# Record and brief — Martinez v. Bynum > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1909%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1983 - **Citation:** 461 U.S. 321 ## Text ~— uoned nov t “Oo ¢ 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... . i. 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 13 17 24 32 35 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 29 iv 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 34 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. 2. 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 33 18-23 3 Se a ’ 26 throughout 1. 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. 2. 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 (c) The board of trustees of any public free school district of this state shall admit into the public free schools of the district free of tuition all persons who are either citizens of the United States or legally admitted aliens and who are over five and 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 3. 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 4. 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 5. 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 6. 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. 8. 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). 9. 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. See also, Maricopa, 415 U.S. at 264. Shapiro and Wyman are clear: A state may distinguish between residents and non- residents in distributing essential public benefits. However, a state may not distin- guish among residents based on their motive for residing in the state or the duration of their residency if it deters migration. The attempt to fence out unwanted migrants through such “distinct and independent" requirements unconstitutionally burdens travel. Shapiro, 394 U.S. at 636. Section 21.031(d) presents the same constitutional problem as the statutes in Shapiro and Wyman. It does not seek to 21. distinguish transients from persons who actually reside in the school district. Rather it distinguishes between different groups of factual residents based on their motive for residing in the school district. The State grants an education to those with a worthy motive and denies an education to those who have established their residence for a purpose the State deems unworthy. The actual and intended result of this distinction is that children in the latter group are deterred from migrating to the State. 482 F.Supp. at 216. In fact, the distinctions made by §21.031(d) are even less defensible than those in Shapiro or Wyman. The State does not exclude all children who have the prohibited motive, only those in a parti- cular living arrangement. A child living with his parents may move to a district for the purpose of attending school and 22. he will be admitted. But a child living with his sister who moves for the same purpose will not be admitted. See Moore v. East Cleveland, 431 U.S. 494, 508 (1977) (Brennan, J., concurring). The penalty of exclusion from school is harsher also; it does not expire after a year as it did in Wyman, but continues indefinitely. It has applied to Petitioner for four years. The Court of Appeals’ suggestion that only durational statutes can violate the right to travel directly conflicts with Shapiro, Wyman, and Maricopa. This conflict is of paramount importance. By restricting the right to travel to a particular statutory form, the Court of Appeals has severely limited the protection which may be afforded this fundamental right. Violations of the right to travel will simply go without redress 23. unless they take a durational form. Courts have struck down residency statutes dealing with such diverse benefits as welfare, public housing, abortion, medical care, and voting, based on Shapiro.6/ The Court of Appeals' decision suggests that all of these statutes may be revived through the simple expedient of changing the durational requirement to a motivational one, declaring those who migrate for the purpose of obtain- ing a particular benefit to be ineligible not just for a year, but permanently. Wyman was summarily affirmed by this Court precisely to put an end to such attempts to disregard Shapiro. 6/ See, e.g. Besaw v. Afflect, 333 F.Supp. 775, 780 n.7 (D.R.1I. 1971) and cases cited therein. 24. Dunn v. Blumstein, 405 U.S. 330, 336 (1972). This case once again suggests that Shapiro may be disregarded. 4. The Court of Appeals' Holding That Texas May Irrebutably Presume Non- Residence From Motive For Establishing Residence Conflicts With Supreme Court Precedent. Whether or not §21.031(d) violates the right to travel or passes strict scrutiny, Petitioner asserts that the statute denies him due process by irrebutably presuming he is a non-resident solely because of his motive for moving to Texas. The Court of Appeals holds that this presumption from motive is constitutionally permissible because it embodies the "ultimate universal test of residency." 648 F.2d at 429. This holding directly conflicts with Supreme Court precedent, which holds that a person's motive for moving to a particular place is an irrelevant, if 25. not impermissible, criteria for the determination of residence or domicile.7/ See, Shapiro, 394 U.S. at 631; Wyman, 397 U.S. 49. Motive is irrelevant to the determination of domicile even for such non-vital benefits as federal diver- sity jurisdiction. Although a person changed domicile for the purpose of obtaining diversity jurisdiction, "the motive for change [of domicile] was immaterial; for . .. the Plaintiff had the right to select her domicile for any reason that seemed good to her." Williamson v. Osenton, 232 U.S. 619, 625 (1914); Morris v. Gilmer, 129 U.S. 315, 328 (1889). See alsc, Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (lst Cir. 1979). 7/ The Court of Appeals equates residence under 621.031(d) with domicile, 648 F.2d at 431-432. 26. There is a subjective element which distinguishes a resident from a non- resident, migration from mere travel. However that subjective element is the intent to remain, to abide and make a home, not the purpose which motivates that intent. Maricopa, supra, 415 U.S. at 255. At most, a person's motive for moving is one of many factors which may be considered as evidence of a person's intent to establish a home. This Court observed in Shapiro that the desire to take advantage of welfare benefits or better educational opportunities is frequently the kind of purpose which can motivate an intent to "stay and abide.” 394 U.S. at 629, 632. Petitioner has fully met the intent to remain requirement imposed on school applicants generally. Tex. Ed. Code §21.031(c). 482 F.Supp. at 214 (ff. 7). 27. It should be noted, however, that little or no intent to remain is required for admission to public school. Elementary and secondary education are too vital and time too important to a child to enforce strict residency definitions which could result in children staying home rather than attending school. With the exception of §21.031(d), Texas uses an extremely liberal definition of residency for school purposes.8/ 648 F.2d at 430. i 8/ It may be that the definition of residency varies with the benefit involved, See Elkins v. Moreno, 435 U.S. 647, 672 n,2 (1978) (Rehnquist, J,, dissenting), If so, residence for school purposes is one cf the least restrictive definitions, It would be inconceivable to enforce durational residency statutes on children moving from out of state such as are enforced against college students moving from out of state Starns v. Malkerson, 401 U.S. 985 (1971) aff'g 326 F.Supp. 234 (D,Minn, 1970), 28. The Court of Appeals’ holding that motive is dispositive of residency merits review by this Court. Conditioning the benefits of residency upon an acceptable motive has the gravest implications for the rights of all citizens to freedom of personal choice, Cf. Roe v. Wade, 410 U.S. 113(1973). When some motives are rewarded and others penalized, the State inevitably becomes involved in questions of personal values--questions avoided when the State's only concern is intent to remain. The State ceases to be a neutral judge of who lives where, and becomes the arbiter of private motives, determining whose motives are deserving and whose are not. Outside the criminal context, no permissible state interest is served by a state passing judgment on a citizen's motive for choosing to reside ina 29. particular place. See, Jones v. Helms, 69 L.Ed. 24 118, 124-126 (1981); Shapiro, 394 U.S. at 631-632; Edwards v. California, 314 U.S. 160 (1941). Texas has chosen to finance its schools through a system which creates great disparity between wealthy and poor districts. The constitutionality of that system was upheld in San Antonio School District v. Rodriguez, 411 U.S. l (1973). But fundamental to that decision was the assumption that citizens of Texas are free to live wiiere they choose, that no legal barriers exist to prevent them from moving to wealthy districts if they are dissatisfied with the quality of education in their present districts. Id. at 122 n.83 (Marshall, J., dissenting) ; Maricopa, supra, 415 U.S. at 271 (Douglas, 30. J., concurring).9/ By holding that motive for moving is the universal test of residency, the Court of Appeals suggests that a state may constitutionally require a parent or a child to show an acceptable motive before they will be allowed to establish residence in a wealthy district. In fact, one of Texas' justifications for §21.031(d) is its deterrent effect on such inter-district migration. 482 F.Supp. at 215. Of course §21.031(d) not only prevents Petitioner and those like him from pursuing a better education, it prevents them from obtaining any education 9/ Of course, the right to move to a new district does not mean the right to commute each day from a home in one district to a school in another dis- trict. It means actually moving to a new home. Petitioner presents the case of children who have permanently left their parental home and established a home in a different place. 31. at all. San Antonio School District and Shapiro make clear that a parent may move for the purpose of obtaining a better education for his child. Shapiro, 394 U.S. at 632. But, if a parent may have that express purpose for his child, why can't that same child, when his parents are legally precluded from moving with him, migrate for the purpose of obtaining a better education, indeed, in this case, the only education available to him. For all its simplicity, the Court of Appeals’ decision is a profound and dangerous one. It implies that Texas may welcome Roberto as a resident if he comes to work in its fields, but may turn its back on him if he moves to obtain an education so he may someday find a better job. Such a decision deserves plenary 32. consideration by this Court. 5. This Case is Closely Related to the Issues Which The Court Will Consider in Toll v. Moreno Recently this Court granted certiorari in a college tuition case, Toil v. Moreno, No. 80-2178, 50 U.S.L.W. 3215 (Oct. 6, 1981) granting cert. to Moreno v. University of Md., 645 F.2d 217 (4th Cir. 1981). In Moreno the Court will consider, amcng 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. (c) The board of trustees of any public free school district of this state shall admit into the public free schools of the district free of tuition all persons who are either citizens of the United States or legally admitted 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, Vu 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 la 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 12/19/79 1/3/80 1/10/80 139 140 141 145 2a (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 3a 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 We 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. da 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 Da 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. ba 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 7a 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. Sa 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 Ya 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 v. 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 register in McAllen Independent School District, that he was 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1909%3A0. Public record. Not legal advice.