of constitutional right. The Court of

Appeals' decision allows Petitioner to

exercise that right only if he is willing

to give up his claim to the free public

education enjoyed by the rest oi the

children in Texas. This Court should

examine Texas' denial of elementary

education to a discrete group of American

citizens as carefully as it examines the

denial of education to illegal aliens.

13.

2. The Standard of Strict Scrutiny

Applied by the Court of Appeals

Conflicts with Supreme Court Precedent

The Court of Appeals held that

§21.031(d) passed strict constitutional

scrutiny for the sole reason that, “Texas'

interests in enacting the statute are

sufficient." 648 F.2d at 428. This

holding misstates the strict scrutiny

standard and applies it in a manner

directly contrary to Supreme Court

precedent.

If a statute is to satisfy strict

scrutiny this Court requires that it

serve a compelling state interest, and

that it be a necessary means of achieving

thet end:

It is not sufficient for the

State to show that durational resi-

dency requirements further a very

substantial state interest. In

pursuing that interest the State

cannot choose means that unneces-

sarily burden or restrict consti-

tutionally protected activity.

14.

Statutes affecting constitutional

rights must be drawn with "precision,"

NACCP v. Button, 371 U.S. 415, 438

; U.S. v. Robel, 389 U.S.

250, 265 (1967), and must be “tailored”

to serve their legitimate objectives.

Shapiro v. Thompson, 394 U.S. 618,

631 (1969). or if there are other,

reasonable ways to achieve those

goals with a lesser burden on con-

stitutionally protected activity, a

State may not choose the way of

greater interference. If it acts

at all it must choose “less drastic

means." Shelton v. Tucker, 364

U.S. 479, 488 (15 .

Dunn v. Blumstein, 405 U.S. 330, 343

(1972).

In holding that §21.031(d) passed

strict scrutiny, the Court of Appeals

did not find that the State's interest

was compelling, or that the statute was

necessary. In fact, the Court of Appeals’

strict scrutiny analysis was entirely

quoted from the District Court's opinion --

an opinion which applied the rational

basis standard and found only that §21.031(d)

was rationally related to a "legitimate"

state interest.

15.

The Court of Appeals’ failure to

find §21.031(d) to be a necessary means

of achieving a compelling state interest

was more than an error of diction. This

Court has held that interests such as

those put forward by the School District,

altHough legitimate, are not compelling

interests sufficient to withstand strict

scrutiny. See, Shapiro v. Thompson, 394

U.S. 618, 633-638. (1969). Even if Texas'

interests were compelling, Section 21.031(d)

is hardly a precisely drawn definition of

residency when it defines a child as a

non-resident even though he has been living

in McAllen, Texas since 1977 and, “has

continously resided there since that time,"

482 F.Supp. at 214 (emphasis added).

Less restrictive and more carefully

tailored definitions of school residency

16.

are available.5/

The Court of Appeals’ decision now

stands as precedent in the Fifth Circuit

that a State may justify the violation

of fundamental constitutional rights

simply by showing a “legitimate interest.”

This dilution of the strict scrutiny

standard will greatly weaken future

challenges to statutes which impinge on

fundamental rights. The Court of Appeals’

decision “so far eceparts from the

accepted and usual course of judicial

proceedings . .. as to call for an

5/ See, e.g., Vlandis v. Kline, 412 U.S. 441,

454 (1973). Shivelhood v. Davis, 336 F.Supp.

1111, 1115 (D.Vt. 1971); Bright v. Beasler, 336

F.Supp. 527, 533-534 (E.D. Ky. 1971). The District

Court itself implied that alternatives exist.

See 482 F.Supp. at 222.

17.

exercise of this Court's power of super-

vision." Sup. Ct. Rule 17.1(a).

3. The Court of Appeals Interpretation

of Right to Travel Is Contrary to

Supreme Court Precedent

Petitioner asserts that §21.031(d)

deters American citizens, including Peti-

tioner, from migrating to Texas by

depriving them of an essential state

benefit, public education. This deter-

rance of migration is not accidental.

The Texas legislature adopted §21.031(d)

for the express purpose of deterring

migration by American citizens coming

from Mexico to live in Texas. 482 F.

Supp. at 216 (ff. 37). Such a purpose

is constitutionally impermissible.

Shapiro, 394 U.S. at 633. By manipulat-

ing the definition of residency for

purpose of deterring migration,

18.

Tex. Ed. Code §21.031(d) violates Petitioner's

fundamental right to travel and is uncon-

stitutional under the Supreme Court holding

in Shapiro.

Both the District Court and the Court

of Appeals summarily rejected Petitioner's

right to travel claim stating that, only

durational residency statutes can violate

the right to travel. 648 F.2d at 428.

This holding directly conflicts with

Supreme Court precedent in Shapiro,

supra; Wyman v. Bowens, 397 U.S. 49

(1970), aff'g Gaddis v. Wyman, 304

F.Supp. 717 (S.D.N.Y. 1969); and Memorial

Hospital v. Maricopa County, 415 U.S.

250 (1974).

In Wyman, the Court struck down a

motivational residency statute as a

violation of the right to travel. The

statute in that case defined any person

19.

who came to New York for the primary

purpose of obtaining welfare as a non-

resident for the first year of his

residency. Its stated objective was "to

deter indigents from migrating into New

York for the purpose of taking advantage

of higher home relief." Wyman, 304

F.Supp. at 723. The Court held:

[T]hat objective, regardless of the

statutory form by which it is

implemented (whether in terms of

duration of residency, burden of

proof as to motive, or the like) has

been foreclosed by Shapiro.

304 F.Supp. at 723.

Although the statute in Shapiro was

in fact durational, it too operated as a

motivational residency requirement. It

sought to deter not only new residents,

but specifically "those indigents who

would enter the state to obtain larger

[welfare] benefits." Shapiro, 394 U.S.

at 631. This motivational aspect of the

20.

statute was held unconstitutional:

"More fundamentally, a state may no

more seek to fence out indigents who

seek higher welfare benefits than it

may try to fence out indigents generally.”

Id. at 631.

other questions, the continued vitality

of Vlandis v. Kline, 412 U.S. 441 (1973),

which struck down the use of conclusive

presumptions for determining residence for

college tuition purposes. The decision

in Toll could have a decisive impact

upon this case since the Court of Appeals

relied upom Vlandis and other college |

tuition cases to uphold §21.031(d).

There is an apparent conflict between

this Court's college tuition decisions

33.

and its right to travel decisions with

respect to what a state may do to protect

its interest in the finances of its colleges

and public schools. See, Vlandis v. Kline,

412 U.S. 441, 455 (Marshall, J., concurring).

That interest is sufficient to justify

durational residency requirements for

in-state tuition. Starns v. Malkerson,

401 U.S. 985 (1972) aff'g 326 F.Supp.

234 (D. Minn. 1970). Indeed, the Court

in Vlandis, supra, indicated in dicta

that a state may deny tuition benefits

to those, "who have come [to the state]

solely for educational purposes." 412

U.S. at 453-454. Yet financial interests

are not sufficient to deny education to

“those who move to take advantage of

better educational opportunites," Shapiro,

394 U.S. at 632.

This case lies at the intersection

34.

of Shapiro and the college tuition

cases. As a school tuition case it is

plainly related to the college cases.

But like welfare in Shapiro, primary

education is a life necessity. Beneficial

as reduced college tuition may be it can-

not be compared to the absolute deprivation

of all primary education, Starns, 326

F.Supp. at 238. And like the statute in

Shapiro, §21.031(d) is specifically

designed to discriminate against a

particular group of people in order to

deter them from migrating. No such

purpose may be ascribed to college

residency rules, Starns, 326 F.Supp. at

237, at least until Toll.

The issues raised in striking a

constitutional balance between the interests

of states in the finances of their colleges

and public schools and the competing

interests of individuaS in obtaining those

35.

benefits are already before the Court in

Toll v. Moreno, supra, and Alien School

Children, supra. Toll presents these

issues in the context of individuals denied

reduced college tuition; Alien School

Children presents them in the context of

illegal aliens denied public schooling.

Certiorari should be granted to review this

case because it raises these same issues

and does so in their most pressing context:

the absolute deprivation of elementary

and secondary education to United States

citizens.

CONCLUSION

For the reasons stated above, a Writ

of Certiorari should issue to review and

reverse the judgment and opinion filed by

the Fifth Circuit in this case.

36.

Respectfully submitted,

JAMES A. HERRMANN

TEXAS RURAL LEGAL AID, INC.

305 E. Jackson, Suite 206

Harlingen, Texas 78550

(512) 423-3111

Attorney of Record for

Petitioner

EDWARD J. TUDDENHAM

TEXAS RURAL LEGAL AID, INC.

FARM WORKER DIVISION

P.O. Box 2223

Hereford, Texas 79045

(806) 364-3961

Of Counsel for Petitioner

— xIpueddy

648 F.2d 425 APPENDIX A_ page l

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MARIA ARREDONDO, et al,

Plaintiffs~Appellants,

Vv.

M. L. BROCKETTE, et al.,

Defendants-Appelees.

No. 80-1031

June 19, 1981

Appeal from the United State District

Court for the Southern District of Texas.

Before BROWN, GEWIN*, and POLITZ,

Circuit Judges.

POLITZ, Circuit Judge:

The sole issue in this case is the

constitutionality vel non of Téx. Educ.

*Due to his death on May 15, 1981, Judge Gewin

did not participate in this decision. The case

is being decided by a quorum, 28 U.S.C. 846(d).

648 F.2d 427 Appendix A page 2

Code

Supp.

Ann. tit. 2, §21.031(d) (Vernon

1978), which provides:

In order for a person under the age

of 18 years to establish a residence

for the purpose of attending the

public free schools separate and

apart from his parent, guardian, or

other person having lawful control

of him under an order of a court,

it must be established that his

presence in the school district is

not for the prima urpose of

attending the sabitc free schools.

The board of trustees shall be

responsible for determining

whether an applicant for admission

is a resident of the school

district for purposes of attending

the public schools. (Emphasis

added).

Appellants are United States citizens

between five and eighteen years of age,

not living with their parents or legal

guardians, who have chosen to live in a

school district for the primary purpose

of attending its free public schools.

They were denied tuition-free admission

to the public schools because of the

strictures of the challenged statute.

048 F.2d 427 Appendix A_ p.3

The district court, 482 F.Supp. 212,

upheld the statute. We affirm.

The original complaint was filed

as a class action, but this aspect was

eliminated by an amended complaint.

Only two of the original plaintiffs

remain, Roberto Morales and Rita

Gomez Y. It is contended that §21.031(d)

of the Texas Education Code violates the

due process and equal protection clauses

of the fourteenth amendment of the

Constitution.

1/ The other plaintiffs are no longer parties to

the litigation for various reasons, they withdrew

from the school district, were subsequently admitted

into the public schools, or presented no evidence

in support of their claim.

648 F.2d 427 Appendix A p.4

Appellants argue that the challenged

statute, as applied, results in invidious

discrimination against Mexican-Americans,

violating their right to equal protection.

The Supreme Court has found classifications

based on race or alienage inherently

suspect and subject to close judicial

scrutiny. Graham v. Richardson, 403

U.S. 365, [648 F.2d 428) 371-72,

29 L.Ed.2d 534 (1971). Were this

statute to be so classified, it would be

subjected to strict judicial scrutiny

and would not be upheld unless a

compelling state interest were shown.

San Antonio School District v. Rodrigvez,

411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16

(1973). We do not address this question

because discriminatory application is

not alleged in the

648 F.2d 428 Appendix A p. 5

amended complaint. The issue may not be

revived on appeal.

Appellants assert a second

ground for application of the compelling

interest test - the statute improperly

burdens the fundamental right of inter-

state travel. Strict judicial scrutiny

is also appropriate in those situations

in which a constitutionally protected

right is infringed. San Antonio School

District v. Rodriguez, supra, 411 U.S.

at 40, 93 S.Ct. at 1300. Although not

explicitly mentioned in the Constitution,

the right to interstate travel has been

repeatedly recognized as a basic right,

fundamental to the concept of our

federal union. United States v. Guest,

383 U.S. 745, 757-58, 86 S.Ct. 1170,

1177-1178, 16 L.Ed.2d 239 (1966). We

recognize that the statutory definition

648 F.2d 428 Appendix A p,.6

of residency in §21.031(d) denies

tuition-free admission to public school

to those whose presence in the school

district is primarily for that purpose.

All residency requirements, however, are

not unconstitutional. The Supreme

Court has distinguished between

residency requirements and durational

residency requirements, finding only the

latter violative of the right to travel.

See McCarthy v. Philadelphia Civil

Service Commission, 424 U.S. 645, 96

S.Ct. 1154, 47 L.Ed.2d 366 (1976).

Based on this distinction, the district

court declined to apply the strict

scrutiny standard, requiring instead

that the statute be supported by

minimum rationality and, on that basis,

found the statute constitutional,

We agree in principle with the

district court's analysis of the right

648 F.2d 428 Appendix A p.7

to interstate travel. Nevertheless, we

defer the determination whether the

strict scrutiny or rational basis yard-

stick should be applied for under either

measure Texas’ interests in enacting

the statute are sufficient. We need not

decide whether in another instance

involving a similar statute a legitimate

state interest alone would suffice. We

are in accord with the district court's

articulation of the state's interests,

expressed as follows:

"A state has a legitimate

interest in protecting and preserving

the quality of its educational system

and the right of its own bona fide

residents to attend state schools on a

preferred tuition basis. Vlandis v.

Kline, [412 U.S. 441, 452-53, 93 S.Ct.

2230, 2236-2237, 37 L.Ed.2d 63 (1973)].

648 F.2d 428 Appendix A p.8

Similarly, the state would have an

interest in preserving the financial

integrity of the various components of

the state educational system, i.e., the

individual school districts. East

Texas Guidance and Achievement Center,

Inc. v. Brockette, 431 F.Supp. 231, 236

(E.D. Tex. 1977). . .- [T]he statute on

its face [applies] to children of parents

living anywhere in Texas or in any of

the United States. Since the statute

applies to any minor student living

apart from his parents, guardian or

other person with lawful control, it

even applies to attempted transfers

between different school districts

within the same county. The Court is

satisfied with these kinds of transfers,

free of all tuition, would cause

budgetary and administrative planning

problems sufficient to justify the

tuition scheme of the statute. As

648 F.2d 428 — Appendix A p.9

stated in DeLeon v. Harlingen Consolidated

Independent School District, [552 S.W.2d

922 (Tex. Civ. App. - Corpus Christi

1977, no writ)]:

‘The variability of student population

is a serious impediment to the

effective planning of virtually all

phases of the educational process.

There is no justification for a

requirement that a school system

educate in tuition-free manner

those children whose only indicia

of residence is mere presence

within the district, accompanied by

the student's desire (or that of

his parents) to attend school

therein. It is reasonable to draw

the line of residency, at least for

school admission purposes, between

those who come within a school

district because they had to move

into the district for some valid

reason other than [648 F.2d 429]

for educational purposes, and those

who have come there for the sole

purpose of getting tuition-free

education within the district.

There is no reason to add to the

burdens of a school district by

freely admitting to its schools

anyone who has previously resided

outside the district simply because

they wanted to attend the schools

in the district." 552 S.W.2d at

925." [Footnotes omitted. ]

648 F.2d 429 Appendix A p.10

Appellants argue that regardless of

-the level of judicial scrutiny, the

statute at issue creates an irrebuttable

presumption of non-residency and,

therefore, violates the due process

clause of the fourth amendment. Section

21.031(d) allows a perscn under 18 to

establish a residence separate from his

parents or legal guardian, for the

purpose of attending school in the

district in which his separate residence

is located, but only if the minor's

residence is not established in that

school district for the primary purpose

of attending its free public school.

Appellants insist that through its

definition of residency the statute

establishes an irrebuttable presumption

that a person living in a school district

for the primary purpose of attending

its school is a non-resident. We are

648 F.2d 429 Appendix A p.ll

impressed by the well-reasoned and

thorough analysis and discussion of the

district judge and adopt his response to

this contention as our own:

"This contention is essentially

grounded on two key cases, Carrington v.

Rash, 380 U.S. 89 [85 S.Ct. 775, 13 L.Ed.2d

675] (1965) and Vlandis v. Kline, 412

U.S. 441, [93 S.Ct. 2230, 37 L.Ed.2d 63]

(1973). In Carrington, the Court was

concerned with the provision of the

Texas Constitution that prohibited any

member of the armed forces of the United

States who moved his home to Texas

during the course of his military duty

from ever voting in a Texas election so

long as he or she is a member of the

Armed Forces. The Court held that this

provision violated the equal protection

clause of the Fourteenth Amendment. In

648 F.2d 429 Appendix A p. 12

that case, however, it was undisputed

that the petitioner had been domiciled

in Texas and that he ‘intend[ed] to

make his home there permanently.' 380

U.S. at 91 [85 S.Ct. at 777]. The Court

stressed that Texas had the right to

require all military persons to be bona

fide residents of the community before

they were entitled to vote but concluded

that if the military personnel were ‘in

fact residents, with the intention of

making Texas their home indefinitely',

then they had the right to be treated the

same as other Texas residents. Id. at

93-94 [85 S.Ct. at 778-779].

"In Vlandis, the Court considered a

Connecticut statute which attempted to

define residents and non-residents for

purpose of paying higher tuition at

state universities. Under the statutory

648 F.2d 429 Appendix A p.13

scheme, once a student was classified as

a ‘non-resident', his status was permanent

and irrebuttable during the entire time

that he remained at the university,

regardless of the particular fact

situation of any given student. The

Court held that this statute was a

violation of the constitutional right

to due process. In so doing,

however, the Court was careful to

observe that it was not questioning the

segregation of students into resident

and non-resident categories nor the

charging of higher fees to the latter

group. The narrow holding in Vlandis,

therefore, was simply that a permanent

irrebuttable presumption of non-residence

violated the due process clause.

"The Court -sannot agree that

the statute involved here creates an

648 F.2d 430 Appendix A p.14

irrebuttable presumption of the type

condemned by Vlandis. The challenged

portion of the statute provides, in

essence, that if a student under the age

of eighteen years is living apart from

his parent, guardian, or other person

having lawful control of him under court

order, then in order to establish

residency for purposes of attending free

public schools, that student must

establish that his presence in the

school district is ‘not for the primary

purpose of attending the public free

schools'. Thus, unlike statutes which

set forth objective criteria for residency

such as lencth of time or a negative

category (such as ‘member of the Armed

Forces'), this statute codifies the

ultimate universal test of residency,

namely [648 F.2d 430] subjective

intent. Of

648 F.2d 430 Appendix A p. 15

course, there is a certain superficial

logic to the argument that the statutory

definition is ‘irrebuttable' because as

long as the minor student admits that

he is living apart from his parent or

guardian for the sole purpose of attending

free public schools in a particular

district, then he can never be classified

as a resident. On the other hand,

however, by using the definition of

residency almost universally accepted

in school cases, the statutory criteria

in one sense merely states a truism,

namely that a person who only intends to

remain in a given place temporarily in

order to take advantage of a particular

benefit at that location necessarily

lacks the permanence to be classified

as a resident.

"Thus, in Vlandis, supra, the

648 F.2d 430 Appendix A p. 16

Supreme Court said:

‘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 educational purposes,

cannot take advantage oF is in-

state rates." 412 U.S. at 453-4

{93 S.Ct. at 2237] (emphasis

supplied).

In Spriggs v. Altheimer, Arkansas

School. District Number Twenty-Two, 385

F.2d 254 (8th Cir. 1967), the minor

school children had been charged

tuition because they were living with

their grandfather rather than with

their mother who lived in another

school district. The Eighth Circuit

remanded the case to the district

court to make a factual determination

as to the residency of the children for

purposes of the Arkansas statute which

648 F.2d 430 Appendix A p. 17

provided free public schools to all

persons ‘residing’ in the district. The

trial court was instructed to hear

further evidence on the question but

the following guideline was given:

‘On the other hand, if the residency

of the children with their grand-

father is only temporary for the

primary purpose of attending school

in a district other than where

their parents reside, then tuition

under the statutes would be

proper.’ 385 F.2d at 259.

In Clarke v. Redeker, 259 F.Supp. 117

{S.D. Iowa 1966) (three judge court),

regulations classifying residents and

non-residents for tuition purposes at

the State University of Iowa were upheld

as being constitutionally valid on

their face. Among other things, these

regulations defined a bona fide

resident to mean a student who is ‘not

in the state primarily to attend a

648 F.2d 430 Appendix A p.18

college’. 259 F.Supp. at 121. In Kelm

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

the Court noted that where a statute and

regulation ‘seek to distinguish between

temporary scjourners in Ohio who

reside there only for school purposes

and Ohio residents, the intention of

the party and what he has done to

evidence that intent becomes critical.’

Id., at 1271. Presence in a school

district for the primary purpose of

attending school was also held

insufficient ‘residency’ for tuition

purposes in Mansfield Township Board

of Education v. State Board of

Education [101 N.J.L. 474], 129 A. 765

(N.J. Sup. Ct. 1925) and Mt. Hope

School Dist. v. Hendrickson [197 Iowa

191], 197 N.W. 47 (Iowa Sup.Ct. 1924).

"In the instant case, Plaintiffs

648 F.2d 430 Appendix A p. 19

attack the statute only on its face but

it is interesting to note that at

least as applied within the Defendant

school districts, the statute can hardly

be called irrebuttable in actual

practice. Indeed, the stipulated

evidence clearly shows that between

approximately August 1, 1977, and May 25,

1978, the McAllen Independent School

District had only 56 applications from

students who were United States citizens

and covered by §21.031(d) and, of that

number, all but five were enrolled in

school. See Finding of Fact No. 38.

The evidence indicated that students

living apart from their parent or

guardian because of physical health or

emotional well-being, broken homes,

health reasons, etc., are all allowed

to qualify for free public schools.

648 F.2d 430 Appendix A p.20

Thus, if the statute in question contains

even an indirect presumption of non-

residency, certainly the presumption is

rebuttable in practice. See Michelson

v. Cox, 476 F.Supp. 1315 (S.D. Iowa

1979). Even if a child were to originally

move into the school district for the

primary purpose of attending school,

there is nothing on the [648 F.2d

431] face of the statute nor apparently

in actual practice, to prohibit the

child from being reclassified as a

resident if in fact his circumstances -

specifically his primary motive for

being in the district would change from

one school semester to another. In

summary, therefore, the only students to

whom the statutory definition of non-

residency is in any sense irrebuttable

are those students who persist in declaring

that their primary purpose for being

present in the school district is to

attend the

648 F.2d 431 Appendix A p. 21

public free schools. Because such a

declaration would ipso facto place the

student within the classic legal

definition of a non-resident, the Court

concludes that it does no violence to

the Constitution.

"Plaintiffs further

suggest, however, that the statute is

discriminatory because only one

category of students must defend its

motives. In other words, a literal

reading of Section 21.031(d), reflects

that if a student under the age of

eighteen years is living with his

parents, legal guardian, or some

person having lawful control of him

under court order, then that student's

purpose for being in the school

district is unquestioned. It is only

when a person under the age of eighteen

648 F.2d 431 Appendix A p.22

years is living apart from a parent or

guardian or other person having lawful

control that he must establish the

proper motive for being in the district.

In resolving this contention, it is

again necessary to recall the Court's

earlier conclusion that this statute

must only pass the rational basis test.

"As stated in Dandridge v.

Williams, 397 U.S. 471 [90 S.Ct 1153,

25 L.Ed.2d 491] (1970):

‘In the area of economics and

social welfare, a State does not

violate the Equal Protection

Clause merely because the

classifications made by its laws

are imperfect. If the classification

has some "reasonable basis", it

does not offend the Constitution

simply because the classification

"is not made with mathematical

nicety or because in practice it

results in some inequality."

Lindsley v. Natural Carbonic Gas

Co., Wee Oke VO [SL Boece. JOT,

340, 55 L.Ed. 369]. "The problems

of government are practical ones

and may justify, if they do not

require, rough accommodations -

illogical, it may

648 F.2d 431 Appendix A p. 23

be, and unscientific." Metropolis

Theatre Co. v. City of Chicago,

228 U.S. 61, 69-70 [33 S.Ct. 441,

443, 57 L.Ed. 730]. "A statutory

discrimination will not be set

aside if any state of facts

reasonably may be conceived to

justify it." McGowan v. Mar «and,

366 U.S. 420, 426 [81 S.ct. 1101,

1105, 6 L.Ed.2d 393].° 397 U.S.

at 485 [90 S.Ct. at 1161].

The Court concludes that in the present

statutory scheme, there is some

reasonable basis for separately

classifying minor school children

living apart from their parents,

guardian or other person having

custody under court order. Section

21.021(d) attempts to define 'residence'

for this one class of students. The

word ‘residence’ has many meanings in

the law, largely determined by the

statutory context in which it is used.

Kelm v. Carlson, 473 F.2d 1267, 1271

(6th Cir. 1973). Within the context of

649 F.2d 431 Appendix A p, 24

§21.031(d), residence means something

more than mere physical presence and

thus is more closely related to the

concept of domicile. See DeLeon v.

Harlingen Consolidated Independent

School District, 552 S.W.2d 922, 924

(Tex.Civ.App. - Corpus Christi 1977, no

writ). The cases discussing the

domicile of a minor are, therefore,

extremely helpful in evaluating the

reasonableness of this legislative

classification. Under Texas common law,

a minor is ‘not sui juris, and can

neither select nor change its domicile,

which is fixed by law as that of its

father." Smith v. Ansley, 257 S.W.2d

156, 157 (Tex.Civ.App. - Waco 1953,

writ ref'd n.r.e.); see Bradshaw v.

Peacock [145 Tex. 68], 194 S.W.2d 551,

554 (Tex.Sup.Ct.1946); Mills v Howard,

648 F.2d Appendix A p.25

228 S.W.2d 906, 907 (Tex.Civ.App. -

Amarillo 1950, no writ); see generally,

Restatement of Conflicts of Law §11l

(1934). This notion rests in large

measure upon the minor's presumed lack

of capacity to form the requisite intention

necessary to establish a separate domicile.

Deterly v. Wells, 53 S.W.2d 847, 848

(Tex.Civ.App. - Dallas 1932, writ

ref'd). Indeed, the common law pres-

umption is so strong that even when a

child is abandoned by both [648 F.2d

432] parents, he still cannot acquire

his own domicile. See generally

Restatement of Conflict of Law §34

(1934) (where a child is abandoned by

both parents it takes its father's

domicile at the time of the abandonment).

Since the child's ability in Texas to

acquire his own separate residence is a

matter of legislative grace, it is

certainly not unreasonable

§48 F.2d 432 Appendix A p. 26

to require that his presence in another

school district be for some cogent

reason other than attending free public

school in that district before qualifying

for tuition-fxee status. See DeLeon v.

Harlingen Consolidated Independent

School District, supra, at 924."

[Footnotes omitted. ]

We hold that §21.031(d) is a

constitutional enactment of the Texas

state legislature. The decision of the

district court is

AFFIRMED.

482 F.Supp. 212 Appendix B_ Page l

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

CA-B-77-296

MARIA ARREDONDO as next friend

for ANDRES LOPEZ, JESUS CARRILLO

as next friend for FIDEL ALVARES,

MRS. ARTINO GARZA as next friend

for DOLORES MICHELLE RODRIGUEZ,

ORALIA MARTINEZ as next friend

for DELIA and ROBERTO MORALES,

FLORA FALCON as next friend for

RITA GOMEZ, ANTONIO GUTIERREZ as

next friend for SILVESTRE MARQUEZ

LOPEZ, and VICTORIA MARTINEZ as

next friend for MARTA GUTIERREZ-

GONZALEZ,

Plaintiffs

vs.

M.L. BROCKETTE, Commissioner of

482 F. Supp. 212 Appendix B p.2

Education in his official capacity,

the TEXAS EDUCATION AGENCY, PHARR-

SAN JUAN-ALAMO INDEPENDENT SCHOOL

DISTRICT, McALLEN INDEPENDENT

SCHOOL DISTRICT, MISSION INDEPENDENT

SCHOOL DISTRICT, HARLINGEN

INDENPENDENT SCHOOL DISTRICT, and

ARTURO GUERRA, RODNEY CATHY, KENNETH

WHITE, and DAN IVES, individually and

in their offic 1 capacities,

Defendants

[482 F.Supp. 213]

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

As will be more fully detailed

below, the instant suit was originally

filed asking the Court to declare

unconstitutional a state statute and

to enjoin the attempted enforce-

ment of same. A hearing was held on

482 F. Supp. 213 App. B p. 2

October 26, 1979, at which time

evidence on the merits was received.

Pursuant to Rule 52, Federal Rules of

Civil Procedure, the Court now sub-

mits its Findings of Fact and Con-

clusions of Law. Virtually all of

the findings of fact are based upon

stipulations made between the parties.

FINDINGS OF FACT

1. Both Plaintiff Roberto Morales

and Plaintiff Rita Gomez are United

States citizens.

2. Each child is over five years

of age and under eighteen years of

age.

3. Plaintiff Roberto Morales

lives within the McAllen Independent

School District for the primary

purpose of attending school and learn-

482 F. Supp. 213 App. B p.4

ing English.

4. Plaintiff Rita Gomez lives

within the Pharr-San Juan-Alamo

School District for the primary

purpose of attending school.

5. Neither Plaintiff resides

with his or her parent, legal

guardian, or other person [482 F.Supp.

214] having lawful control of him

under a court order,

6. Neither Plaintiff has a

parent, legal guardian, or other

person having lawful control of

him residing in the McAllen or

Pharr-San Juan~Alamo School Dist-

ricts.

7. Both Plaintiffs would

otherwise be eligible for admis-

sion to the public free schools

under the provisions of Tex. Educ.

482 F. Supp. 214 App. Bp. 5

Code Ann. tit. 2, §21.031 (c)

(Vernon Supp. 1978), which provides:

The board of trustees of any

public free shcool 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 schol-

astic year if such person or his

parent, guardian or person having

lawful control resides within the

school district.

8. Both Plaintiffs were aenied

admission to the Texas free schools

under the provisions of Tex. Educ.

Code Ann. tit. 2, §21.031(d) (Vernon

Supp. 1978), which provides:

In order for a person under the

age of 18 years to establish a

residence for tlie purpose of attend-

ing the public free schools separate

and apart from his parent, guardian,

or other person having lawful control

of him under an order of a court, it

must be established that his presence

in the school district is not for the

primary purpose of attending the public

free schools. The board of trustees

shall be responsible for determining

482 F. Supp. 214 App. B p. 6

whether an applicant for admission

is a resident of the school dist-

rict for purposes of attending the

public schools.

9. Plaintiff Roberto Morales

began living in McAllen Independ-

ent School District at the begin-

ning of the 1977 school year and has

continuously resided there since that

time.

10. Plaintiff Roberto Morales

only intends to reside in the McAllen

Independent School District until

he completes his education.

ll. While Plaintiff Roberto

Morales was denied admission to

the McAllen Independent School

District in 1977 and 1978, he

was granted permission to attend

school in November, 1978, cont-

ingent upon the payment of tuition.

(See Pl. Exh. No. 2).

482 F.Supp. 214 App. B_ p.7

12. Plaintiff Roberto Morales and

the person with whom he is residing are

both indigent.

13. In November, 1978, tuition in

the amount of $378.C0 was paid on behalf

of Plaintiff Roberto Morales by the Texas

Rural Legal Aid, Inc. The parties appar-

ently dispute whether these funds were

those of the corporation itself or whether

they were actually furnished by the family

of Morales. Insufficient evidence was

presented to enable the Court to resolve

this point but the Court regards the

issue as irrelevant to the ultimate

disposition of the case. (Pl. Exh. No.3).

14. Plaintiff Roberto Morales has

not paid tuition for the Spring, 1978, or

Fall, 1979, semesters and he was origin-

ally informed that his continued enroll-

ment was conditioned upon the payment of

all monies due and the availability of

space,

482 F. Supp. 214 App. B p. 8

15. Plaintiff Roberto Morales

was expelled from school on November 28,

1978, for failure to pay tuition. On

December 12, 1979, this Court issued a

preliminary injunction returning him to

school conditioned upon his first post-

ing a bond in the sum of $1,224.00 to

secure Defendant McAllen School District's

claims for tuition against Plaintiff. The

Plaintiff is now in school pending ult-

imate determination of this case on the

merits.

16. Plaintiff Rita Gomez only

intends to reside in the Pharr-San Juan-

Alamo School District until she completes

her education.

17. Plaintiff Rita Gomez was denied

admission to school for the 1979-80

school year by officials of the Pharr-San

Juan-Alamo School District.

18. Plaintiff Rita Gomez and the

482 F. Supp. 214 App. Bp. 9

person with whom she is residing are

both indigent.

19. Plaintiff Delia Morales, a

United States citizen and the sister of

Plaintiff [482 F. Supp. 215] Roberto

Morales, was also denied admission to

the McAllen Independent School District,

pursuant to §21.031 (d). She was then

admitted upon paying tuition, but sub-

sequently withdrew from school and re-

turned to Mexico. Her tuition was re-

funded by the McAllen School District.

See Pl. Exh. 5.

20. According to admissions con-

tained in the pleadings, Plaintiff Fidel

Alvares, a United States citizen, was

also denied admission to the McAllen

Independent School District, pursuant to

§21.021(d), but no further evidence was

presented either in support of or in

opposition to his clain.

482 F.Supp. 215 App.B p.10

21. According to the pleadings,

Plaintiff Andres Lopez, a United States

citizen, was originally denied admission

to the Pharr Independent School District,

pursuant to §21.031(d), but was sub-

sequently admitted. No further evidence

was presented either in support of or

in opposition to his claim.

22. Prior to trial, the Plaintiffs

voluntarily dismissed their cause of action

as to Defendants Harlingen Independent

School District and Dan Ives. The

dispute of Plaintiffs Silvestre Marquez

Lopez and Marta Gutierrez-Gonzales was

with these Defendants; therefore, their

claims will not be adjudicated herein.

23. Prior to trial, Plaintiffs

moved and were granted permission to

dismiss, without prejudice, their cause

of action against Defendants Mission

Independent School District and Kenneth

482 F.Supp. 215 App.B p.1ll

White. Since, according to the motion,

no known Plaintiffs are currently being

excluded from the district, the claim

of Plaintiff Dolores Michelle Rodriguez

has been rendered moot and incapable of

adjudication.

24. None of the adults with whom

the Plaintiffs reside desire to become

the legal guardian or legal custodian

of the child who lives with them.

25. The Texas statute in question

operates to absolutely deprive a child

of an education if it is determined that

the child resides apart from his or her

parent, legal guardian or one having

lawful control over him or her for the

primary purpose of attending the free

school and that child is indigent.

26. If Section 21.031(d) of the

Texas Education Code were declared un-

constitutional, it would, in all probab-

482 F.Supp. 215 App.B p.12

ility, cause the immediate enrollment of

thousands of children from other states

and countries who are United States cit-

izens whose parents do not reside within

the relevant school district. Further-

more, the enrollment would probably in-

crease significantly each year.

27. The legislative classification

imposing the residency requirement applies

to intrastate school district transfers

as well as transfers of children from

other states and countries.

28. Declaring the statute un-

constitutional would cause substantial

numbers of intra-district transfers,

which would further cause school popula-

tions to fluctuate. Also, the intra-state

migration of students between school

districts would cause problems in the

althletic programs by possibly encourag-

ing the recruitment of athletes,

482 F.Supp. 215 App.B p.13

29. Fluctuating school populations

would make it impossible to predict en-

rollment figures--even on a semester-by-

semester basis, causing over-or-under-

estimates on teachers, supplies, materials,

etc.

30. The increased enrollment of

students would cause overcrowded class-

rooms and related facilities; over-large

teacher-pupil ratios; expansion of bi-

lingual programs; the purchase of books,

equipment, supplies and other customary

items of support; all of which would

require a substantial increase in the

budget of the school districts.

31. Neither the State of Texas nor

the Texas Education Agency nor the United

States of America provides funds to assist

school districts with educating Plaintiffs

or children similarly situated. This

burden falls exclusively upon the local

482 F.Supp. 215 App.B p. 14

school district.

32. Some school districts are

presently taxing at the maximum rate

allowed by law and have no means to

obtain more financial assistance.

33. Most of the children in the

Plaintiffs’ category do not pay any local

school or state taxes or tuition and,

therefore, their [482 F.Supp. 216]

education would be funded and paid for

by the resident taxpayers of the State

of Texas and the school district, in-

cluding some of the adults the children

live with in the school district.

34. The intrastate and interstate

transfers would, in all probability,

have a detrimental effect on the education-

al standards of the Defendant school

districts and the c...er school districts

in the State of Texas.

35. The children in this case live

482 F.Supp. 216 App.B p.15

with persons who could, in the absence

of notice to the contrary, consent to

medical treatment for the minor. See

Tex. Fam. Code Ann. §35.01(2) (Vernon 1975).

36. The statutory definition con-

tained in Section 21.031(d) was passed

to give administrators a statutory guide-

line to follow in determining a genuine

bona fide resident.

37. At least one of the legislative

purposes behind Section 21.031(d) was to

inhibit the migration of persons residing

in Mexico to attend schools in the United

States. See Pl. Exh. 6.

38. Between August 1, 1977, and

May 25, 1978, out of a total of fifty-

six minor United States citizens living

apart from their parents, legal guardian

or other person having lawful control

over them, who applied for admission to

the McAllen Independent School District,

482 F.Supp. 216 App.B p.16

fifty-one of these chiidren were admit-

ted.

39. In denying an earlier Motion

for a Preliminary Injunction, then-pre-

siding Judge Reynaldo Garza found that

the Defendant school districts had been

most liberal in finding that certain

children, like the Plaintiffs, are not

living away from their parents or re-

siding in the school districts for the

sole purpose of attending school. Judge

Garza further found that analysis of

the records submitted in this case con-

clusively showed that children living

within the school districts with some-

one cther than their parents or legal

guardians will be admitted to school

if any reason exists for such situation

other than solely attending school. This

Court has no reason to doubt the accuracy

of these findings and they are adopted

482 F.Supp. 216 App.B p.17

for purposes of this Opinion.

40. The parties have specifically

limited this case to the issue of the

facial constitutionality of Tex. Educ.

Code Ann. §21.031(d).

41. On October 26, 1979, it was

agreed in open court that the Plaintiffs’

Motion for a Preliminary Injunction would

be consolidated into a final hearing on

the merits, See generally Fed. R. Civ.

P. 65(a) (2).

42. In the event that any of the

foregoing findings of fact also constitute

conclusions of law, they are adopted as

such. In the event that any of the

following conclusions of law also con-

stitute findings of fact, they are adopted

as such.

CONCLUSIONS OF LAW

This case presents the very narrow

issue of whether Tex. Educ, Code Ann.

482 F.Supp. 216 App.B p.18

§21.031(d) is unconstitutional on its

face. Earlier in the case, Plaintiffs

specifically requested and were granted

permission to amend their complaint to

eliminate any contention that the statute

was unconstitutional as applied to them.

The minor Plaintiffs are United States

citizens residing within Texas and living

apart from their parents, legal guardian

or other person having lawful control over

them. These children desire to attend

public schools on a tuition-free basis.

The Defentant school districts have refused

to admit the children tuition-free,

having determined that the Plaintiffs are

living apart from their parents, legal

guardian or other person having lawful

control over them by court order for the

primary purpose of attending the free

public schools. See Tex. Educ. Code Ann,

§21.031(d) (Vernon Supp. 1978).

This Court first notes that as a

482 F.Supp. 216 App.B p.19

general rule the Constitution "does not

invalidate state legislation because it

fails to embody the highest wisdom or

provide the best conceivable remedies."

Cohen v. Beneficial Industrial Loan Co.,

337 U.S. 541, 550-51 (1949). This Court's

task is thus not to weigh a statute's

effectiveness but its constitutionality.

James v. Strange, 407 U.S. 128, 133 (1972)

(rational basis test applied). Further-

more, the fact that an inequitable [482

F.Supp. 217] result may be forthcoming

does not render a statute unconstitutional.

See Wickard v, Filburn, 317 U.S. 11ll, 129-

30 (1942).

As Plaintiffs candidly recognize,

any statute is the result of a legislative

choice that inevitably affects one group

differently from others and, therefore,

gives rise to claims of unequal treatment.

Whether such statute is enconetiteutions!

under the equal protection clause is

482 F.Supp. 217 App.B p.20

generally determined by the "rational

basis test"; that is, the statute is en-

titled to a presumption of validity and

will be upheld so long as it bears some

rational relationship to the achievement

of a legitimate purpose. San Antonio

School District v. Rodriguez, 41l U.S.

1, 40 (1973). On the other hand, if a

statute involves "suspect classifications"

or if it interferes with a fundamental

right explicitly or implicitly protected

by the Constitution, then the statute

must withstand "strict judicial scrutiny”.

It is not entitled to the usual presumption

of validity, and the statute must fail

unless it is necessary to promote a

compelling state interest. Id., at 16-17.

Plaintiffs rightfully do not contend that

the statute in question involves any

suspect classifications, as it applies

on its face to all students of whatever

482 F.Supp. 217 App.B p.2l

race, sex, or national origin.1/ Further,

this statute involves secondary education

and the Plaintiffs recognize that while

education is unquestionably vital, the

Supreme Court has held that it is not

among the rights afforded explicit or

implicit protection under the Constitution.

Id., at 35. In an effort to bring this

statute within the much stricter "compel-

1/ The United States Supreme Court has identified

numerous suspect classifications. For example,

racial classifications and classifications based

on alienage are deemed suspect and subject to

"strict scrutiny". See Graham v. Pichardson, 403

U.S. 365 (1971) (alienage); Loving v. Virginia, 388

U.S. 1 (1967) (race); McLaughlin v. Florida, 379

U.S. 184 (1964)(race). Although sexual classifi-

cations were held to be suspect in one case,

Frontiero v. Richardson, 411 U,S. 677 (1973),

recent cases evidence a retrenchment from this

position and the application by the Supreme Court

of an intermediate scrutiny. See Orr v, Orr, 440

U.S. 268, 278-79 (1979).

482 F.Supp. 217 App.B p.22

ling interest” test, Plaintiffs allege

that the statute improperly burdens their

fundamental constitutional right to travel,

and they thereby seek relief under the

umbrella of such decisions as Shapiro

v. Thompson, 394 U.S. 618 (1969) and

Memorial Hospital v. Maricopa County,

415 U.S. 250 (1974).

. Shapiro, supra, affirmed lower court

decisions declaring unconstitutional

those statutes denying welfare assistance

to residents of a state who had not

resided within their jurisdiction for

at least one year immediately preceding

the application for assistance. The

Court found that the statutes penalized

the exercising of a constitutional right

to interstate travel and therefore failed

because they were not necessary to promote

a compelling state interest. Memorial

Hospital, supra, announced a similar

482 F.Supp. 217 App.B p.23

result with respect to a statute requiring

a one-year's residence as a condition to

receiving non-emergency hospital or

medical care at county expense. There

is a fundamental and critical difference,

however, between the statutes involved

in those cases and the statute before this

Court. The Supreme Court has made it

crystal clear that the defect in the

Shapiro and Memorial Hospital statutes

was not that they had residency require-

ments but that they had durational resi-

dency requirements.

In Shapiro, supra, the Court clearly

noted that residency and one-year residency

were two separate and distinct prerequisites

for welfare assistance. 394 U.S. at 636.

Later, in Dunn v. Blumstein, 405 U.S. 330

(1972), a case concerning a durational

residency requirements for voting, the

Court again applied the compelling interest

482 F.Supp. 217 App.B p.24

rule. However, the Court made it clear

that the challenge was not directed at

the requirement of residency but rather

at the requirement of durational [482 F.

Supp. 218] residency. "We emphasize

again the diference between bona fide

residence requirements and durational

residence requirements." 405 U.S. at

343. This distinction was more clearly

defined in Memorial Hospital, supra, where

the Court reemphasized that the consti-

tutional right to interstate travel did

not mean merely the right to be in motion

but rather the right to migrate, resettle,

and start a new life. 415 U.S. at 255.

The Court concluded that while every

bona fide residence requirement would

necessarily burden a simple right to

move from one location to another, it

was only a durational residency require-

ment that impermissibly burdened the

constitutional right "to migrate, ‘with

482 F.Supp. 218 App.B p.25

intent to settle and abide!" Id. More

recently, in McCarthy v. Philadelphia

Civil Service Commission, 424 U.S. 645

(1976), the Court repeated that: "We

have previously differentiated between

a requirement of continuing residency

ent a requirement of prior residency of

a given duration." 424 U.S. at 647.

The Fifth Circuit Court of Appeals

has also recognized this distinction in

upholding an ordinance requiring all

municipal employees to maintain their

domicile and principal place of residence

within the corporate limits of the city

during the period of their employment.

Wright v. City of Jackson, 506 F.2d 900

(5th Cir. 1975). Noting that there is

no fundamental constitutional "right to

commute", the Fifth Circuit held that a

bona fide continual residency requirement

is not to be tested by the strict compelling

482 F.Supp. 218 App. B_ p.26

purpose standard but rather by the tra-~-

dictional rational basis test. Similar-

ly, in Andre v. Board of Trustees of

Village of Maywood, 561 F.2d 48 (7th

Cir. 1977), cert. denied, 434 U.S. 1013

(1978), the court noted:

"All residency restrictions have

an effect on the right to inter-

state travel, but only those re-

sidency restrictions which can be

characterized as 'durational' have

been found to unconstitutionally

impinge or penalize the right to

travel, in the absence of some

compelling state interest. Dur-

ational residency requirements

-lassify residents into groups

of residents who have fulfilled

the residency requirements and

those who have not...Bona fide

residency requirements as cont-

inuing conditions of municipal em-

ployment rest upon footings sig-

nificantly different from those

of durational residency require-

ments.” 561 F.2d at 52.

In the instant case, the Texas statute

only attempts to articulate a residency

definition and in no way contains a dur-

ational residency requirement. The Court,

therefore, concludes that the statute

482 F.Supp. 218 App. B p.27

does not burden the constitutional right

to travel and thus must be examined under

the rational basis test. 2/

2/ Even if a durational residency requirement were

involved in this case, it would not automatically

be considered an unconstitutional penalty on the

right to interstate travel. In Shapiro, supra, t‘ie

Court expressly reserved decision as to whether

a durational residency requirement for "tuition

free education" would be unconstitutional. 394

U.S. at 638 fn. 21. In Memorial Hospital, supra,

the Court reiterated that, depending upon what

right is affected, some waiting periods may not

be penalties, 415 U.S. at 258-59. In Vlandis v.

Kline, 412 U.S, 441, 452-53 (1973), the Court

specifically declined to hold that a state could not

impose a "reasonable durational residency require-

ment" as one element in demonstrating bona fide

residence for purposes of lower tuition and fees.

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

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

court upheld a university regulation providing that

no student could qualify as a resident for tuition

purposes unless he had been a bona fide domiciliary

of the State for at least one year, and this decision

was affirmed by the Supreme Court. In Sosna v.

Iowa, 419 U.S, 339 (1975), the Court upheld a one

year durational residency requirement for obtaining

a divorce.

482 F.Supp. 218 App. B p.28

Before analyzing whether or not the

statute can pass this test, however, the

Court will next consider Plaintiffs'

second basic point of attack.

Plaintiffs contend that the statute

violates both the due process and equal

[482 F.Supp. 219] protection clauses of

the Fourteenth Amendment because its

definition of residency creates "an in-

valid irrebuttable presumption of non-

residency".3/ This contention is essen-

tially grounded on two key cases, Carring-

ton v. Rash, 380 U.S, 89 (1965) and Vlandis

v. Klein, 412 U.S. 441 (1973). In

Carrington,the Court was concerned with the

provision of the Texas Constitution that

prohibited any member of the armed forces

of the United States who moved his home

3/ Plaintiffs' First Amended Complaint Para. 21b.

482 F.Supp. 219 App. B p.29

to Texas during the course of his

military duty from ever voting in a Texas

election “so long as he or she is a member

of the Armed Forces". The Court held that

this provision violated the equal protect-

ion clause of the Fourteenth Amendment,

In that case, however, it was undisputed

that the petitioner had been domiciled in

Texas and that “he intend[ed] to make his

home there permanently", 380 U.S. at 91,

The Court stressed that Texas had the

right to require all military persons to

be bona fide residents of the community

before they were entitled to vote but con-

cluded that if the military personnel were

“in fact residents, with the intention of

making Texas their home indefinitely",

then they had the right to be treated the

same as other Texas residents, Id, at 93-

94.

In YViandis, the Court considered a

482 F.Supp. 219 App. B_ p.30

Connecticut statute which attempted to

define residents and non-residents for

purpose of paying higher tuition at

state universities. Under the statutory

scheme, once a student was classified as

a "non-resident", his status was permanent

and irrebuttable during the entire time

that he remained at the university, re-

gardless of the particular fact situation

of any given student. The Court held that

this statute was a violation of the con-

stitutional right to due process. In so

doing, however, the Court was careful to

observe that it was not questioning the

segregation of students into resident and

non-resident categories nor the charging

of higher fees to the latter group. The

narrow holding in Vlandis, therefore, was

simply that a permanent irrebuttable pre-

sumption of non-residence violated the

due process clause.

482 F.Supp. 219 App. B p.3l

The Court cannot agree that the sta-

tute involved here creates an irrebuttable

presumption of the type condemned by

Vlandis. The challenged portion of the

statute provides, in essence, that if a

student under the age of eighteen years

is living apart from his parent, guardian,

or other person having lewful control of

him under court order, then in order to

establish residency for purposes of atten-

ding free public schools, that student

must establish that his presence in the

school district is “not for the primary

purpose of attending the public free

schools". Thus, unlike statutes "hich

set forth objective criteria for residency

such as length of time or a negative cat-

egory (such as "member of the Armed Forces"),

this statute codifies the ultimate univer-

sal test of residency, namely subjective

intent. Of course, there is a certain

482 F.Supp. 219 App. B_ p.32

superficial logic to the argument that

the statutory definition is "“irrebuttable"

because as long as the minor student ad-

mits that he is living apart from his

parent or guardian for the sole purpose

of attending free public schools ina

particular district, then he can never

be classified as a resident, On the other

hand, however, by using the definition of

residency almost universally accepted in

school cases, the statutory criteria in

one sense merely states a truism, namely

that a person who only intends to remain

in a given place temporarily in order to

take advantage of a particular benefit at

that location necessarily lacks the perm-

anence to be classified as a resident,

Thus, in Vlandis, supra, the Supreme

Court said:

"The State can establish such

reasonable criteria for in-state

status as to make virtually certain

that students who are not, in fact,

482 F.Supp. 219 App. B_ p.33

bona fide residents of the

State, but who have come

there solely for educational

purposes, cannot take advant-

age of the in-state rates,”

412 U.S. at 453-4 (emphasis

supplied).

[482 F.Supp. 220]

In Spriggs v. Altheimer, Arkansas School

District Number Twenty-Two, 385 F.2d 254

(8th Cir. 1967), the minor school child-

ren had been charged tuition because they

were living with their grandfather rather

than with their mother who lived in an-

other school district. The Eighth Cir-

cuit remanded the case to the district

court to make a factual determination as

to the residency of the children for pur-

poses of the Arkansas statute which pro-

vided free public schools to all persons

"residing" in the district. The trial

court was instructed to hear further evi-

dence on the question but the following

guideline was given:

"On the other hand, if the

482 F.Supp. 219 App. B p,34

residency of the children with

their grandfather is only tem-

porary for the primary purpose

of attending school in a dist-

rict other than where their

parents reside, then tuition

under the statutes would be

proper." 385 F.2d at 259.

In Clarke v. Redeker, 259 F. Supp. 117

(S.D. Iowa 1966) (three judge court), re-

gulations classifying residents and non-

residents for tuition purposes at the

State University of Iowa were upheld as

being constitutionally valid on their

face. Among other things, these regula-

tions defined a bona fide resident to mean

a student who is “not in the state prim-

arily to attend a college", 259 F, Supp.

at 121. In Kelm v, Carson, 473 F,2d 1267

(6th Cir. 1973), the Court noted that

where a statute and regulation “seek to

distinguish between temporary sojourners

in Ohio who reside there only for school

purposes and Ohio residents, the intention

of the party and what he has done to evid-

482 F.Supp. 220 App. B_ p.35

ence that intent becomes critical." Id,

at 1271. Presence in a school district

for the primary purpose of attending

school was also held insufficient "res-

idency" for tuition purposes in Mansfield

Township Board of Education v, State Board

of Education, 129 A. 765 (N.J. Sup. Ct.

1925) and Mt. Hope School Dist. v. Hend-

rickson, 197 N.W.47 (Iowa Sup. Ct, 1924).

In the instant case, Plaintiffs at-

tack the statute only on its face but it

is interesting to note that at least as

applied within the Defendant school dist-

ricts, the statute can hardly be called

irrebuttable in actual practice. Indeed,

the stipulated evidence clearly shows

that between approximately August 1, 1977,

and May 25, 1978, the McAllen Independent

School District had only 56 applications

from students who were United States cit-

izens and covered by §21.031(d) and, of

482 F.Supp. 220 App. B_ p,36

that number, all but five were enrolled

in school. See Finding of Fact No. 38.

The evidence indicated that students

living apart from their parent or guardian

because of physical health or emotional

well-being, broken homes, health reasons,

etc., are all allowed to qualify for

free public schools. Thus, if the stat-

ute in question contains even an indirect

presumption of non-residency, certainly

the presumption is rebuttable in practice,

See Michelson v. Cox, 476 F. Supp. 1350

(S.D. Iowa 1979). Even if a child were

to originally move into the school dist-

rict for the primary purpose of attending

school, there is nothing on the face of

the statute nor apparently in actual pra-

ctice, to prohibit the child from being

reclassified as a resident if in fact his

circumstances--specifically his primary

motive for being in the district--would

482 F.Supp. 220 App. B_ p.37

change from one school semester to another.

In summary, therefore, the only students

to whom the statutory definition of non-

residency is in any sense irrebuttable are

those students who persist in declaring

that their primary purpose for being

present in the school district is to

attend the public free schools. Because

such a declaration would ipso facto place

the student within the classic legal def-

inition of a non-resident, the Covrt con-

cludes that it does no violence to the

Constitution.

Plaintiffs further suggest, however,

that the statute is discriminatory because

only one category of students must defend

its motives. In other words, a literal

reading of Section 21.031(d), reflects

that if a student under the age of eighteen

years is living with his parents, legal

guardian, or some person having lawful con-

482 F.Supp. 220 App. B_ p.38

trol of him under court order, then that

student's purpose for being in the school

district is unquestioned. It is only

when a person under the age of eighteen

years is living apart from a parent or

guardian or other person [482 F. Supp. 221]

having lawful control that he must est-

ablish the proper motive for being in the

district. In resolving this contention,

it is again necessary to recall the Court's

earlier conclusion that this statute must

only pass the rational basis test.

As stated in Dandridge v. Williams,

397 U.S. 471 (1970):

"In the area of economics and

social welfare, a State does not

violate the Equal Protection

Clause merely because the class-

ifications made by its laws are

imperfect. If the classification

has some ‘reasonable basis’, it

does not offend the Constitution

simply because the classification

‘is not made with mathematical

nicety or because in practice it

results in some inequality.’

pindstey v. Natural Carbonic Gas

CO., U.S. 61, 78, 'The °

482 F.Supp. 221 App. B_ p.39

problems of government are

practical ones and may justify,

if they do not require, rough

accomodations - illogical, it

may be, and unscientific.’

Metropolis Theater Co. v. City

Of Chicago, 228 U.S. 61, 69-70.

YA statutory discrimination will

not be set aside if any state of

facts reasonably may be conceived

to justify it.' McGowan v. Mary-

land, 366 U.S. 420, 426." 3957

U.S. at 485.

The Court concludes that in the present

statutory scheme, there is some reason-

able basis for separately classifying

minor school children living apart from

their parents, guardian or other person

having custody under court order. Section

21.031(d) attempts to define "residence"

for this one class of students. The

word "residence" has many meanings in the

law, largely determined by the statutory

context in which it is used. Kelm v, Carl-

son, 473 F. 2d 1267, 1271 (6th Cir, 1973),

Within the context of §21.031(d), residence

means something more than mere physical

482 F.Supp. 221 App. B_ p.40

presence and thus is more closely re-

lated to the concept of domicile. See

DeLeon v. Harlingen Consolidated Independ-

ent School District, 552 S.W.2d 922, 924

(Tex. Civ. App. - Corpus Christi 1977, no

writ). The cases discussing the domicile

of a minor are, therefore, extremely

helpful in evaluating the reasonableness

of this legislative classification. Under

Texas common law, a minor is “not sui juris,

and can neither select nor change its

domicile, which is fixed by law as that

of its father.” Smith v. Ansley, 257 S.W.

2d 156, 157 (Tex. Civ. App. - Waco 1953,

writ ref'd n.r.e.); see Bradshaw v. Pea-

cock, 194 S.W.2d 551, 554 (Tex. Sup. Ct,

1946); Mills v. Howard, 228 S,W,2d 906,

907 (Tex. Civ. App. - Amarillo 1950, no

writ); see generally Restatement of CGon-

flicts of Law §11 (1934). This notion

rests in large measure upon the minor's

482 F.Supp. 221 App. B p.4l1

presumed lack of capacity to form the

requisite intention necessary to establish

a separate domicile. Deterly v. Wells,

53 S.W.2d 847, 848 (Tex. Civ. App. - Dal-

las 1932, writ ref'd). Indeed, the com-

mon law presumption is so strong that

even when a child is abandoned by both

parents, he still cannot acquire his own

domicile. See generally Restatement of

Conflicts of Law §34 (1934) (where a child

is abandoned by both parents it takes its

father's domicile at the time of the

abandonment). Since the child's ability

in Texas to acquire his own separate re-

sidence is a matter of legislative grace4

4/ In the relatively new Texas Family Code, the

Texas Legislature both codified and modified the

common law in certain respects. For example, like

the common law, a child's domicile is expressly

defined as that of his parent. Texas Fam. Code Ann.

8 12.04(Vernon Supp. 1978). Likewise if a managing

conservator is appointed, tis domicile establishes

that of the child. Id. § 14.02. On the other hand,

for venue purposes, while a child is deemed to (cont.)

482 F.Supp. 221 App. B p.42

it is certainly not unreasonadie to re-

guire that *is presence in another school

district be for some cogent reason other

than attending free [482 F.Supp. 222]

public school in that district before

qualifying for tuition-free status. See

DeLeon v. Harlingen Consolidated Independ-

ent School District, supra, at 924,

‘Having concluded that Section 21,031

(d) does not create an invalid irrebutt-

able presumption against residency and

having further concluded that there is

some rational basis for defining the re-

4/ (cont.) reside with its parents, guardian,

manager conservator or other in lawful control,

if it is found that the child is not under the

care and control of any adult, then he resides

where he is found. Id. g 11.04(c)(6). Thus

"residence" is defined differently for venue

purposes than for tuition-free purposes but these

classifications are more properly left to the

Legislature, and the courts will not interfere

with its judgment unless the classification is

patently unreasonable. See P. 221 supra.

482 F.Supp. 222 App. B p,43

sidency of minors living apart from a

parent or guardian or other person in law-

ful control under court order, the only

remaining question would be whether there

is a rational basis for the statutory

scheme which denies free public education

to those who cannot meet the statutory

definition of residency. Actually, Plain-

tiffs do not seriously challenge this as-

pect of the statute. A state has a leg-

itimate interest in protecting and pres-

erving the quality of its educational sy-

stem and the right of its own bona fide

residents to attend state schools on a

preferred tuition basis. Vlandis v, Klein,

Supra, at Page 452-453, Similarly, the

state would have an interest in preserving

the financial integrity of the various com-

ponents of the state educational system,

i.e., the individual school districts.

East Texas Guidance and Achievement Center,

482 F.Supp. 222 App. B p.44

Inc. v. Brockette, 431 F. Supp. 231, 236

(E.D. Tex. 1977). It must also be remem-

bered that although the Plaintiffs in this

case have concentrated their focus on

children of United States citizens re-

siding in Mexico, nevertheless the statute

on its face would also apply to children

of parents living anywhere in Texas or in

any of the United States. Since the

statute applies to any minor student

living apart from his parents, guardian

or other person with lawful control, it

even applies to attempted transfers bet-

ween different schools districts within

the same county>/ The Court is satisfied

5/ Since the statute is being attacked on its face,

the fact that the statute facially applies to

intra-state as well as inter-state movement, and

indeed even to international movement, poses an

additional barrier to Plaintiffs. Courts are re-

luctant to strike down a statute which can validly

be applied to a number of situations. Arbeitman

v. District Court, 522 F.2d.1031, 1034 (2d Cir. 1975).

482 F.Supp. 222 App. B p. 45

that these kinds of transfers, free of

all tuition, would cause budgetary and

administrative planning problems suf-

ficient to justify the tuition scheme

of the statute. As stated in DeLeon v.

Harlingen Consolidated independent School

District, supra:

"The variability of student

population is a serious im-

pediment to the effective

planning of virtually all

phases of the educational

process, There is no just-

ification for a requirement

that a school system educate

in tuition-free manner those

children whose only indicia

of residence is mere presence

within the district, accomp-

anied by the student's desire

(or that of his parents) to

5/ (cont.) There is some question as to the existence

of a constitutional right to intra-state travel

and certainly as to whether infringement of such a

right would have to pass the "compelling interest"

test. Wright v. City of Jackson, 506 F.2d at 902;

Wardwell v. Board of Education, 529 F.2d 625, 627

(6th Cir. 1976); Brown v. New Haven Civil Service

Board, 474 F.Supp. 1256, 1264 (D.Conn. 1979). With

respect to international travel, see Califano v.

Aznavorian, 439 U.S. 170 (1978).

482 F.Supp. 222 App. B p,.46

attend school therein, It

is reasonable to draw the

line of residency, at least

for school admission purposes,

between those who come within

a school district because they

had to move into the district

for some valid reason other

than for educational purposes,

and those who have come there

for the sole purpose of getting

tuition-free education within

the district. There is no

reason to add to the burdens of

a school district by freely ad-

mitting to its schools anyone

who has previously resided out-

side the district simply because

they wanted to attend the schools

in the district." 552 S.W.2d at

925.

In conclusion, the Court finds that

Section 21.031(d) is a constitutional

enactment of the Texas Legislature, in

that it violates neither the equal pro-

tection clause nor the due process clause

of the Fourteenth Amendment. This does

not mean that the statute is perfect or

that the Legislature could not have found

a more precise or more equitable way to

draw lines between resident and non-resi-

dent students. The Court simply concludes

482 F.Supp. 222 App. B_ p.47

that the statute as drawn is not uncon-

stitutional. Accordingly, final judgment

will be entered for Defendants.

DONE at Laredo, Texas, this 19th

day of December, 1979.

/s/ George P. Kazen

United States District

Judge

Appendix C p. l

TEXAS EDUCATION CODE ANN. tit. 2

§21.031 (Vernon Supp. 1980)

§21.031 ADMISSION

(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 scholas-

tic year shall be ~—e 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 Septem-

ber of the year to 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

Appendix C p. 2

control of him resides at the time he

applies for admission.

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 aiiens

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.

(d) In order for a person under the

age of 18 years to establish a residence

for the purpose of attending the public

free schools separate and apart from his

parent, guardian, or other person having

lawful control of him under an order of

a court, it must be established that his

presence in the school district is not

Appendix C P. 3

for the primary purpose of attending the

public free schools. The board of trustees

shall be responsible for determining

whether an applicant for admission is a

resident of the school district for

purposes of attending the public schools.

(e) A child placed in foster care

by an agency of the state or a political

subdivision shall be permitted to attend

the public free schools in the district

in which the foster parents reside free

of any charge to the faoster parents or

the agency. No durational residence re-

quirement may be used to prohibit such

a child from fully participating in any

activity sponsored by the school district,

Amended by Acts 1975, 64th Leg., p,896,

ch. 334, §4, eff. Sept. 1, 1975; Acts

1977, 65th Leg., p. 1012, ch. 376, §1,

eff. Aug. 29, 1977; Acts 1979, 66th Leg.,

p. 1125, ch. 537, §1, eff. June ll, 1979.

xpuaddy of

§ Office - Supreme Court, U.S.

FILED

AUG 25 4982

No. 81-857 ALEXANDER L. STEVAS.

——

IN THE

Supreme Court of the United States

OCTOBER TERY. 1981

ORALIA MARTINEZ, as next friend

for RopeERTO MORALES

Petitioners,

M. L. BrockeTTE, as TEXAS COMMISSIONER OF EDUCATION;

The Texas EpuCATION AGENCY;

The McALLEN INDEPENVENT SCHOOL DISTRICT; and

RopNney CATHEY, as Superintendent of McAllen

Independent School District

Respondents.

On Writ Of Certiorari To

The Fifth Circuit Court Of Appeals

JOINT APPENDIX

James A. ERRMANN Travis HEIsTER

Texas Rurat Lecar Atias & Haut

Alp, Inc. Drawer 3725

Farm Worker Division McAllen, Texas 78501

305 E. Jackson, Suite 206 Counsel for Respondents

Harlingen, Texas 78550 Cathey and McAllen 1.S.D.

Epwarp J. TUDDENHAM Mark White

Texas Rurat Lecar ATrorNEY GENERAL oF TEXAS

Alp, Inc. P.O. Box 12548

Farm Worker Division Capitol Station

P.O. Box 2223 Austin, Texas 78711

Hereford, Texas 79045 Counsel for Respondents Brockette

Counsel for Petitioners and Texas Education Agency

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

Petition For Certiorari Filed November 7, 1981

Certiorari Granted Jur 2 21, 1982

TABLE OF CONTENTS

Page

SLEV AST EROUUNT TMTROUR. «a occ ccccccccscceecees la

PLAINTIFFS AMENDED COMPLAINT ...........--ee0e05 Da

ANSWER OF DEFENDANTS Mission, MCALLEN, PHARR-SAN

JUAN-ALAMO INDEPENDENT SCHOOL Districts .... 10a

ORDER DENYING PRELIMINARY INJUNCTION FILED AUGUST

I ee ba he eae eee a ee eS 19a

FINDINGS OF FACT AND CoNcLuUsions oF LAW or District

Court FiLrep Decemper 19, 1979 ............... Pla

JUDGMENT FILED December 19, 1979 ................ da

OPINION OF THE Fretu Circurr Court or Apreats, JUNE

Rar Laelia aaibiae a drewalk Guede a

EXHIBITS FROM TRIAL OF ARREDONDO V. BROCK-

ETTE

PLAINTIFFS EXHIBIT 1

Plaintiffs Stipulated Testimony ................... Dba

PLAINTIFFS EXHIBIT 2

Letter to Mr. and Mrs. Felipe Martinez from Rodney

Cathey dated February 28, 1978 ................ dTa

PLAINTIFFS EXHIBIT 6

Texas Senate Education Committee Meeting Hearing

on House Bill 247 March 25, 1977 ............... Dsa

PLAINTIFFS EXHIBIT 7

Summary of McAllen School Reports .............. bla

DEFENDANTS EXHIBIT 1

Stipulations Concerning Defendants Testimony .... 63a

DEFENDANTS EXHIBIT 2

Testimony Before Texas House Committee On Public

Education on House Bill 247 March &, 1977 ...... Oa

DEFENDANTS EXHIBIT 3

Mevican Immigrant-Alien Student Study 1975-1936

by Jim B. Hensley (selected portions) ........... Ta

ATTORNEY GENERAL OPINIONS

Dated July 12, 1973 and January 10, 1940 [These Opin-

ions are reprinted in full in Defendants Reply to

Petition for Writ of Certiorari at A-1 and A-7]

Date

12/16/77

8/23/75

8/25/78

9/28/79

10/26/79

RELEVANT DOCKET ENTRIES

DISTRICT COURT

ARREDONDO V. BROCKETTE, B-77-2%

NR.

PROCEEDING

Original complaint filed

(Reynaldo G. Garza, District Judge) Hear-

ing on Preliminary Injunction Held (Hear-

ings in Chambers)

(Reynaldo G. Garza, District Judge) Order

signed and entered. Ordered that Plain-

tiffs Motion For Preliminary Injunction B

In all things denied

First Amended Complaint filed

HEARING HELD on Motion for Prelimi-

nary Injunction'George P. Kazen, Dis-

trict Judge Vela ... Motion to Dismiss

Defendant Mission I.8.D. and Defendant

Kenneth White GRANTED. Motion to

dismiss Harlingen 1.S8.D. and Dan Ives as

defendants. GRANTED. Motion to Con-

solidate with trial in Chief GRANTED.

Plaintiffs’ Exhibits 1 through 7 marked,

offered and admitted. Defendants’ Ex-

hibits 1 through 4 marked, offered and

admitted. (Clerk to mark 938 reports of

McAllen [.8.D. as a whole package as

Plaintiffs’ exhibit No. 8). Oral arguments

by Plaintiffs and Defendants heard. Re-

buttal by each side. Hearing concluded at

12:35 p.m. Matter submitted. Parties to

file briefs. Plaintiffs and Defendants Ex-

hibits lists filed.

12/19/79

1/3/80

1/10/80

139

140

141

145

(George P. Kazen, District Judge) FIND-

INGS OF FACT AND CONCLUSIONS

OF LAW filed.

(George P. Kazen, District Judge) FINAL

JUDGMENT signed ané filed,

ORDERED that final judgment be en-

tered in favor of the Defendants and that

Plaintiffs’ claim is DISMISSED.

Plaintiff NOTICE OF APPEAL from final

judgment entered 12/19/79. Filed.

(George P. Kazen, District Judge)

ORDER, filed.

1. Plaintiff Application for Injunction

pending appeal—GRANTED as to

Plaintiff Roberto Morales and DE-

NIED as to Plaintiff Rita Gomez.

2. ORDERED that Defendant McAllen

1.S.D. is restrained from refusing to

permit Plaintiff Morales to attend

McAllen I.8.D.; previded that Plain-

tiff give security in the sum of

$1,224.00 and provided further that

Plaintiff must increase the security of

bond by an amount equal to the tui-

tion charged for each quarter semes-

ter as in which Plaintiff continues to

attend after the second quarter of the

school year 1979-1980.

FIFTH CIRCUIT COURT OF APPEALS

ARREDONDO V. BROCKETTE, 80-1031

1/10/80

6/19/81

8/13/81

Appeal Docketed No. 80-1031

Opinion Rendered

Order Denying Rehearing and Rehearing

En Bane

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

C.A. No. B-77-296

Maria ARREDONDO as next friend for ANDRES Lorez, Jesus

CARRILLO as next friend for Fine, ALVAREsS, Mrs. ARTINO

GARZA as next friend for DoLoRES MICHELLE Ropricuez, ORA.

LIA MARTINEZ as next friend for DELIA and Roperto MorALEs,

FLoRA FALCON as next friend for Rita Gomez, ANTONIO

GUTIERREZ as next friend for SILVESTRE MARQUEZ Lopez and

VicTtorRIA MARTINEZ as next friend for MARTA GUTIERREZ-

GONZALEZ,

Plaintiffs

M. L. Brocketre, Commissioner of Education in his official .

capacity, The Texas EpucaTION AGENCY, PHARR-SAN JUAN-

ALAMO INDEPENDENT SCHOOL District, MCALLEN IN.

DEPENDENT SCHOOL District, Mission INDEPENDENT SCHOOL

District, HARLINGEN INDEPENDENT ScHooL District, and

ArTURO GUERRA, RopNEY CATHEY, KENNETH WHITE, and DAN

Ives, individually and in their official capacities,

Defendants

FIRST AMENDED COMPLAINT

FILED

SEP 28 1979

INTRODUCTION

1. Plaintiffs in this action are United States citizens who

have been denied free admission to public school in the State of

Texas in violation of the 14th Amendmeni. Plaintiffs seek a

declaration that Texas Education Code § 21.031(d) is unconsti-

tutional on its face, an injunction, and restitution.

JURISDICTION

2. This Court has jurisdiction pursuant to 28 U.S.C.

§§ 1331 and 1343(3) and (4). The amount in controversy ex-

ceeds $10,000 exclusive of costs.

PLAINTIFFS

3. Plaintiff ANDRES LOPEZ is a United States citizen

and a resident of Pharr, Texas. As a minor child he brings this

suit through his next friend and grandmother Maria Arredon-

do with whom he lives in Pharr, Texas.

4. Plaintiff FIDEL ALVARES is a United States citizen

and a resident of McAilen, Texas. As a minor child he brings

this suit through his next friend Jesus Carrillo with whom he

lives in McAllen, Texas.

5. Plaintiff DOLORES MICHELLE RODRIGUEZ is a

United States citizen and a resident of Mission, Texas. As a

minor child she brings this suit through her next friend and

aunt Mrs. Artino Garza with whom she lives in Mission, Texas.

6. Plaintiffs DELIA and ROBERTO MORALES are

United States citizens anu residents of McAllen, Texas. As

minor children they bring this suit through their next friend

and sister Oralia Martinez with whom they live in McAilen,

Texas.

7. Plaintiff RITA GOMEZ is a United States citizen and a

resident of Pharr, Texas. As a minor child she brings this suit

through her next friend and sister Flora Faleon with whom she

lives in Pharr, Texas.

8. Plaintiff Silvestre Marquez Lopez is a United States

citizen and a resident of Harlingen, Texas. As a minor child he

brings this suit through his next friend and godfather Antonio

Gutierrez with whom he lives in Harlingen, Texas.

9. Plaintiff MARTA GUTIERREZ-GONZALEZ is a

United States citizen and resident of Harlingen, Texas. As a

minor child she brings this suit through her next friend and

aunt Victoria Martinez with whom she lives in Harlingen,

Texas.

DEFENDANTS

10. Defendant TEXAS EDUCATION AGENCY

(hereinafter TEA) is an administrative agency of the State of

Texas. Its chief executive official is Defendant Dr. M. L.

BROCKETTE, Commissioner of Education. TEA is responsi-

ble for the disbursement of the Available School Fund which

pays the cost of providing free public education in Texas school

districts.

11. The Defendants MCALLEN, MISSION, PHARR-

SAN JUAN-ALAMO and HARLINGEN INDEPENDENT

SCHOOL DISTRICTS provide free public education to eligi-

ble residents in their districts with funds from the Available

School Fund administered by TEA.

12. Defendants ARTURO GUERRA, RODNEY

CATHEY, KENNETH WHITE, and DAN IVES are the

Superintendents of the PHARR-SAN JUAN-ALAMO,

MUALLEN, MISSION, and HARLINGEN Independent

School Districts respectively. They are sued in their individual

and official capacities.

FACTS

13. Each of the Plaintiffs is a resident of a Texas School

District and lives with an adult who is not the child’s parent or

legal guardian.

14. In the fall of 1977 Plaintiffs LOPEZ, ALVARES,

RODRIGUEZ, and MORALES applied for tuition free admis-

sion to the public school in the district in which each resided.

15. Each of the Defendant School Districts denied these

Plaintiffs free admission to the public schools pursuant to Tex.

Ed. Code § 21.031(d) because they were in the Defendant

school districts for the purpose of attending school.

16. On November 16, 1978 Oralia Martinez as next friend

for her brother ROBERTO MORALES paid $376.00 in tuition

money to McAllen I.S8.D. in order to enroll Roberto in that

district for the second quarter of 1978-1979.

17. By letter of March 9, 1979, Defendant McAllen L.S.D.

advised Plaintiff Roberto Morales’ attorney that tuition for the

third quarter of 1978-1979 was due and owing. That bill was for

$376.00.

18. Plaintiffs Silvestre Marquez Lopez and Marta

Gutierrez-Gonzalez applied for admission to the Harlingen

I.S.D. in August, 1979. Defendant Harlingen I.S.D. denied

them admission pursuant to Tex. Ed. Code § 21.031(d) because

they were in the school district for the primary purpose of

attending school.

19. Plaintiff RITA GOMEZ applied for admission to the

Pharr-San Juan-Alamo I.S.D. in August, 1979. She was admit-

ted to school, but, pursuant to Tex. Ed. Code § 21.031(d), only

on the condition her sister obtain guardianship over her and

only after an attorney informed the school guardianship was

being sought.

20. None of the adults with whom Plaintiffs reside can

afford to, or desire to obtain legal guardianship over the chil-

dren in their care.

CAUSE OF ACTION

21. Defendants have violated Plaintiffs rights to due proc-

ess, equal protection, and the privileges and immunities of

citizenship by refusing Plaintiffs admission to school pursuant

to Tex. Ed. Code § 21.031(d) which is an unconstitutional stat-

ute in that: |

a. By burdening the right to travel freely among the

states it violates the privileges and immunities clause

of the Constitution and the 4th Amendment.

b. By defining residency for school purposes in terms of

purpose for residency it creates an invalid irrebutt-

able presumption of non-residency which violates the

due process and equal protection clauses of the 14th

Amendment.

22. Plaintiffs are entitled to redress for these violations

under 42 U.S.C. § 1983.

INJUNCTIVE RELIEF

23. Plaintiffs are suffering and will continue to suffer im-

mediate and irreparable harm if they continue to be excluded

from school pursuant to Tex. Ed. Code § 21.031(d). They have

no adequate remedy at law.

PRAYER

WHEREFORE, Plaintiffs pray that this Court:

1. Enter a Declaratory Judgment that Tex. Ed. Code

§ 21.031(¢) violates the due process, equal protection, and

privileges and immunities clauses of the 14th Amendment in

that it infringes on the right to travel among the states and

creates an invalid irrebuttable presumption of non-residency.

2. Entera preliminary and permanent injunction enjoining

Defendants from denying Plaintiffs admission to school pur-

suant to Tex. Ed. Code § 21.031(d).

3. Grant Plaintiff Roberto Morales restitution in the

amount of $376.00 plus interest for the tuition money paid by

him to McAllen Independent School District, and declare that

the tuition bill of March 9, 1979 is not a void debt.

4. Award Plaintiffs costs and reasonable attorneys fees.

5. Grant such other relief as this Court deems just and

proper.

Respectfuliy submitted,

/s’)’ Edward Tuddenham

Epwarp TuppeNHaM

Texas Rurat Lecar Aw, Ine.

P.O. Box 2223

1406 W. Hwy. 60

Hereford, Texas 79045

(S06) 364-5961

OF COUNSEL:

s itlDavid Horton

Davip Horton

TimoTeo E. Gomez

TEXAS RurRAL LeGAL Arp, INc.

Samane Security Bldg., 5th Floor

1154 E. Elizabeth Street, Rm. 501

Brownsville, Texas 78520

(512) 546-5558

Local Counsel

James Herrmann

Texas Rurat Lecar Aw, Inc.

305 E. Jackson, Suite 206

Harlingen, Texas 78550

(512) 423-3111

GEORGE POWELL

TEXAS Rurat Lecar Ap, Inc.

216 N. Closner

Edinburg, Texas 78539

(512) 383-5673

CERTIFICATION PURSUANT

TO LOCAL RULE 16(H)

I, David Horton, Local Counsel for Plaintiffs, spoke

personally with Mr. Gregg Wilson, who stated he would

oppose this motion; Mr. Neal King, who stated that he would

not oppose this motion; Mr. Travis Hiester, who stated that he

would oppose; and Mr. Mario Ramirez, who stated he would

not oppose this motion.

Dated: 9/21/79, 1979.

/s) D Horton

Davip Horton

10a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

Civil Action No. B-77-296

MARIA ARREDOND®, as next friend for ANDRES Lopez, ef al

Plaintiffs

M. L. Brocketre, Commissioner of Education in his official

capacity, et al,

Defendants

FILED

Jan 24 1978

ANSWER OF DEFENDANTS,

MISSION INDEPENDENT SCHOOL DISTRICT, MCALLEN

INDEPENDENT SCHOOL DISTRICT, PHARR-SAN

JUAN-ALAMO INDEPENDENT SCHOOL DISTRICT, AND

DR. KENNETH WHITE, RAFAEL CANTU, RODNEY

CATHEY, RICARDO R. CHAPA, AGUSTO GUERRA,

ERNESTO ALVARDO, AND HERALDO PENA

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Mission Independent School District, McAllen

Independent School District, Pharr-San Juan-Alamo In-

dependent School District, and Dr. Kenneth White, Rafael

Cantu, Rodney Cathey, Ricardo R. Chapa, Agusto Guerra,

Ernesto Alvardo, and Heraldo Pena, individually and in their

official capacities, Defendants in the above sty'ed and num-

bered cause and file this, their answer, to the complaint filed

herein by Plaintiffs and would respectfully show unto the

Court as follows:

1. These Defendants admit that the action brought herein

is against the Texas Education Agency and members of the

Board of Trustees of the Pharr-San Juan-Alamo Independent

lla

School District, Mission Independent School District, McAllen

Independent School District and Eagle Pass Independent

School District and that the Defendants are various schoo!

officials but these Defendants have no knowledge or informa-

tion sufficient to form a belief regarding the truth of the

remaining allegations of paragraph 1 of the complaint.

2. These Defendants admit Plaintiffs seek injunctive and

declaratory relief, however, the Defendants have no know!-

edge or information sufficient to form a belief regarding the

truth of the allegations that Plaintiff and all class members are

all citizens of the United States.

3. The Defendants deny that jurisdiction on this case is

based upon 28 U.S.C. § 1331, 2201, 2202, 42 U.S.C. 1983 and

the 14th Amendment of the United States Constitution, how-

ever, Defendants admit that jurisdiction can be based on 28

U.S.C. § 134303).

4. These Defendants have no knowledge or information

sufficient to form a belief regarding the truth of the allegations

of paragraph 4 of the complaint.

5. These Defendants have no knowledge or information

sufficient to form a belief regarding the truth of the allegations

of paragraph 5 of the complaint.

6. These Defendants admit Andres Lopez is 8 years of age

and admit he brings this suit by next friend and grandmother,

Mrs. Maria Arredondo.

7. These Defendants have no knowledge or information

sufficient to form a belief regarding the truth of the allegations

of paragraph 7 of the complaint.

8. These Defendants admit the allegations contained in

paragraph 8 of the complaint, however, subsequently Andres

Lopez was permitted to register and now attends Pharr-San

Juan-Alamo Independent School District.

12a

9. These Defendants have no knowledge or information

sufficient to form a belief regarding the truth of the allegations

of paragraph 9 of the complaint.

10. These Defendants have no knowledge or information

sufficient to form a belief regarding the truth of the allegations

of paragraph 10 of the complaint.

11. These Defendants admit that Fidel Alvares brings this

suit by his next friend, Mr. Jesus Carrillo, that he was living

with Mr. Carrillo in McAllen at the time he attempted to

not permitted to register in McAllen Independent School Dis-

trict in the Fall of 1977 and that at the time registration was

attempted, Mr. Carrillo was informed by Dr. Ricardo Chapa

that registration would not be permitted because the child’s

parents did not live in the McAllen Independent School Dis-

trict and he did not have a guardian. Defendants have no

knowledge or information sufficient to form a belief regarding

the truth of the remaining allegations of paragraph 11 of the

complaint.

12. These Defendants admit the allegations contained in

paragraph 12 of the complaint.

13. Defendants admit that the Plaintiff Dolores Michelle

Rodriguez is an American citizen, that she is 13 years of age,

and that she lives with Mrs. Artino Garza who brings this suit

as her next friend. Defendants deny that Dolores Michelle

Rodriguez has lived in Mission since July, 1975, or that she last

lived in California prior to coming to Mission. Defendants have

not sufficient knowledge or information to form a belief as to

the truth of the averments of the place of the birth of the child,

or of her residence prior to July, 1975.

14. Defendants admit that Mrs. Artino Garza is the aunt of

Dolores Michelle Rodriguez. Defendants have not sufficient

knowledge or information to form a belief as to the truth of the

other averments of paragraph 14 of the complaint.

loa

15. Defendants deny that the Plaintiff child came to live

with her aunt in July, 1975. Defendants have not sufficient

knowledge or information to form a belief as to the truth of the

other averments of paragraph 15 of the complaint.

16. Defendants admit the averments of paragraph 16 of the

complaint with this qualification: Rafael Cantu has no recollec-

tion of the conversation with the Plaintiff child or Mrs. Garza,

but he routinely tells applicants in the Plaintiffs’ position what

Plaintiffs aver that he told them.

17. Defendants admit the averments of paragraph 17 of the

complaint.

18. These Defendants admit Plaintiff, Delia Morales br-

ings this suit by her next friend, Oralia Martinez, her sister,

and that she resided with her sister in September, 1977, how-

ever, these Defendants have no knowledge or information

sufficient to form a belief regarding the truth of the remaining

allegations contained in paragraph 18 of the complaint.

19. These Defendants admit the allegations contained in

paragraph 19 of the complaint.

20. These Defendants admit the allegations contained in

paragraph 20 of the complaint.

21. These Defendants have no knowledge or information

sufficient to form a belief regarding the truth or the allegations

contained in paragraph 21 of the complaint.

22. These Defendants admit Roberto Morales is a minor

and that this suit is brought by his next friend, his sister, Oralia

Martinez, whe he lives with in the McAllen Independent

School District, however, these Defendants have no know!-

edge or information sufficient to form a belief regarding the

truth of the remaining allegations contained in paragraph 22 of

the complaint.

23. These Defendants admit the allegations contained in

paragraph 23 of the complaint.

l4da

24. These Defendants have no knowledge or information

sufficient to form a belief regarding the truth of the allegations

contained in paragraph 24 of the complaint.

25. These Defendants have no knowledge or information

sufficient to form a belief regarding the truth of the allegations

contained in paragraph 25 of the complaint.

26. These Defendants have no knowledge or information

sufficient to form a belief regarding the truth of the allegations

contained in paragraph 26 of the complaint.

27. These Defendants admit the allegations contained in

paragraph 27 of the complaint.

28. These Defendants admit the allegations contained in

paragraph 28 of the complaint.

29. These Defendants admit the allegations containea in

paragraph 29 of the complaint.

30. These Defendants admit the allegations contained in

paragraph 30 of the complaint.

31. These Defendants have no knowledge or information

sufficient to form a belief regarding the truth of the allegations

contained in paragraph 31 of the complaint.

32. These defendants deny the allegations contained in

paragraph 32 of the compiaint.

33. Defendants deny that their employees and agents have

refused to register all (he named Plaintiffs and class members

within their respective school district and would show at least

two of the named Plaintiffs are registered, one in the McAllen

Independent School District and one in the Pharr-San Juan-

Alamo Independent School District. Defendants further state

that certain members of the class have, from time to time, been

permitted to register in the respective school district. Defend-

ants deny that they have made the registration of Plaintiffs and

their class members contingent upon having a court appointed

guardian or parents living within the school district but merely

have followed the provisions of the Texas Education Code

Loa

regarding registration requirements of students. These De-

fendants admit that certain Plaintiffs and class members have

been permitted to register subject to certain conditions which

may ‘nelude initiating and completing a legal guardianship

proceeding but affirmatively state that there are other proce-

dures available to Plaintiffs and members of their class they

purport to represent in obtaining admission to their schoo!

districts.

34. These Defendants admit the allegations contained in

paragraph 34 of the complaint.

35. These Defendants admit the allegations contained in

paragraph 35 of the complaint.

36. These Defendants have no knowledge or information

sufficient to form a belief regarding the truth of the allegations

contained in paragraph 36 of the complaint.

37. These Defendants incorporate by reference their

answer contained in paragraphs 1 through 36 as set forth

above.

38. These Defendants deny the allegations contained in

paragraph 38 of the complaint.

39. These Defendants incorporate by reference their

answer contained in paragraphs 1 through 36 as set forth

above.

40. These Defendants deny the allegations contained in

paragraph 40 of the complaint.

41. These Defendants incorporate by reference their

answer contained in paragraphs 1 through 36 as set forth

above.

42. These Defendants deny the allegations contained in

paragraph 42 of the complaint.

43. These Defendants deny the allegations contained in

paragraph 43 of the complaint.

lia

44. These Defendants deny the allegations conained in

paragraph 44 of the complaint.

45. These Defendants deny the allegations contained in

paragraph 45 of the complaint.

46. These Defendants deny the allegations contained in

paragraph 46 of the complaint.

47. These Defendants incorporate by reference their

answer contained in paragraphs 1 through 36 as set forth

above.

48. These Defendants deny the allegations contained in

paragraph 48 of the complaint.

49. These Defendants incorporate by reference their

answer contained in paragraphs 1 through 36 as set forth

above.

50. These Defendants deny the allegations contained in

peragraph 50 of the complaint.

51. These Defendants incorporate by reference their

answer contained in paragraphs 1 through 36 as set forth

above.

52. These Defendants deny the allegations contained in

paragraph 52 of the complaint.

53. These Defendants incorporate by reference their

answer contained in paragraphs 1 through 36 as set forth

above.

54. These Defendants deny the allegations contained in

paragraph 54 of the complaint.

55. These Defendants deny the allegations contained in

paragraph 55 of the complaint.

56. These Defendants specifically state that Plaintiffs will

suffer no irreparable injury as a result of Defendants’ actions

herein.

17a

57. Further pleading herein, these Defendants would

show the Court that granting a temporary or preliminary

injunction herein would drastically change the status quo and,

in effect, grant Plaintiffs and members of their class the entire

relief sought by them, requiring these Defendants to admit

Plaintiffs and all members in the class defined by Plaintiffs

would result in irreparable injury to these Defendants. This

would cause extreme overcrowding of classes, which are

presently overcrowded at times, require additional facilities,

curriculum, teachers and many other expenses at a time that is

in the middle of a school year when the school is operating

under the budget and tax rate set for the school district during

the Summer of 1977.

58. By not seeking a determination by the Board of Trus-

tees as required by § 21.031(d) of the Texas Education Code,

the Plaintiffs have failed to exhaust their administrative reme-

dies and should not be permitted to bring this action without

first adhering to the administrative procedure set forth in that

statute.

59. The portions of the statute questioned by Plaintiffs

consists of a legislative classification which is not arbitrary or

invidious. It has a reasonable, rational and/or even compelling

basis for its existence. The constitutional analysis of these

portions of the statute should not be strict as the rights affected

therein are not among the rights afforded explicit or implicit

protection by the United States Constitution.

60. The statute is applied equally to the residents and

non-residents of the State of Texas, the only restriction being

school district boundaries rather than state or national bound-

aries and, therefore, are not violative of any provision con-

tained in the United States Constitution or 42 U.S.C. 1983.

61. Since Plaintiffs and members of their class are sent to

various Texas Free School Districts for the primary purpose of

attending public schools situated therein, their residence in the

school district is not bona fide. The residence of a minor is

normally that of its parents who, in this case, Plaintiffs allege

reside outside the state of Texas.

62. Defendants, Dr. Kenneth White, Rafael Cantu, Rod-

ney Cathey, Ricardo R. Chapa, Agusto Guerra, Ernesto

Alvardo and Heraldo Pena state that they are public officials,

employed by their respective school districts and are exercis-

ing discretion in the performance of their duties. Any action

they have taken with regard to admission or registration at

their respective school districts has been in good faith belief

that they were adhering to all applicable state and federal

statutes, laws and regulations and the United States Constitu-

tion.

WHEREFORE, these Defendants pray that upon hearing,

this Court deny Plaintiffs application for preliminary injune-

tion and deny the declaratory judgment and injunctive relief

sought by Plaintiffs and for such further relief, general or

special, in law or in equity to which they may show themselves

entitled to receive.

Respectfully submitted,

ATLAS, HALL, SCHWARZ, MILLs,

Gurwitz & BLAND

/s/ By: Travis Heister

TRAVIS HEISTER

Attorneys for McAllen Independent

School District

KING, WAITE AND GUERRA

‘s/ By: Neal King

NEAL KING

Attorneys for Mission Independent

School District

/s) Mario Ramirez

Mario RAMIREZ

Attorney for Pharr-San Juan-Alamo

Independent School District

19a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION

Civil Action No. B-77-296

Maria ARREDONDO as next friend for ANDRES Lopez, ef a/

‘Plaintiffs

Dr. M. L. Brocketre, Commissioner of Education, in his

official capacity, et al.

Detendants

FILED

Aug 25 1978

ORDER

On the 25th day of August, 1978, this Court convened a

hearing in the above-styled and numbered cause in order to

determine whether or not to issue a preliminary injunction as

requested by the Plaintiffs. After a careful review of the school

district reports on file, the arguments and briefs of all counsel! -

and the applicable law, it is this Court’s opinion that no injunc-

tion should issue, sinee Plaintiffs have failed to demonstrate a

substantial likelihood of success on the merits. See Barrett v.

Roberts, 551 F.2d 662, 665 (Sth Cir. 1977).

In Order for this Court to grant the preliminary injunction

Plaintiffs seek, it would of necessity have to hold the state

statute involved herein to be unconstitutional. The Plaintiffs

want this Court to allow United States citizens who come to

school districts in Texas to live with relatives such as grandpa-

rents, brothers, sisters, aunts or uncles to attend school even

when the school board involved, under the provisions of the

statute, makes a finding that the child has moved into the

school district away from parents or legal guardians for the

20a

sole purpose of attending school. This Court is not prepared to

do so on the basis of the record presently before it.

The state has a valid interest in wanting to educate children

who are legitimate residents of a school district. This being so,

this Court cannot pick and choose and exempt one group from

this requirement.

While at first blush the requirement that a child who has a

legal guardian residing within the district must be admitted to

school seems to lack any rational basis, the fact that parents

have lost control over their child by permitting such contro! to

pass to a legal guardian and that the legal guardian is then the

one responsible for such a child creates a rational and reason-

able basis for the requirement.

An analysis of the reports of the school districts submitted

since the first hearing in this case shows that the school boards

of the districts before the Court have been more than liberal in

finding that certain children are not living away from parents

and residing in the school district for the sole purpose of attend-

ing school. Such analysis shows conclusively that children liv-

ing within the school districts with someone other than their

parents or legal guardians will be admitted to school if any

reason exists for such situation other than that of attending

school only.

Based upon the above, it is hereby

ORDERED that Plaintiffs’ Motion for Preliminary Injunc-

tion be in all things DENIED.

A copy of this Order shall be sent by the Clerk to all counsel.

DONE at Brownsville, Texas, on this the 25th day of Au-

gust, 1978.

s Reytialdo G. Garza

REYNALDO G. GARZA

United States District Judge

2la

Maria ARREDONDO as next friend for ANDRES Lopez, Jesus

CARRILLO as next friend for Fip—L ALVARES, Mrs. ARTINO

GARZA as next friend for DoLores MICHELLE Ropricvez, Ora.

LIA MARTINEZ as next friend for DELIA and Ropekro MoRALEs,

FLORA FALcon as next friend for Rita Gomez, ANTONIO

GUTIERREZ as next friend for SILVESTRE MARQUEZ Lopez, and

VicTorIA MARTINEZ as next friend for Marta GuTIERREZ-

GONZALEZ,

Plaintiffs

Vv.

M. L. Brocketre, Commissioner of Education in his official

capacity, The Texas Epucation AGENCY, PHARR-SAN JUAN-

ALAMO INDEPENDENT SCHOOL District, MCALLEN: IN.

DEPENDENT SCHOOL District, Mission INDEPENDENT SCHOOL

District, HARLINGEN INDEPENDENT ScHooL District, and

ARTURO GUERRA, RopNEY CATHEY, KENNETH WHITE, and DAN

Ives, individually and in their official capacities,

Defendants

Civ. A. No. B-77-296

UNITED STATES DISTRICT COURT,

5.D. TEXAS,

BROWNSVILLE DIVISION

DEC. 19, 1979.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

KaZeNn, District Judge.

As will be more fully detailed below, the instant suit was

originally filed asking the Court to declare unconstitutional a

state statute and to enjoin the attempted enforcement of same.

A hearing was held on October 26, 1979, at which time evidence

on the merits was received. Pursuant to Rule 52, Federal

Rules of Civil Procedure, the Court now submits its Findings

of Fact and Conclusions of Law. Virtually all of the findings of

fact are based upon stipulations made between the parties.

FINDINGS OF FACT

1. Both Plaintiff Roberto Morales and Plaintiff Rita Gomez

are United States citizens.

2. Each child is over five years of age and under eighteen

years of age.

3. Plaintiff Roberto Morales lives within the McAllen In-

dependent School District for the primary purpose of attend-

ing school and learning English.

4. Plaintiff Rita Gomez lives within the Pharr-San Juan-

Alamo School District for the primary purpose of attending

school.

5. Neither Plaintiff resides with his or her parent, legal

guardian, or other person having lawful control of him under a

court order.

6. Neither Plaintiff has a parent, legal guardian, or other

person having lawful control of him residing in the McAllen or

Pharr-San Juan-Alamo School Districts.

7. Both Plaintiffs would otherwise be eligible for admission

to the public free schools under the provisions of the Tex.

Educ.Code Ann. tit. 2, § 21.031(¢) (Vernon Supp. 1978), which

provides:

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 contro! resides within the school

district.

23a

8. Both Plaintiffs were denied admission to the Texas free

schools under the provisions of Tex.Educ.Code Ann. tit. 2,

§ 21.03i(d) (Vernon Supp. 1978), which provides:

In order for a person under the age of 18 years to establish

a residence for the _—— of attending the public free

schools separate and apart from his parent, guardian, or

other person having lawful control of him under an order

of a court, it must be established that his presence in the

school district is not for the primary purpose of attending

the public free schools. The board of trustees shall be

responsible for determining whether an applicant for

admission is a resident of the school district for purposes of

attending the public schools.

9. Plaintiff Roberto Morales began living in McAllen In-

dependent School District at the beginning of the 1977 school

year and has continuously resided there since that time.

10. Plaintiff Roberto Morales only intends to reside in the

McAllen Independent School District until he completes his

education.

11. While Plaintiff Roberto Morales was denied admission

to the McAlien Independent School District in 1977 and 1978,

he was granted permission to attend school in November,

1978, contingent upon the payment of tuition. (See Pl. Exh. No.

2).

12. Plaintiff Roberto Morales and the person with whom he

is residing are both indigent.

13. In November, 1978, tuition in the amount of $378.00

was paid on behalf of Plaintiff Roberto Morales by the Texas

Rural Legal Aid, Inc. The parties apparently dispute whether

these funds were those of the corporation itself or whether

they were actually furnished by the family of Morales, In-

sufficient evidence was presented to enable the Court to re-

solve this point but the Court regards the issue as irrelevant to

the ultimate disposition of the case. (PI.Exh. No. 3).

14. Plaintiff Roberto Morales has not paid tuition for the

Spring, 1978, or Fall, 1979, semesters and he was originally

24a

informed that his continued enrollment was conditioned upon

the payment of all monies due and the availability of space.

15. Plaintiff Roberto Morales was expelled from schoo! on

November 28, 1978, for failure to pay tuition. On December 12,

1979, this Court issued a preliminary injunction returning him

to school conditioned upon his first posting a bond in the sum of

$1,224.00 to secure Defendant McAllen Schoo! District's claims

for tuition against Plaintiff. The Plaintiff is now in school

pending ultimate determination of this case on the merits.

16. Plaintiff Rita Gomez only intends to reside in the

Pharr-San Juan-Alamo School District until she completes her

education.

17. Plaintiff Ritz Gomez was denied admission to school for

the 1979-80 school year by officials of the Pharr-San Juan-

Alamo Schoo! District.

18. Plaintiff Ritz Gomez and the person with whom she is

residing are both indigent.

19. Plaintiff Delia Morales, a United States citizen and the

sister of Plaintiff Roberto Morales, was also denied admission

to the McAllen Independent School District, pursuant to

§ 21.031(d). She was then admitted upon paying tuition, but

subsequently withdrew from school and returned to Mexico.

Her tuition was refunded by the McAllen School District. See

(Pl.Exh. 5).

20. According to admissions contained in the pleadings,

Plaintiff Fidel Alvares, a United States citizen, was also de-

nied admission to the McAllen Independent School District,

pursuant to § 21.031(d), but no further evidence was presented

either in support of or in opposition to his claim.

21. According to the pleadings, Plaintiff Andres Lopez, a

United States citizen, was originally denied admission to the

Pharr Independent School District, pursuant to § 21.031(d),

but was subsequently admitted. No further evidence was pre-

sented either in support of or in opposition to his claim.

25a

22. Prior to trial, the Plaintiffs voluntarily dismissed their

cause of action as to Defendants Harlingen Independent School

District and Dan Ives. The dispute of Plaintiffs Silvestre Mar-

quez Lovez and Marta Gutierrez-Gonzalez was with these De-

fendants; therefore, their claims will not be adjudicated here-

in. .

23. Prior to trial, Plaintiffs moved and were granted per-

mission to dismiss, without prejudice, their cause of action

against Defendants Mission Independent School District and

Kenneth White. Since, according to the motion, no known

Plaintiffs are currently being excluded from the district, the

claim of Plaintiff Dolores Michelle Rodriguez has been ren-

dered moot and incapable of adjudication.

24. None of the adults with whom the Plaintiffs reside

desire to become the legal guardian or legal custodian of the

child who lives with them.

25. The Texas statute in question operates to absolutely

deprive a child of an education if it is determined that the child

resides apart from his or her parent, legal guardian or one

having lawful control over him or her for the primary purpose

of attending the free public school and that child is indigent.

26. If Section 21.031(d) of the Texas Education Code were

declared unconstitutional, it would, in all probability, cause the

immediate enrollment of thousands of children from other

states and countries who are United States citizens whose

parents do not reside within the relevant school district.

Furthermore, the enrollment would probably increase signifi-

cantly each year.

27. The legislative classification imposing the residency

requirement applies to intrastate school district transfers as

well as transfers of children from other states and countries.

28. Declaring the statute unconstitutional would cause

substantial numbers of intra-district transfers, which would

further cause school populations to fluctuate. Also, the intra-

state migration of students between school districts would

26a

cause probiems in the athletic programs by possibly encourag-

ing the recruitment of athletes.

29. Fluctuating school populations would make it impossi-

ble to predict enrollment figures—even on a semester-by-

semester basis, causing over-or-under-estimates on teachers,

supplies, materials, ete.

30. The increased enrollment of students would cause

overcrowded classrooms and related facilities; over-large

teacher-pupil ratios; expansion of bilingual programs; the pur-

chase of books, equipment, supplies and other customary items

of support; all of which would require a substantial increase in

the budget of the school districts.

31. Neither the State of Texas nor the Texas Education

Agency nor the United States of America provides funds to

assist school districts with educating Plaintiffs or children

similarly situated. This burden falls exclusively upon the local

school district.

32. Some schoo! districts are presently taxing at the max-

imum rate allowed by law and have no means to obtain more

financial assistance.

33. Most of the children in the Plaintiffs’ category do not

pay any local school or state taxes or tuition and, therefore,

their education would be funded and paid for by the resident

taxpayers of the State of Texas and the school district, includ-

ing some of the adults the children live with in the school

district. :

34. The intrastate and interstate transfers would, in all

probability, have a detrimental effect on the educational! stand-

ards of the Defendant school districts and the other school

districts in the State of Texas.

35. The children in this case live with persons who could, in

the absence of notice to the contrary, consent to medical treat-

ment for the minor. See Tex.Fam.Code Ann. § 35.01(2) (Ver-

non 1975).

27a

36. The statutory definition contained in Section 21.031(d)

was passed to give administrators a statutory guideline to

follow in determining a genuine bona fide resident.

37. At least one of the legislative purposes behind Section

21.031(d) was to inhibit the migration of persons residing in

Mexico to attend schools in the United States. (See Pl. Exh. 6).

38. Between August 1, 1977, and May 25, 1978, out of a

total of fifty-six minor United States citizens living apart from

their parents, legal guardian or other person having lawful

control over them, who applied for admission to the McAllen

Independent Schoo! District, fifty-one of these children were

admitted.

39. In denying an earlier Motion for a Preliminary Injunc-

tion, then-presiding Judge Reynaldo Garza found that the

Defendant school districts had been most liberal in finding that

certain children, like the Plaintiffs, are not living away from

their parents or residing in the school districts for the sole

purpose of attending school. Judge Garza further found that

analysis of the records submitted in this case conclusively

showed that children living within the school districts with

someone other than their parents or legal guardians will be

admitted to school if any reason exists for such situation other

than solely attending school. This Court has no reason to doubt

the accuracy oi these findings and they are adopted for pur-

poses of this Opinion.

40. The parties have specifically limited this case to the

issue of the facial constitutionality of Tex.Educ.Code Ann.

§ 21.031(d).

41. On October 26, 1979, it was agreed in open court that

the Plaintiffs’ Motion for a Preliminary Injunction would be

consolidated into a final hearing on the merits. See generally

Fed. R.Civ.P. 65(a)(2).

42. Inthe event that any of the foregoing findings of fact

also constitute conclusions of law, they are adopted as such. In

the event that any of the following conclusions of law also

constitute findings of fact, they are adopted as such.

28a

CONCLUSIONS OF LAW

This case presents the very narrow issue of whether

Tex.Edue.Code Ann. § 21.031(d) is unconstitutional on its

face. Earlier in this case, Plaintiffs specifically requested and

were granted permission to amend their complaint to eliminate

any contention that the statute was unconstitutional as applied

to them. The minor Plaintiffs are United States citizens resid-

ing within Texas and living apart from their parents, legal

guardian or other person having lawful control over them.

These children desire to attend public schools on a tuition-free

basis. The Defendant school districts have refused to admit the

children tuition-free, having determined that the Plaintiffs are

living apart from their parents, legal guardian or other person

having lawful control over them by court order for the primary

purpose of attending the free public schools. See. Tex. Educ-

-Code Ann. § 21.031(d) (Vernon Supp. 1978).

This Court first notes that as a general rule the Constitution

“does not invalidate state legislation because it fails to embody

the highest wisdom or provide the best conceivable remedies.”

Cohen v. Beneficial Industrial Loan Co., 337 U.S. 541, 550-51,

69 S.Ct. 1221, 1227-1228, 93 L.Ed. 1528, 1538 (1949). This

Court's task is thus not to weigh a statute’s effectiveness but

its constitutionality. James v. Strange, 407 U.S. 128, 133, 92

S.Ct. 2027, 2030, 32 L. Ed.2d 600, 606 (1972) (rational basis test

applied). Furthermore, the fact that an inequitable result may

be forthcoming does not render a statute unconstitutional. See

Wickard v. Filburn, 317 U.S. 111, 129-30, 63 S.Ct. 82, 91, 87

L.Ed. 122, 137 (1942).

. As Plaintiffs candidly recognize, any statute is the result ofa

legislative choice that inevitably affects one group differently

from others and, therefore, gives rise to claims of unequal

treatment. Whether such statute is unconstitutional under the

equal protection clause is generally determined by the “ration-

al basis test”; that is, the statute is entitled to a presumption of

validity and will be upheld so long as it bears some rational

relationship to the achievement of a legitimate purpose. Sav

29a

Antonio School District v. Rodriguez, 411 U.S. 1, 40, 93.S.Ct.

at 1300, 1278, 36 L. Ed.2d 16 at 47 (1973). On the other hand, ifa

statute involves “suspect classifications” or if it interferes with

a fundamental right explicitly or implicitly protected by the

Constitution, then the statute must withstand “strict judicial

scrutiny.” It is not entitled to the usual presumption of valid-

ity, and the statute must fail unless it is necessary to promote a

compelling state interest. Jd. at 16-17, 93 S.Ct. 1287-88, 36

L.Ed.2d 32-33. Plaintiffs rightfully do not contend that the

statute in question involves any suspect classifications, as it

applies on its face to all students of whatever race, sex, or

national origin.' Further, this statute involves secondary

education and the Plaintiffs recognize that while education is

unquestionably vital, the Supreme Court has held that it is not

among the rights afforded explicit or implicit protection under

the Constitution. /d., at 35, 93S.Ct. at 1297, 36 L.Ed.2d at 44.

In an effort to bring this statute within the much stricter

“compelling interest” test, Plaintiffs allege that the statute

improperly burdens their fundamental constitutional right to

travel, and they thereby seek relief under the umbrella of such

decisions as Shapiro v. Thompson, 394 U.S. 618, 898.Ct. 1322,

22 L.Ed.2d 600 (1969) and Memorial Hospital v. Maricopa

County, 415 U.S. 250, 94 S.Ct. 1076, 39 L. Ed.2d 306 (1974).

'The United States Supreme Court has identified numerous sus-

pect classifications. For example, racial classifications and classifiea-

tions based on alienage are deemed suspect and subject to “strict

scrutiny.” See Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 184s,

29 L.. Ed.2d 534 (1971) (alienage); Loving v. Virginia, 388 U.S. 1 87

S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (race); McLaughlin v. Flore,

379 U.S. 184, 85 S.Ct. 283, 13 L. Ed.2d (1964)(race). Although sexual

classifications were held to be suspect in one case, Frontiero v.

Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973),

recent cases evidence a retrenchment from this position and the

application by the Supreme Court of an intermediate scrutiny. See

Orr v. Orr, 440 U.S. 268, 278-79, 99 S.Ct. 1102, 1111, 59 L. Ed.2d 306,

318-19 (1979).

30a

Shapiro, supra, affirmed lower court decisions declaring

unconstitutional those statutes denying welfare assistance to

residents of a state who had not resided within their jurisdic-

tion for at least one year immediately preceding the application

for assistance. The Court found that the statutes penalized the

exercising of a constitutional right to interstate travel and,

therefore, failed because they were not necessary to promote a

compelling state interest. Memorial Hospital, supra, an-

nounced a similar result with respect to a statute requiring a

one-year’s residence as a condition to receiving non-emergency

hospital or medical care at county expense. There is a fun-

damental and critical difference, however, between the stat-

utes involved in those cases and the statute before this Court.

The Supreme Court has made it crystal clear that the defect in

the Shapiro and Memorial Hospital statutes was vot that they

had residency requirements but that they had durational resi-

dency requirements. ;

In Shapiro, supra, the Court clearly noted that residency

and one-year residency were two separate and distinct prere-

quisites for welfare assistance. 394 U.S. at 636, 89.5.Ct. at

1332, 22 L.Ed.2d at 616. Later, in Dunn v. Blumstein, 405

U.S. 330, 92 S.Ct. 995, 31 L. Ed.2d 274 (1972), a case concern-

ing a durational residency requirement for voting, the Court

again applied the compelling interest rule. However, the Court

made it clear that the challenge was not direeted at the require-

ment of residency but rather at the requirement of durationa!

residency. “We emphasize again the difference between bona

fide residence requirements and durational residence require-

ments.” 405 U.S. at 343, 92S.Ct. at 1003-1004, 31 L.Ed.2d at

284. This distinction was more clearly defined in Memorial

Hospital, supra, where the Court reemphasized that the con-

stitutional right to interstate travel did not mean merely the

right to be in motion but rather the right to migrate, resettle,

and start a new life. 415 U.S. at 255, 94 5.Ct. at 1080, 39

L.Ed.2d at 313. The Court concluded that while every bona

fide residence requirement would necessarily burden a simple

right to move from one location to another, it was only a

Sla

durational residency requirement that impermissibly bur-

dened the constitutional right “to migrate, ‘with intent to

settle and abide.’ ” Jd. More recently, in McCarthy v. Phila-

delphia Civil Service Commission, 424 U.S. 645, 96 S.Ct.

1154, 47 L.Ed.2d 366 (1976) (per curiam), the Court repeated

that: “We have previously differentiated between a require-

ment of continuing residency and a requirement of prior resi-

dency of a given duration.” 424 U.S. at 647, 968.Ct. at 1155, 47

L.Ed.2d at 369.

The Fifth Circuit Court of Appeals has also recognized this

distinction in upholding an ordinance requiring all municipal

employees to maintain their domicile and principal place of

residence within the corporate limits of the city during the

period of their employment. Wright v. City of Jackson, 506

F.2d 900 (5th Cir. 1975). Noting that there is no fundamental

constitutional “right to commute,” the Fifth Circuit held that a

bona fide continual residency requirement is not to be tested

by the strict compelling purpose standard but rather by the

traditional rational basis test. Similarly, in Andre v. Board of

Trustees of Village of Maywood, 561 F.2d 48 (7th Cir. 1977),

cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756

(1978), the court noted:

All residency restrictions have an effect on the right to

interstate travel, but only those residency restrictions

which can be characterized as ‘durational’ have been found

to unconstitutionally impinge or penalize the right to

travel, in the absence of some compeiling state interest.

Durational residency requirements classify residents into

groups of residents who have fulfilled the residency

requirements and those who have not . . . Bona fide re-

sidency requirements as continuing conditions of municip-

al employment rest upon footings significantly different

from those of durational residency requirements.

561 F.2d at 52.

In the instant case, the Texas statute only attempts to articu-

late a residency definition and in no way contains a durational

residency requirement. The Court, therefore, concludes that

the statute does not burden the constitutional right to travel

and thus must be examined under the raticnal basis test.“

Before analyzing whether or not the statute can pass this test,

however, the Court will next consider Plaintiffs’ second basic

point of attack.

Piaintiffs contend that the statute violates both the due

process and equal protection clauses of the fourteenth amend-

ment because its definition of residency creates “an invalid

irrebuttable presumption of non-residency.”’ This contention

is essentially grounded on two key cases, Carrington v. Rash,

380 U.S. 89, 85S.Ct. 775, 13 L. Ed.2d 675 (1965) and Vlandis v.

Kline, 412 U.S. 441, 93. S.Ct. 2230, 37 L.Ed.2d 63 (1973). In

Carrington, the Court was concerned with the provision of the

Texas Constitution that prohibited any member of the armed

* Even if a durational residency requirement were involved in this

case, it would not automatically be considered an unconstitutional

penalty on the right to interstate travel. In Shapiro, supra, the

Court expressly reserved decision as to whether a durational re-

sidency requirement for “tuition-free education” would be unconsti-

tutional. 394 U.S. at 638 fn.21, 89S.Ct. at 1335, f. 21, 22 L.Ed.2d at

617. In Memorial Hospital, supra, the Court reiterated that,

depending upon what right is affected, some waiting periods may not

he penalties. 415 U.S. at 258-59, 94 S.Ct. at 1082, 39 L.Ed.2d at 314.

in Vlandis v. Kline, 412 U.S. 441, 452-55, 95 S.Ct. 2230, 37 L.Ed.2d

63 (1973), the Court specifically declined to hold that a state could not

impose a “reasonable durational residency requirement” as one ele-

ment in demonstrating bona fide residence for purposes of lower

tuition and fees. In Starns v. Malkerson, 326 F. Supp. 234 (D. Minn.

1970), aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), the

district court upheld a university regulation providing that no stu-

dent could qualify as a resident for tuition purposes unless he had

been a bona fide domiciliary of the State for at least one year, and this

decision was affirmed by the Supreme Covet. In Soswa v. Lowa, 419

U.S. 393, 95 S.Ct. 5538, 42 L.Ed.2d 532 (1975), the Court upheld a

one-year durational residency requirement for obtaining a divorce.

* Plaintiffs’ First Amended Complaint, 2lb.

33a

forces of the United States who moved his home to Texas

during the course of his military duty from ever voting in a

Texas election “so long as he or she is a member of the Armed

Forces.” The Court held that this provision violated the equal

protection clause of the fourteenth amendment. In that case,

however, it was undisputed that the petitioner had been domi-

ciled in Texas and that “he intend|ed] to make his home there

permanently.” 380 U.S. at 91, 85 S.Ct. at 777, 13 L.Ed.2d at

677. The Court stressed that Texas had the right to require all

military persons to be bona fide residents of the community

before they were entitled to vote but concluded that if the

military personnel were “in fact residents, with the intention of

making Texas their home indefinitely,” then they had the right

to be treated the same as other Texas residents. /d. at 93-94, 85

S.Ct. at 779, 138 L.Ed.2d at 678.

In Viandis, the Court considered a Connecticut statute

which attempted to define residents and non-residents for

purpose of paying higher tuition at state universities. Under

the statutory scheme, once a student was classified as a “non-

resident,” his status was permanent and irrebuttable during

the entire time that he remained at the university, regardless

of the particular fact situation of any given student. The Court

held that this statute was a violation of the constitutional right

to due process. In so doing, however, the Court was careful to

observe that it was not questioning the segregation of students

into resident and non-resident categories nor the charging of

higher fees to the latter group. The narrow holdings in V/an-

dis, therefore, was simply that a permanent irrebuttable

presumption of non-residence violated the due process clause.

The Court cannot agree that the statute involved here cre-

ates an irrebuttable presumption of the type condemned by

Viandis. The challenged portion of the statute provides, in

essence, that if a student under the age of eighteen years is

living apart from his parent, guardian, or other person having

lawful control of him under court order, then in order to estab-

lish residency for purposes of attending free public schools,

that student must establish that his presence in the school

oda

district is “not for the primary purpose of attending the public

free schools.” Thus, unlike statutes which set forth objective

criteria for residency such as length of time or a negative

category (such as “member of the Armed Forces”), this statute

codifies the ultimate universal test of residency, namely sub-

jective intent. Of course, there is a certain superficial logic to

the argument that the statutory definition is “irrebuttable”

because as long as the minor student admits that he is living

apart from his parent or guardian for the sole purpose of

attending free public schools in a particular district, then he

can never be classified as a resident. On the other hand, how-

ever, by using the definition of residency almost universally

accepted in school cases, the statutory criteria in one sense

merely states a truism, namely that a person who only intends

to remain in a given place temporarily in order to take advan-

tage of a particular benefit at that location necessarily lacks the

permanence to be classified as a resident.

Thus, in Vlandis, supra, the Supreme Court said:

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 educational purposes, cannot

take advantage of the in-state rates. 412 ts. at 453-54, 93

S.Ct. at 2237 (emphasis supplied).

In Spriggs v. Altheimer, Arkansas School District Number

Twenty-Two, 385 F.2d 254 (8th Cir. 1967), the minor school

children had been charged tuition because they were living

with their grandfa

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