Plyler vs Doe 457 U.S. 202 (1982) 'Equal Protection of the Laws' for Illegal Children
This is the complete case, with only a few of my notes interspersed, but very interesting portions highlighted in red. This is must reading (especially the red) for anyone who wants to understand how and why the 14th Amendment extends "Equal Protection of the Laws" rights even to people here illegally (though not to immigrant applicants legally in line across our borders). Ask yourself as you absorb this logic, "if Equal Protection of the Laws means illegal children have the right to a public education, what ELSE does it mean? Or, what ELSE might the Court decide it means, should someone ask it?"
Scroll down for the complete case.
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Syllabus
SUPREME
COURT OF THE UNITED STATES
------------------------------------------------------------------------
457
U.S. 202
Plyler
v. Doe
APPEAL
FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
------------------------------------------------------------------------
No.
80-1538 Argued: December 1, 1981 --- Decided: June 15, 1982 [*]
------------------------------------------------------------------------
Held:
A Texas statute which withholds from local school districts any state
funds for the education of children who were not "legally
admitted" into the United States, and which authorizes local
school districts to deny enrollment to such children, violates the
Equal Protection Clause of the Fourteenth
Amendment.
Pp.
210-230.
(a)
The illegal aliens who are plaintiffs in these cases challenging the
statute may claim the benefit of the Equal Protection Clause, which
provides that no State shall "deny to any person within its
jurisdiction the equal protection of the laws." Whatever his
status under the immigration laws, an alien is a "person"
in any ordinary sense of that term. This Court's prior cases
recognizing that illegal aliens are "persons" protected by
the Due Process Clauses of the Fifth and Fourteenth
Amendments,
which Clauses do not include the phrase "within its
jurisdiction," cannot be distinguished on the asserted ground
that persons who have entered the country illegally are not "within
the jurisdiction" of a State even if they are present within its
boundaries and subject to its laws. Nor do the logic and history of
the Fourteenth
Amendment
support such a construction. Instead, use of the phrase "within
its jurisdiction" confirms the understanding that the Fourteenth
Amendment's
protection extends to anyone, citizen or stranger, who is subject to
the laws of a State, and reaches into every corner of a State's
territory. Pp. 210-216.
(b)
The discrimination contained in the Texas statute cannot be
considered rational unless it furthers some substantial goal of the
State. Although undocumented resident aliens cannot be treated as a
"suspect class," and although education is not a
"fundamental right," so as to require the State to justify
the statutory classification by showing that it serves a compelling
governmental interest, nevertheless the Texas statute imposes a
lifetime hardship on a discrete class of children not accountable for
their disabling status. These children can neither affect their
parents' conduct nor their own undocumented status. The deprivation
[p203]
of public education is not like the deprivation of some other
governmental benefit. Public education has a pivotal role in
maintaining the fabric of our society and in sustaining our political
and cultural heritage; the deprivation of education takes an
inestimable toll on the social, economic, intellectual, and
psychological wellbeing of the individual, and poses an obstacle to
individual achievement. In determining the rationality of the Texas
statute, its costs to the Nation and to the innocent children may
properly be considered. Pp. 216-224.
(c)
The undocumented status of these children vel
non does not
establish a sufficient rational basis for denying them benefits that
the State affords other residents. It is true that, when faced with
an equal protection challenge respecting a State's differential
treatment of aliens, the courts must be attentive to congressional
policy concerning aliens. But in the area of special constitutional
sensitivity presented by these cases, and in the absence of any
contrary indication fairly discernible in the legislative record, no
national policy is perceived that might justify the State in denying
these children an elementary education. Pp. 224-226.
(d)
Texas' statutory classification cannot be sustained as furthering its
interest in the "preservation of the state's limited resources
for the education of its lawful residents." While the State
might have an interest in mitigating potentially harsh economic
effects from an influx of illegal immigrants, the Texas statute does
not offer an effective method of dealing with the problem. Even
assuming that the net impact of illegal aliens on the economy is
negative, charging tuition to undocumented children constitutes an
ineffectual attempt to stem the tide of illegal immigration, at least
when compared with the alternative of prohibiting employment of
illegal aliens. Nor is there any merit to the suggestion that
undocumented children are appropriately singled out for exclusion
because of the special burdens they impose on the State's ability to
provide high-quality public education. The record does not show that
exclusion of undocumented children is likely to improve the overall
quality of education in the State. Neither is there any merit to the
claim that undocumented children are appropriately singled out
because their unlawful presence within the United States renders them
less likely than other children to remain within the State's
boundaries and to put their education to productive social or
political use within the State. Pp. 227-230.
No.
80-1638, 628 F.2d 448, and No. 80-1934, affirmed.
BRENNAN,
J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN,
POWELL, and STEVENS, JJ., joined. MARSHALL, J.,post,
p. 230, BLACKMUN, J., post,
p. 231, and POWELL, J., post,
p. 236, filed concurring opinions. BURGER, C.J., filed a dissenting
opinion, in which WHITE, REHNQUIST, and O'CONNOR, JJ., joined,post,
p. 242. [p205]
BRENNAN,
J., Opinion of the Court
SUPREME
COURT OF THE UNITED STATES
------------------------------------------------------------------------
457
U.S. 202
Plyler
v. Doe
APPEAL
FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
------------------------------------------------------------------------
No.
80-1538 Argued: December 1, 1981 --- Decided: June 15, 1982 [*]
------------------------------------------------------------------------
JUSTICE
BRENNAN delivered the opinion of the Court.
The
question presented by these cases is whether, consistent with the
Equal Protection Clause of the Fourteenth
Amendment,
Texas may deny to undocumented school-age children the free public
education that it provides to children who are citizens of the United
States or legally admitted aliens.
I
Since
the late 19th century, the United States has restricted immigration
into this country. Unsanctioned entry into the United States is a
crime, 8
U.S.C. § 1325
and those who have entered unlawfully are subject to deportation, 8
U.S.C. §§ 1251
1252 (1976 ed. and Supp. IV). But despite the existence of these
legal restrictions, a substantial number of persons have succeeded in
unlawfully entering the United States, and now live within various
States, including the State of Texas.
In
May, 1975, the Texas Legislature revised its education laws to
withhold from local school districts any state funds for the
education of children who were not "legally admitted" into
the United States. The 1975 revision also authorized local school
districts to deny enrollment in their public schools to children not
"legally admitted" to the country. Tex. Educ.Code Ann.
§ 21.031 (Vernon Supp.1981).
[n1]
These cases involve constitutional challenges to those provisions.
[p206]
No.
8158Plyler v. Doe
This
is a class action, filed in the United States District Court for the
Eastern District of Texas in September, 1977, on behalf of certain
school-age children of Mexican origin residing in Smith County, Tex.,
who could not establish that they had been legally admitted into the
United States. The action complained of the exclusion of plaintiff
children from the public schools of the Tyler Independent School
District.
[n2]
The Superintendent and members of the Board of Trustees of the School
District were named as defendants; the State of Texas intervened as a
party-defendant. After certifying a class consisting of all
undocumented school-age children of Mexican origin residing within
the School District, the District Court preliminarily enjoined
defendants from denying a free education to members of the plaintiff
class. In December, 1977, the court conducted an extensive hearing on
plaintiffs' motion for permanent injunctive relief. [p207]
In
considering this motion, the District Court made extensive findings
of fact. The court found that neither § 21.031 nor the
School District policy implementing it had "either the purpose
or effect of keeping illegal aliens out of the State of Texas."
458 F.Supp. 569, 575 (1978). Respecting defendants' further claim
that § 21.031 was simply a financial measure designed to
avoid a drain on the State's fisc, the court recognized that the
increases in population resulting from the immigration of Mexican
nationals into the United States had created problems for the public
schools of the State, and that these problems were exacerbated by the
special educational needs of immigrant Mexican children. The court
noted, however, that the increase in school enrollment was primarily
attributable to the admission of children who were legal residents.
Id.
at 575-576. It also found that, while the "exclusion of all
undocumented children from the public schools in Texas would
eventually result in economies at some level," id.
at 576, funding from both the State and Federal Governments was based
primarily on the number of children enrolled. In net effect, then,
barring undocumented children from the schools would save money, but
it would "not necessarily" improve "the quality of
education." Id.
at 577. The court further observed that the impact of § 21.031
was borne primarily by a very small subclass of illegal aliens,
"entire families who have migrated illegally and -- for all
practical purposes -- permanently to the United States." Id.
at 578.
[n3]
Finally,
the court noted that, under current laws and practices, "the
illegal alien of today may well be the legal alien of tomorrow,"
[n4]
and that, without an education, these undocumented [p208]
children,
[a]lready
disadvantaged as a result of poverty, lack of English-speaking
ability, and undeniable racial prejudices, . . . will become
permanently locked into the lowest socio-economic class.
Id.
at 577.
The
District Court held that illegal aliens were entitled to the
protection of the Equal Protection Clause of the Fourteenth
Amendment,
and that § 21.031
violated that Clause. Suggesting that
the
state's exclusion of undocumented children from its public schools .
. . may well be the type of invidiously motivated state action for
which the suspect classification doctrine was designed,
the
court held that it was unnecessary to decide whether the statute
would survive a "strict scrutiny" analysis because, in any
event, the discrimination embodied in the statute was not supported
by a rational basis.
Id.
at 585. The District Court also concluded that the Texas statute
violated the Supremacy Clause.
[n5]
Id.
at 590-592.
The
Court of Appeals for the Fifth Circuit upheld the District Court's
injunction. 628 F.2d 448 (1980). The Court of Appeals held that the
District Court had erred in finding the Texas statute preempted by
federal law.
[n6]
With respect to [p209]
equal protection, however, the Court of Appeals affirmed in all
essential respects the analysis of the District Court, id.
at 454-458, concluding that § 21.031 was "constitutionally
infirm regardless of whether it was tested using the mere rational
basis standard or some more stringent test," id.
at 458. We noted probable jurisdiction. 451
U.S. 968
(1981).
No.
8194In re Alien Children Education Litigation
During
1978 and 1979, suits challenging the constitutionality of 21.031 and
various local practices undertaken on the authority of that provision
were filed in the United States District Courts for the Southern,
Western, and Northern Districts of Texas. Each suit named the State
of Texas and the Texas Education Agency as defendants, along with
local officials. In November, 1979, the Judicial Panel on
Multidistrict Litigation, on motion of the State, consolidated the
claims against the state officials into a single action to be heard
in the District Court for the Southern District of Texas. A hearing
was conducted in February and March, 1980. In July, 1980, the court
entered an opinion and order holding that § 21.031 violated
the Equal Protection Clause of the Fourteenth
Amendment.
In
re Alien Children Education Litigation,
501 F.Supp. 544.
[n7]
The court held that
the
absolute deprivation of education should trigger strict judicial
scrutiny, particularly when the absolute deprivation is the result of
complete inability to pay for the desired benefit.
Id.
at 582. The court determined that the State's concern for fiscal
integrity was not a compelling state interest, id.
at 582-583;
that exclusion of these children had not been shown to be necessary
to improve education within the State, id.
at 583; and that the educational needs of the children statutorily
excluded were not different from the needs of children not excluded,
ibid.
The court therefore concluded that [p210]
§ 21.031 was not carefully tailored to advance the asserted
state interest in an acceptable manner.
Id.
at 583-584. While appeal of the District Court's decision was
pending, the Court of Appeals rendered its decision in No. 80-1538.
Apparently on the strength of that opinion, the Court of Appeals, on
February 23, 1981, summarily affirmed the decision of the Southern
District. We noted probable jurisdiction, 452
U.S. 937
(1981), and consolidated this case with No. 80-1538 for briefing and
argument.
[n8]
II
The
Fourteenth
Amendment
provides that
[n]o
State shall . . . deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction
the equal protection of the laws.
(Emphasis
added.) Appellants argue at the outset that undocumented aliens,
because of their immigration status, are not "persons within the
jurisdiction" of the State of Texas, and that they therefore
have no right to the equal protection of Texas law. We reject this
argument. Whatever his status under the immigration laws, an alien is
surely a "person" in any ordinary sense of that term.
Aliens,
even aliens whose presence in this country is unlawful, have long
been recognized as "persons" guaranteed due process of law
by the Fifth and Fourteenth
Amendments.
Shaughnessv
v. Mezei,
345
U.S. 206,
212 (1953); Wong
Wing v. United States,
163
U.S. 228,
238 (1896); Yick
Wo v. Hopkins,
118
U.S. 356,
369 (1886). Indeed, we have clearly held that the Fifth
Amendment
protects aliens whose presence in this country is unlawful from
invidious discrimination by the Federal Government. Mathews
v. Diaz,
426
U.S. 67,
77 (1976).
[n9]
[p211]
Appellants
seek to distinguish our prior cases, emphasizing that the Equal
Protection Clause directs a State to afford its protection to persons
within
its jurisdiction,
while the Due Process Clauses of the Fifth and Fourteenth
Amendments
contain no such assertedly limiting phrase.
In appellants' view, persons who have entered the United States
illegally are not "within the jurisdiction" of a State even
if they are present within a State's boundaries and subject to its
laws. Neither our cases nor the logic of the Fourteenth
Amendment
support that constricting construction of the phrase "within its
jurisdiction."
[n10]
We have never suggested that the class of persons who might avail
themselves of the equal protection guarantee is less than coextensive
with that entitled to due process. To the contrary, we have
recognized [p212]
that both provisions were fashioned to protect an identical class of
persons, and to reach every exercise of state authority.
The
Fourteenth
Amendment
to the Constitution is not confined to the protection of citizens. It
says:
Nor
shall any state deprive any person of life, liberty, or property
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
These
provisions are universal in their application, to all persons within
the territorial jurisdiction,
without regard to any differences of race, of color, or of
nationality, and the protection of the laws is a pledge of the
protection of equal laws.
Yick
Wo, supra, at
369 (emphasis added).
In
concluding that "all persons within the territory of the United
States," including aliens unlawfully present, may invoke the
Fifth and Sixth
Amendments
to challenge actions of the Federal Government,
we reasoned from the understanding that the Fourteenth
Amendment
was designed to afford its protection to all within the boundaries of
a State. Wong
Wing, supra,
at 238.
[n11]
Our cases applying the Equal Protection Clause reflect the same
territorial theme:
[n12]
[p213]
Manifestly,
the obligation of the State to give the protection of equal laws can
be performed only where its laws operate, that is, within its own
jurisdiction. It is there that the equality of legal right must be
maintained. That obligation is imposed by the Constitution upon the
States severally as governmental entities, each responsible for its
own laws establishing the rights and duties of persons within its
borders.
Missouri
ex rel. Gaines v. Canada,
305
U.S. 337,
350 (1938).
There
is simply no support for appellants' suggestion that "due
process" is somehow of greater stature than "equal
protection," and therefore available to a larger class of
persons. To the
contrary, each aspect of the Fourteenth
Amendment
reflects an elementary limitation on state power.
To permit a State to employ the phrase "within its jurisdiction"
in order to identify subclasses of persons whom it would define as
beyond its jurisdiction, thereby relieving itself of the obligation
to assure that its laws are designed and applied equally to those
persons, would undermine the principal purpose for which the Equal
Protection Clause was incorporated in the Fourteenth
Amendment.
The Equal Protection Clause was intended to work nothing less than
the abolition of all caste-based and invidious class-based
legislation. That objective is fundamentally at odds with the power
the State asserts here to classify persons subject to its laws as
nonetheless excepted from its protection. [p214]
Although
the congressional debate concerning § 1 of the Fourteenth
Amendment
was limited, that debate clearly confirms the understanding that the
phrase "within its jurisdiction" was intended in a broad
sense to offer the guarantee of equal protection to all within a
State's boundaries, and to all upon whom the State would impose the
obligations of its laws. Indeed,
it appears from those debates that Congress, by using the phrase
"person within its jurisdiction," sought expressly to
ensure that the equal protection of the laws was provided to the
alien population. Representative Bingham reported to the House the
draft resolution of the Joint Committee of Fifteen on Reconstruction
(H.R. 63) that was to become the Fourteenth
Amendment.
[n13]
Cong.Globe, 39th Cong., 1st Sess., 1033 (1866). Two days later,
Bingham posed the following question in support of the resolution:
Is
it not essential to the unity of the people that the citizens of each
State shall be entitled to all the privileges and immunities of
citizens in the several States? Is it not essential to the unity of
the Government and the unity of the people that all persons, whether
citizens or strangers, within this land,
shall have equal protection in every State in this Union in the
rights of life and liberty and property?
Id.
at 1090.
Senator
Howard, also a member of the Joint Committee of Fifteen, and the
floor manager of the Amendment in the Senate, was no less explicit
about the broad objectives of the Amendment, and the intention to
make its provisions applicable to all who "may happen to be"
within the jurisdiction of a State: [p215]
The
last two clauses of the first section of the amendment disable a
State from depriving not merely a citizen of the United States, but
any
person, whoever he may be,
of life, liberty, or property without due process of law, or from
denying to him the equal protection of the laws of the State. This
abolishes all class legislation in the States and does away with the
injustice of subjecting one caste of persons to a code not applicable
to another. . . . It will, if adopted by the States, forever disable
every one of them from passing laws trenching upon those fundamental
rights and privileges which pertain to citizens of the United States,
and
to all person who may happen to be within their jurisdiction.
Id.
at 2766 (emphasis added).
Use
of the phrase "within its jurisdiction" thus does not
detract from, but rather confirms, the understanding that the
protection of the Fourteenth
Amendment
extends to anyone, citizen or stranger, who is
subject to the laws of a State, and reaches into every corner of a
State's territory. That
a person's initial entry into a State, or into the United States, was
unlawful, and that he may for that reason be expelled, cannot negate
the simple fact of his presence within the State's territorial
perimeter. Given
such presence, he is subject to the full range of obligations imposed
by the State's civil and criminal laws. And until he leaves the
jurisdiction -- either voluntarily, or involuntarily in accordance
with the Constitution and laws of the United States -- he is entitled
to the equal protection of the laws that a State may choose to
establish.
Our
conclusion that the illegal aliens who are plaintiffs in these cases
may claim the benefit of the Fourteenth
Amendment's
guarantee of equal protection only begins the inquiry. The more
difficult question is whether the Equal Protection Clause has been
violated by the refusal of the State of Texas to reimburse local
school boards for the education of children who cannot demonstrate
that their presence within the [p216]
United States is lawful, or by the imposition by those school boards
of the burden of tuition on those children. It is to this question
that we now turn.
III
The
Equal Protection Clause directs that "all persons similarly
circumstanced shall be treated alike." F.
S. Royster Guano Co. v. Virginia,
253
U.S. 412,
415 (1920). But so too, "[t]he Constitution does not require
things which are different in fact or opinion to be treated in law as
though they were the same." Tigner
v. Texas, 310
U.S. 141,
147 (1940). The initial discretion to determine what is "different"
and what is "the same" resides in the legislatures of the
States.
A legislature must have substantial latitude to establish
classifications that roughly approximate the nature of the problem
perceived, that accommodate competing concerns both public and
private, and that account for limitations on the practical ability of
the State to remedy every ill.
In
applying the Equal Protection Clause to most forms of state action,
we thus seek only the assurance that the classification at issue
bears some fair relationship to a legitimate public purpose.
But
we would not be faithful to our obligations under the Fourteenth
Amendment
if we applied so deferential a standard to every classification. The
Equal Protection Clause was intended as a restriction on state
legislative action inconsistent with elemental constitutional
premises. Thus, we have treated as presumptively invidious those
classifications that disadvantage a "suspect class,"
[n14]
or that impinge upon [p217]
the exercise of a "fundamental right."
[n15]
With respect to such classifications, it is appropriate to enforce
the mandate of equal protection by requiring the State to demonstrate
that its classification has been precisely tailored to serve a
compelling governmental interest. In addition, we have recognized
that certain forms of legislative classification, while not facially
invidious, nonetheless give rise to recurring constitutional
difficulties; in these limited circumstances,
we have sought the assurance that the classification reflects a
reasoned judgment consistent with the ideal of equal protection by
inquiring whether it may fairly be viewed as furthering a [p218]
substantial interest of the State.
[n16]
We turn to a consideration of the standard appropriate for the
evaluation of § 21.031.
A
Sheer
incapability or lax enforcement of the laws barring entry into this
country, coupled with the failure to establish an effective bar to
the employment of undocumented aliens, has resulted in the creation
of a substantial "shadow population" of illegal migrants --
numbering in the millions -- within our borders.
[n17]
This situation raises the specter of a permanent [p219]
caste of undocumented resident aliens, encouraged by some to remain
here as a source of cheap labor, but nevertheless denied the benefits
that our society makes available to citizens and lawful residents.
[n18]
The existence of such an underclass presents most difficult problems
for a Nation that prides itself on adherence to principles of
equality under law.
[n19]
The
children who are plaintiffs in these cases are special members of
this underclass. Persuasive arguments support the view that a State
may withhold its beneficence from those whose very presence within
the United States is the product of their own unlawful conduct. These
arguments do not apply [p220]
with the same force to classifications imposing disabilities on the
minor children of such illegal entrants. At
the least, those who elect to enter our territory by stealth and in
violation of our law should be prepared to bear the consequences,
including, but not limited to, deportation.
But the children of those
illegal entrants are not comparably situated. Their "parents
have the ability to conform their conduct to societal norms,"
and presumably the ability to remove themselves from the State's
jurisdiction; but the children who are plaintiffs in these cases "can
affect neither their parents' conduct nor their own status."
Trimble
v. Gordon, 430
U.S. 762,
770 (1977). Even if the State found it expedient to control the
conduct of adults by acting against their children,
legislation directing the onus of a parent's misconduct against his
children does not comport with fundamental conceptions of justice.
[V]isiting
. . . condemnation on the head of an infant is illogical and unjust.
Moreover, imposing disabilities on the . . . child is contrary to the
basic concept
of our system that legal burdens should bear some relationship to
individual responsibility or wrongdoing. Obviously, no child is
responsible for his birth, and penalizing the . . . child is an
ineffectual -- as well as unjust -- way of deterring the parent.
Weber
v. Aetna Casualty & Surety Co.,
406
U.S. 164,
175 (1972) (footnote omitted).
Of
course, undocumented status is not irrelevant to any proper
legislative goal. Nor is undocumented status an absolutely immutable
characteristic, since it is the product of conscious, indeed
unlawful, action. But § 21.031 is directed against
children, and imposes its discriminatory burden on the basis of a
legal characteristic over which children can have little control. It
is thus difficult to conceive of a rational justification for
penalizing these children for their presence within the United
States. Yet that appears to be precisely the effect of § 21.031.
[p221]
Public
education is not a "right" granted to individuals by the
Constitution. San
Antonio Independent School Dist. v. Rodriguez,
411
U.S. 1"]411
U.S. 1,
35 (1973). But neither is it merely some governmental "benefit"
indistinguishable from other forms of social welfare legislation.
Both the importance of education in maintaining our basic
institutions and the lasting impact of its deprivation on the life of
the child mark the distinction. The "American people have always
regarded education and [the] acquisition of knowledge as matters of
supreme importance." 411
U.S. 1,
35 (1973). But neither is it merely some governmental "benefit"
indistinguishable from other forms of social welfare legislation.
Both the importance of education in maintaining our basic
institutions and the lasting impact of its deprivation on the life of
the child mark the distinction. The "American people have always
regarded education and [the] acquisition of knowledge as matters of
supreme importance." Meyer
v. Nebraska,
262
U.S. 390"]262
U.S. 390,
400 (1923). We have recognized "the public schools as a most
vital civic institution for the preservation of a democratic system
of government," 262
U.S. 390,
400 (1923). We have recognized "the public schools as a most
vital civic institution for the preservation of a democratic system
of government," Abington
School District v. Schempp,
374
U.S. 203"]374
U.S. 203,
230 (1963) (BRENNAN, J., concurring), and as the primary vehicle for
transmitting "the values on which our society rests." 374
U.S. 203,
230 (1963) (BRENNAN, J., concurring), and as the primary vehicle for
transmitting "the values on which our society rests."
Ambach
v. Norwick,
441
U.S. 68,
76 (1979).
[A]s
. . . pointed out early in our history, . . . some degree of
education is necessary to prepare citizens to participate effectively
and intelligently in our open political system if we are to preserve
freedom and independence.
Wisconsin
v. Yoder, 406
U.S. 205,
221 (1972). And these historic
perceptions
of the public schools as inculcating fundamental values necessary to
the maintenance of a democratic political system have been confirmed
by the observations of social scientists.
Ambach
v. Norwick, supra,
at 77. In addition, education provides the basic tools by which
individuals might lead economically productive lives to the benefit
of us all.
In sum, education has a fundamental role in maintaining the fabric of
our society. We cannot ignore the significant social costs borne by
our Nation when select groups are denied the means to absorb the
values and skills upon which our social order rests.
In
addition to the pivotal role of education in sustaining our political
and cultural heritage, denial of education to some isolated group of
children poses an affront to one of the goals [p222]
of the Equal Protection Clause: the abolition of governmental
barriers presenting unreasonable obstacles to advancement on the
basis of individual merit. Paradoxically, by depriving the children
of any disfavored group of an education, we foreclose the means by
which that group might raise the level of esteem in which it is held
by the majority. But more directly, "education prepares
individuals to be
self-reliant and self-sufficient
participants in society." Wisconsin
v. Yoder, supra,
at 406
U.S. 221"]221.
Illiteracy is an enduring disability. The inability to read and write
will handicap the individual deprived of a basic education each and
every day of his life. The inestimable toll of that deprivation on
the social, economic, intellectual, and psychological wellbeing of
the individual, and the obstacle it poses to individual achievement,
make it most difficult to reconcile the cost or the principle of a
status-based denial of basic education with the framework of equality
embodied in the Equal Protection Clause.
[n20]
What we said 28 years ago in 221. Illiteracy is an enduring
disability. The inability to read and write will handicap the
individual deprived of a basic education each and every day of his
life. The inestimable toll of that deprivation on the social,
economic, intellectual, and psychological wellbeing of the
individual, and the obstacle it poses to individual achievement, make
it most difficult to reconcile the cost or the principle of a
status-based denial of basic education with the framework of equality
embodied in the Equal Protection Clause.
[n20]
What we said 28 years ago in Brown
v. Board of Education,
347
U.S. 483
(1954), still holds true:
Today,
education is perhaps the most important function of state and local
governments. Compulsory school [p223]
attendance laws and the great expenditures for education both
demonstrate our recognition of the importance of education to our
democratic society. It is required in the performance of our most
basic public responsibilities, even service in the armed forces. It
is the very foundation of good citizenship. Today it is a principal
instrument in awakening the child to cultural values, in preparing
him for later professional training, and in helping him to adjust
normally to his environment. In these days, it is doubtful that any
child may reasonably be expected to succeed in life if he is denied
the opportunity of an education. Such an opportunity, where the state
has undertaken to provide it, is a right which must be made available
to all on equal terms.
Id.
at 493.
B
These
well-settled principles allow us to determine the proper level of
deference to be afforded § 21.031. Undocumented aliens
cannot be treated as a suspect class, because their presence in this
country in violation of federal law is not a "constitutional
irrelevancy." Nor is education a fundamental right; a State need
not justify by compelling necessity every variation in the manner in
which education is provided to its population.
See
San Antonio Independent School Dist. v. Rodriguez, supra,
at 28-39. But more is involved in these cases than the abstract
question whether § 21.031 discriminates against a suspect
class, or whether education is a fundamental right. Section 21.031
imposes a lifetime hardship on a discrete class of children not
accountable for their disabling status. The stigma of illiteracy will
mark them for the rest of their lives.
By denying these children a basic education, we deny them the ability
to live within the structure of our civic institutions, and foreclose
any realistic possibility that they will contribute in even the
smallest way to the progress of our Nation.
In determining [p224]
the rationality of § 21. 031, we may appropriately take
into account its costs to the Nation and to the innocent children who
are its victims. In light of these countervailing costs, the
discrimination contained in § 21.031 can hardly be
considered rational unless it furthers some substantial goal of the
State.
IV
It
is the State's principal argument, and apparently the view of the
dissenting Justices, that the undocumented status of these children
vel
non
establishes a sufficient rational basis for denying them benefits
that a State might choose to afford other residents. The State notes
that, while other aliens are admitted "on an equality of legal
privileges with all citizens under nondiscriminatory laws,"
Takahashi
v. Fish & Game Comm'n,
334
U.S. 410,
420 (1948), the asserted right of these children to an education can
claim no implicit congressional imprimatur.
[n21]
Indeed, in the State's view, Congress' apparent disapproval of the
presence of these children within the United States, and the evasion
of the federal regulatory program that is the mark of undocumented
status, provides authority for its decision to impose upon them
special disabilities.
Faced with an equal protection challenge respecting the treatment of
aliens, we agree that the courts must be attentive to congressional
policy; the exercise of congressional power might well affect the
State's prerogatives to afford differential treatment to a particular
class of aliens. But we are unable to find in the congressional
immigration scheme any statement of policy that might weigh
significantly [p225]
in arriving at an equal protection balance concerning the State's
authority to deprive these children of an education.
This
is a snub of the 10th amendment, which reserves powers not explicitly
given the fed, to the states.
The
Constitution grants Congress the power to "establish an uniform
Rule of Naturalization." Art. I., § 8, cl. 4. Drawing
upon this power, upon its plenary authority with respect to foreign
relations and international commerce, and upon the inherent power of
a sovereign to close its borders, Congress
has developed a complex scheme governing admission to our Nation and
status within our borders. See
Mathews v. Diaz,
426
U.S. 67
(1976); Harisiades
v. Shaughnessy,
342
U.S. 580,
588-589 (1952). The
obvious need for delicate policy judgments has counseled the Judicial
Branch to avoid intrusion into this field. Mathews,
supra, at 81.
But this traditional caution does not persuade us that unusual
deference must be shown the classification embodied in § 21.031.
The States enjoy no power with respect to the classification of
aliens. See
Hines v. Davidowitz,
312
U.S. 52
(1941). This power is
"committed to the political branches of the Federal Government."
Mathews,
426 U.S. at 81. Although
it is "a routine and normally legitimate part" of the
business of the Federal Government to classify on the basis of alien
status, id.
at 85, and to "take into account the character of the
relationship between the alien and this country," id.
at 80, only rarely are such matters relevant to legislation by a
State. See
Id.
at 84-85; Nyquist
v. Mauclet,
432
U.S. 1,
7, n. 8 (1977)
As
we recognized in De
Canas v. Bica,
424
U.S. 351
(1976), the States do have some authority to act with respect to
illegal aliens, at least where such action mirrors federal objectives
and furthers a legitimate state goal. In De
Canas,
the State's program reflected Congress' intention to bar from
employment all aliens except those possessing a grant of permission
to work in this country.
Id.
at 361. In contrast, there is no indication that the disability
imposed by § 21.031 corresponds to any identifiable
congressional policy. The [p226]
State does not claim that the conservation of state educational
resources was ever a congressional concern in restricting
immigration. More importantly, the classification reflected in
§ 21.031 does not operate harmoniously within the federal
program.
To
be sure, like all persons who have entered the United States
unlawfully, these children are subject to deportation. 8
U.S.C. §§ 1251
1252 (1976 ed. and Supp. IV). But there is no assurance that a child
subject to deportation will ever be deported.
An illegal entrant might be granted federal permission to continue to
reside in this country, or even to become a citizen. See,
e.g., 8
U.S.C. §§ 1252
1253(h), 1254 (1976 ed. and Supp. IV).
In light of the discretionary federal power to grant relief from
deportation, a State cannot realistically determine that any
particular undocumented child will in fact be deported until after
deportation proceedings have been completed.
It would, of course, be most difficult for the State to justify a
denial of education to a child enjoying an inchoate federal
permission to remain.
We
are reluctant to impute to Congress the intention to withhold from
these children, for so long as they are present in this country
through no fault of their own, access to a basic education. In other
contexts, undocumented status, coupled with some articulable federal
policy, might enhance state authority with respect to the treatment
of undocumented aliens. But in the area of special constitutional
sensitivity presented by these cases, and in the absence of any
contrary indication fairly discernible in the present legislative
record, we perceive no national policy that supports the State in
denying these children an elementary education.
The State may borrow the federal classification. But to justify its
use as a criterion for its own discriminatory policy, the State must
demonstrate that the classification is reasonably adapted to "the
purposes for which the state desires to use it."
Oyama
v. California,
332
U.S. 633,
664-665 (1948) (Murphy, J., concurring) (emphasis added). We
therefore turn to the state objectives that are said to support
§ 21.031. [p227]
V
Appellants
argue that the classification at issue furthers an interest in the
"preservation of the state's limited resources for the education
of its lawful residents."
[n22]
Brief for Appellants 26. Of course, a concern for the preservation of
resources, standing alone, can hardly justify the classification used
in allocating those resources. Graham
v. Richardson,
403
U.S. 365,
374-375 (1971). The
State must do more than justify its classification with a concise
expression of an intention to discriminate. Examining
Board v. Flores de Otero,
426
U.S. 572,
605 (1976). Apart from the asserted state prerogative to act against
undocumented children solely on the basis of their undocumented
status -- an asserted prerogative that carries only minimal force in
the circumstances of these cases -- we discern three colorable state
interests that might support § 21.031. [p228]
First,
appellants appear to suggest that the State may seek to protect
itself from an influx of illegal immigrants. While a State might have
an interest in mitigating the potentially harsh economic effects of
sudden shifts in population,
[n23]
§ 21.031 hardly offers an effective method of dealing with
an urgent demographic or economic problem. There
is no evidence in the record suggesting that illegal entrants impose
any significant burden on the State's economy. To the contrary, the
available evidence suggests that illegal aliens underutilize public
services, while contributing their labor to the local economy and tax
money to the state fisc.
458 F.Supp. at 578; 501 F.Supp. at 570-571. The dominant incentive
for illegal entry into the State of Texas is the availability of
employment; few if any illegal immigrants come to this country, or
presumably to the State of Texas, in order to avail themselves of a
free education.
[n24]
Thus, even making the doubtful assumption that the net impact of
illegal aliens on the economy of the State is negative, we think it
clear that "[c]harging tuition to undocumented children
constitutes a ludicrously ineffectual attempt to stem the tide of
illegal immigration," at least when compared with the
alternative of [p229]
prohibiting the employment of illegal aliens. 458 F.Supp. at 585. See
628 F.2d at 461; 501 F.Supp. at 579, and n. 88.
Second,
while it is apparent that a State may "not . . . reduce
expenditures for education by barring [some arbitrarily chosen class
of] children from its schools," Shapiro
v. Thompson,
394
U.S. 618,
633 (1969), appellants suggest that undocumented children are
appropriately singled out for exclusion because of the special
burdens they impose on the State's ability to provide high-quality
public education. But the record in no way supports the claim that
exclusion of undocumented children is likely to improve the overall
quality of education in the State.
[n25]
As the District Court in No. 801934 noted, the State failed to offer
any
credible
supporting evidence that a proportionately small diminution of the
funds spent on each child [which might result from devoting some
state funds to the education of the excluded group] will have a grave
impact on the quality of education.
501
F.Supp. at 583. And, after reviewing the State's school financing
mechanism, the District Court in No. 80-1538 concluded that barring
undocumented children from local schools would not necessarily
improve the quality of education provided in those schools. 458
F.Supp. at 577.
Of course, even if improvement in the quality of education were a
likely result of barring some number
of children from the schools of the State, the State must support its
selection of this
group as the appropriate target for exclusion.
In terms of educational cost and need, however, undocumented children
are "basically indistinguishable" from legally resident
alien children. Id.
at 589; 501 F.Supp. at 583, and n. 104.
Finally,
appellants suggest that undocumented children are appropriately
singled out because their unlawful presence [p230]
within the United States renders them less likely than other children
to remain within the boundaries of the State, and to put their
education to productive social or political use within the State.
Even assuming that such an interest is legitimate, it is an interest
that is most difficult to quantify. The State has no assurance that
any child, citizen or not, will employ the education provided by the
State within the confines of the State's borders.
In any event, the record is clear that many of the undocumented
children disabled by this classification will remain in this country
indefinitely, and that some will become lawful residents or citizens
of the United States. It is difficult to understand precisely what
the State hopes to achieve by promoting the creation and perpetuation
of a subclass of illiterates within our boundaries, surely adding to
the problems and costs of unemployment, welfare, and crime.
It is thus clear that whatever savings might be achieved by denying
these children an education, they are wholly insubstantial in light
of the costs involved to these children, the State, and the Nation.
VI
If
the State is to deny a discrete group of innocent children the free
public education that it offers to other children residing within its
borders, that denial must be justified by a showing that it furthers
some substantial state interest. No such showing was made here.
Accordingly, the judgment of the Court of Appeals in each of these
cases is
Affirmed.
*
Together with No. 80-1934, Texas et al. v. Certain Named and Unnamed
Undocumented Alien Children et al., also on appeal from the same
court.
1.
That section provides, in pertinent part:
(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 scholastic year
shall be entitled to 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 September of the year in
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 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 aliens and who are over five and not over 21
years of age at the beginning of the scholastic year if such person
or his parent, guardian or person having lawful control resides
within the school district.
2.
Despite the enactment of § 21.031 in 1975, the School
District had continued to enroll undocumented children free of charge
until the 1977-1978 school year. In July, 1977, it adopted a policy
requiring undocumented children to pay a "full tuition fee"
in order to enroll. Section 21.031 had not provided a definition of
"a legally admitted alien." Tyler offered the following
clarification:
A
legally admitted alien is one who has documentation that he or she is
legally in the United States, or a person who is in the process of
securing documentation from the United States Immigration Service,
and the Service will state that the person is being processed and
will be admitted with proper documentation.
App.
to Juris.Statement in No. 80-1538, p. A-38.
3.
The court contrasted this group with those illegal aliens who entered
the country alone in order to earn money to send to their dependents
in Mexico, and who, in many instances, remained in this country for
only a short period of time. 458 F.Supp. at 578.
4.
Plaintiffs' expert, Dr. Gilbert Cardenas, testified that "fifty
to sixty per cent . . . of current legal alien workers were formerly
illegal aliens." Id.
at 577. A defense witness, Rolan Heston, District Director of the
Houston District of the Immigration and Naturalization Service,
testified that
undocumented
children can and do live in the United States for years, and adjust
their status through marriage to a citizen or permanent resident.
Ibid.
The court also took notice of congressional proposals to "legalize"
the status of many unlawful entrants. Id.
at 577-578. See
also n.
17, infra.
5.
The court found § 21.031 inconsistent with the scheme of
national regulation under the Immigration and Nationality Act, and
with federal laws pertaining to funding and discrimination in
education. The court distinguished De Canas v. Bica, 424 U.S. 351
(1976), by emphasizing that the state bar on employment of illegal
aliens involved in that case mirrored precisely the federal policy,
of protecting the domestic labor market, underlying the immigration
laws. The court discerned no express federal policy to bar illegal
immigrants from education. 458 F.Supp. at 590-592.
6.
The Court of Appeals noted that De Canas v. Bica, supra, had not
foreclosed all state regulation with respect to illegal aliens, and
found no express or implied congressional policy favoring the
education of illegal aliens. The court therefore concluded that there
was no preemptive conflict between state and federal law. 628 F.2d at
451-454.
7.
The court concluded that § 21.031 was not preempted by
federal laws or international agreements. 501 F.Supp. at 584-596.
8.
Appellees in both cases continue to press the argument that § 21.031
is preempted by federal law and policy. In light of our disposition
of the Fourteenth Amendment issue, we have no occasion to reach this
claim.
9.
It would be incongruous to hold that the United States, to which the
Constitution assigns a broad authority over both naturalization and
foreign affairs, is barred from invidious discrimination with respect
to unlawful aliens, while exempting the States from a similar
limitation. See 426 U.S. at 84-86.
10.
Although we have not previously focused on the intended meaning of
this phrase, we have had occasion to examine the first sentence of
the Fourteenth Amendment, which provides that "[a]ll persons
born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States. . . ."
(Emphasis added.)
Justice Gray, writing for the Court in United States v. Wong Kim Ark,
169 U.S. 649 (1898), detailed at some length the history of the
Citizenship Clause, and the predominantly geographic sense in which
the term "jurisdiction" was used. He further noted that it
was
impossible
to construe the words "subject to the jurisdiction thereof,"
in the opening sentence [of the Fourteenth
Amendment],
as less comprehensive than the words "within its jurisdiction,"
in the concluding sentence of the same section; or to hold that
persons "within the jurisdiction" of one of the States of
the Union are not "subject to the jurisdiction of the United
States."
Id.
at 687.
Justice
Gray concluded that
[e]very
citizen or subject of another country, while domiciled here, is
within the allegiance and the protection, and consequently subject to
the jurisdiction, of the United States.
Id.
at 693. As one early commentator noted, given the historical emphasis
on geographic territoriality, bounded only, if at all, by principles
of sovereignty and allegiance, no plausible distinction with respect
to Fourteenth
Amendment
"jurisdiction" can be drawn between resident aliens whose
entry into the United States was lawful, and resident aliens whose
entry was unlawful. See
C. Bouve, Exclusion and Expulsion of Aliens in the United States
425-427 (1912).
11.
In his separate opinion, Justice Field addressed the relationship
between the Fifth and Fourteenth Amendments:
The
term "person," used in the Fifth
Amendment,
is broad enough to include any and every human being within the
jurisdiction of the republic. A resident, alien born, is entitled to
the same protection under the laws that a citizen is entitled to. He
owes obedience to the laws of the country in which he is domiciled,
and, as a consequence, he is entitled to the equal protection of
those laws. . . . The contention that persons within the territorial
jurisdiction of this republic might be beyond the protection of the
law was heard with pain on the argument at the bar -- in face of the
great constitutional amendment which declares that no State shall
deny to any person within its jurisdiction the equal protection of
the laws.
Wong
Wing v. United States,
163 U.S. at 242-243 (concurring in part and dissenting in part).
12.
Leng May Ma v. Barber, 357 U.S. 185 (1958), relied on by appellants,
is not to the contrary. In that case, the Court held, as a matter of
statutory construction, that an alien paroled into the United States
pursuant to 212(d)(5) of the Immigration and Nationality Act, 8
U.S.C. 1182(d)(5) (1952 ed.), was not "within the United States"
for the purpose of availing herself of § 243(h), which
authorized the withholding of deportation in certain circumstance.
The conclusion reflected the longstanding distinction between
exclusion proceedings, involving the determination of admissibility,
and deportation proceedings. The undocumented children who are
appellees here, unlike the parolee in Leng May Ma, supra, could
apparently be removed from the country only pursuant to deportation
proceedings. 8 U.S.C. § 1251(a)(2). See 1A C. Gordon &
H. Rosenfield, Immigration Law and Procedure § 3.16b, p.
3-161 (1981).
13.
Representative Bingham's views are also reflected in his comments on
the Civil Rights Bill of 1866. He repeatedly referred to the need to
provide protection, not only to the freedmen, but to "the alien
and stranger," and to "refugees . . . and all men."
Cong.Globe, 39th Cong., 1st Sess., 1292 (1866).
14.
Several formulations might explain our treatment of certain
classifications as "suspect." Some classifications are more
likely than others to reflect deep-seated prejudice, rather than
legislative rationality in pursuit of some legitimate objective.
Legislation predicated on such prejudice is easily recognized as
incompatible with the constitutional understanding that each person
is to be judged individually and is entitled to equal justice under
the law.
Classifications treated as suspect tend to be irrelevant to any
proper legislative goal.
See McLaughlin v. Florida, 379 U.S. 184, 192 (1964); Hirabayashi v.
United States, 320 U.S. 81, 100 (1943). Finally, certain groups,
indeed largely the same groups, have historically been "relegated
to such a position of political powerlessness as to command
extraordinary protection from the majoritarian political process."
San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28
(1973); Graham v. Richardson, 403 U.S. 365, 372 (1971); see United
States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4 (1938).
The experience of our Nation has shown that prejudice may manifest
itself in the treatment of some groups. Our response to that
experience is reflected in the Equal Protection Clause of the
Fourteenth Amendment.
Legislation imposing special disabilities upon groups disfavored by
virtue of circumstances beyond their control suggests the kind of
"class or caste" treatment that the Fourteenth Amendment
was designed to abolish.
15.
In determining whether a class-based denial of a particular right is
deserving of strict scrutiny under the Equal Protection Clause, we
look to the Constitution to see if the right infringed has its
source, explicitly or implicitly, therein. But we have also
recognized the fundamentality of participation in state "elections
on an equal basis with other citizens in the jurisdiction," Dunn
v. Blumstein, 405 U.S. 330, 336 (1972), even though "the right
to vote, per se, is not a constitutionally protected right." San
Antonio Independent School Dist., supra, at 35, n. 78. With respect
to suffrage, we have explained the need for strict scrutiny as
arising from the significance of the franchise as the guardian of all
other rights. See Harper v. Virginia Bd. of Elections, 383 U.S. 663,
667 (1966); Reynolds v. Sims, 377 U.S. 533, 562 (1964); Yick Wo v.
Hopkins, 118 U.S. 356, 370 (1886).
16.
See Craig v. Boren, 429 U.S. 190 (1976); Lalli v. Lalli, 439 U.S. 259
(1978). This technique of "intermediate" scrutiny permits
us to evaluate the rationality of the legislative judgment with
reference to well-settled constitutional principles.
In
expounding the Constitution, the Court's role is to discern
"principles sufficiently absolute to give them roots throughout
the community and continuity over significant periods of time, and to
lift them above the level of the pragmatic political judgments of a
particular time and place."
University
of California Regents v. Bakke,
438
U.S. 265,
299 (1978) (opinion of POWELL, J.), quoting A. Cox, The Role of the
Supreme Court in American Government 114 (1976). Only when concerns
sufficiently absolute and enduring can be clearly ascertained from
the Constitution and our cases do we employ this standard to aid us
in determining the rationality of the legislative choice.
17.
The Attorney General recently estimated the number of illegal aliens
within the United States at between 3 and 6 million. In presenting to
both the Senate and House of Representatives several Presidential
proposals for reform of the immigration laws -- including one to
"legalize" many of the illegal entrants currently residing
in the United States by creating for them a special status under the
immigration laws -- the Attorney General noted that this subclass is
largely composed of persons with a permanent attachment to the
Nation, and that they are unlikely to be displaced from our
territory:
We
have neither the resources, the capability, nor the motivation to
uproot and deport millions of illegal aliens, many of whom have
become, in effect, members of the community. By granting limited
legal status to the productive and law-abiding members of this shadow
population, we will recognize reality and devote our enforcement
resources to deterring future illegal arrivals.
Joint
Hearing before the Subcommittee on Immigration, Refugees, and
International Law of the House Committee on the Judiciary and the
Subcommittee on Immigration and Refugee Policy of the Senate
Committee on the Judiciary, 97th Cong., 1st Sess., 9 (1981)
(testimony of William French Smith, Attorney General).
18.
As the District Court observed in No. 80-1538, the confluence of
Government policies has resulted in
the
existence of a large number of employed illegal aliens, such as the
parents of plaintiffs in this case, whose presence is tolerated,
whose employment is perhaps even welcomed, but who are virtually
defenseless against any abuse, exploitation, or callous neglect to
which the state or the state's natural citizens and business
organizations may wish to subject them.
458
F.Supp. at 585.
19.
We reject the claim that "illegal aliens" are a "suspect
class." No case in which we have attempted to define a suspect
class, see, e.g., n. 14, supra, has addressed the status of persons
unlawfully in our country. Unlike most of the classifications that we
have recognized as suspect, entry into this class, by virtue of entry
into this country, is the product of voluntary action. Indeed, entry
into the class is itself a crime. In addition, it could hardly be
suggested that undocumented status is a "constitutional
irrelevancy." With respect to the actions of the Federal
Government, alienage classifications may be intimately related to the
conduct of foreign policy, to the federal prerogative to control
access to the United States, and to the plenary federal power to
determine who has sufficiently manifested his allegiance to become a
citizen of the Nation. No State may independently exercise a like
power. But if the Federal Government has, by uniform rule, prescribed
what it believes to be appropriate standards for the treatment of an
alien subclass, the States may, of course, follow the federal
direction. See De Canas v. Bica, 424 U.S. 351 (1976).
20.
Because the State does not afford noncitizens the right to vote, and
may bar noncitizens from participating in activities at the heart of
its political community, appellants argue that denial of a basic
education to these children is of less significance than the denial
to some other group. Whatever the current status of these children,
the courts below concluded that many will remain here permanently,
and that some indeterminate number will eventually become citizens.
The fact that many will not is not decisive, even with respect to the
importance of education to participation in core political
institutions. "[T]he benefits of education are not reserved to
those whose productive utilization of them is a certainty. . . ."
458 F.Supp. at 581, n. 14. In addition, although a noncitizen
may
be barred from full involvement in the political arena, he may play a
role -- perhaps even a leadership role -- in other areas of import to
the community.
Nyquist
v. Mauclet,
432
U.S. 1,
12 (1977). Moreover, the significance of education to our society is
not limited to its political and cultural fruits. The public schools
are an important socializing institution, imparting those shared
values through which social order and stability are maintained.
21.
If the constitutional guarantee of equal protection was available
only to those upon whom Congress affirmatively granted its benefit,
the State's argument would be virtually unanswerable. But the Equal
Protection Clause operates of its own force to protect anyone "within
[the State's] jurisdiction" from the State's arbitrary action.
See Part II, supra. The question we examine in text is whether the
federal disapproval of the presence of these children assists the
State in overcoming the presumption that denial of education to
innocent children is not a rational response to legitimate state
concerns.
22.
Appellant School District sought at oral argument to characterize the
alienage classification contained in § 21.031 as simply a
test of residence. We are unable to uphold § 21.031 on that
basis. Appellants conceded that, if, for example, a Virginian or a
legally admitted Mexican citizen entered Tyler with his school-age
children, intending to remain only six months, those children would
be viewed as residents entitled to attend Tyler schools. Tr. of Oral
Arg. 31-32. It is thus clear that Tyler's residence argument amounts
to nothing more than the assertion that illegal entry, without more,
prevents a person from becoming a resident for purposes of enrolling
his children in the public schools. A State may not, however,
accomplish what would otherwise be prohibited by the Equal Protection
Clause merely by defining a disfavored group as nonresident. And
illegal entry into the country would not, under traditional criteria,
bar a person from obtaining domicile within a State. C. Bouve,
Exclusion and Expulsion of Aliens in the United States 340 (1912).
Appellants have not shown that the families of undocumented children
do not comply with the established standards by which the State
historically tests residence. Apart from the alienage limitation,
§ 21.031(b) requires a school district to provide education
only to resident children. The school districts of the State are as
free to apply to undocumented children established criteria for
determining residence as they are to apply those criteria to any
other child who seeks admission.
23.
Although the State has no direct interest in controlling entry into
this country, that interest being one reserved by the Constitution to
the Federal Government, unchecked unlawful migration might impair the
State's economy generally, or the State's ability to provide some
important service. Despite the exclusive federal control of this
Nation's borders, we cannot conclude that the States are without any
power to deter the influx of persons entering the United States
against federal law, and whose numbers might have a discernible
impact on traditional state concerns. See De Canas v. Bica, 424 U.S.
at 354-356.
24.
The courts below noted the ineffectiveness of the Texas provision as
a means of controlling the influx of illegal entrants into the State.
See 628 F.2d at 460-461; 458 F.Supp. at 585; 501 F.Supp. at 578 ("The
evidence demonstrates that undocumented persons do not immigrate in
search for a free public education. Virtually all of the undocumented
persons who come into this country seek employment opportunities, and
not educational benefits. . . . There was overwhelming evidence . . .
of the unimportance of public education as a stimulus for
immigration") (footnote omitted).
25.
Nor does the record support the claim that the educational resources
of the State are so direly limited that some form of "educational
triage" might be deemed a reasonable (assuming that it were a
permissible) response to the State's problems. Id. at 579-581.
MARSHALL,
J., Concurring Opinion
SUPREME
COURT OF THE UNITED STATES
------------------------------------------------------------------------
457
U.S. 202
Plyler
v. Doe
APPEAL
FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
------------------------------------------------------------------------
No.
80-1538 Argued: December 1, 1981 --- Decided: June 15, 1982 [*]
------------------------------------------------------------------------
JUSTICE
MARSHALL, concurring.
While
I join the Court opinion, I do so without in any way retreating from
my opinion in San
Antonio Independent School District v. Rodriguez,
411
U.S. 1,
70-133 (1973) (dissenting opinion). I continue to believe that an
individual's interest in education is fundamental, and that this view
is amply supported
by
the unique status accorded public education by our society, and by
the close relationship between education and some of our most basic
constitutional values. [p231]
Id.
at 111. Furthermore, I believe that the facts of these cases
demonstrate the wisdom of rejecting a rigidified approach to equal
protection analysis, and of employing an approach that allows for
varying levels of scrutiny depending upon
the
constitutional and societal importance of the interest adversely
affected and the recognized invidiousness of the basis upon which the
particular classification is drawn.
Id.
at 99. See
also Dandridge v. Williams,
397
U.S. 471,
519-521 (1970) (MARSHALL, J., dissenting). It continues to be my view
that a class-based denial of public education is utterly incompatible
with the Equal Protection Clause of the Fourteenth
Amendment.
BLACKMUN,
J., Concurring Opinion
SUPREME
COURT OF THE UNITED STATES
------------------------------------------------------------------------
457
U.S. 202
Plyler
v. Doe
APPEAL
FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
------------------------------------------------------------------------
No.
80-1538 Argued: December 1, 1981 --- Decided: June 15, 1982 [*]
------------------------------------------------------------------------
JUSTICE
BLACKMUN, concurring.
I
join the opinion and judgment of the Court.
Like
JUSTICE POWELL, I believe that the children involved in this
litigation "should not be left on the streets uneducated."
Post
at 238. I write separately, however, because, in my view, the nature
of the interest at stake is crucial to the proper resolution of these
cases.
The
"fundamental rights" aspect of the Court's equal protection
analysis -- the now-familiar concept that governmental
classifications bearing on certain interests must be closely
scrutinized -- has been the subject of some controversy. Justice
Harlan, for example, warned that
[v]irtually
every state statute affects important rights. . . . [T]o extend the
"compelling interest" rule to all cases in which such
rights are affected would go far toward making this Court a
"superlegislature."
Shapiro
v. Thompson,
394
U.S. 618,
661 (1969) (dissenting opinion). Others have noted that strict
scrutiny under the Equal Protection Clause is unnecessary when
classifications infringing enumerated constitutional rights are
involved, for
a
state law that impinges upon a substantive right or liberty created
or conferred by the Constitution is, of course, presumptively
invalid, whether or not the law's purpose or effect is to create any
classifications.
San
Antonio
[p232]
Independent
School Dist. v. Rodriguez,
411
U.S. 1,
61 (1973) (Stewart, J., concurring). See
Shapiro v. Thompson,
394 U.S. at 659 (Harlan, J., dissenting). Still others have suggested
that fundamental rights are not properly a part of equal protection
analysis at all, because they are unrelated to any defined principle
of equality.
[n1]
These
considerations, combined with doubts about the judiciary's ability to
make fine distinctions in assessing the effects of complex social
policies, led the Court in Rodriguez
to articulate a firm rule: fundamental rights are those that
"explicitly or implicitly [are] guaranteed by the Constitution."
411 U.S. at 33-34. It therefore squarely rejected the notion that "an
ad
hoc
determination as to the social or economic importance" of a
given interest is relevant to the level of scrutiny accorded
classifications involving that interest, id.
at 32, and made clear that "[i]t is not the province of this
Court to create substantive constitutional rights in the name
of guaranteeing equal protection of the laws." Id.
at 33.
I
joined JUSTICE POWELL's opinion for the Court in Rodriguez,
and I continue to believe that it provides the appropriate model for
resolving most equal protection disputes. Classifications infringing
substantive constitutional rights necessarily will be invalid, if not
by force of the Equal Protection Clause, then through operation of
other provisions of the Constitution. Conversely, classifications
bearing on nonconstitutional interests -- even those involving "the
most basic economic needs of impoverished human beings,"
Dandridge
v. Williams,
397
U.S. 471,
485 (1970) -- generally are not subject to special treatment under
the Equal Protection Clause, because they are not distinguishable in
any relevant way from other regulations in "the area of
economics and social welfare." Ibid.
With
all this said, however, I believe the Court's experience has
demonstrated that the Rodriguez
formulation does [p233]
not settle every issue of "fundamental rights" arising
under the Equal Protection Clause. Only a pedant would insist that
there are no meaningful distinctions among the multitude of social
and political interests regulated by the States, and Rodriguez
does not stand for quite so absolute a proposition. To the contrary,
Rodriguez
implicitly acknowledged that certain interests, though not
constitutionally guaranteed, must be accorded a special place in
equal protection analysis. Thus, the Court's decisions long have
accorded strict scrutiny to classifications bearing on the right to
vote in state elections, and Rodriguez
confirmed the "constitutional underpinnings of the right to
equal treatment in the voting process." 411 U.S. at 34, n. 74.
Yet "the right to vote, per
se, is not a
constitutionally protected right," id.
at 35, n. 78. See
Harper v. Virginia Board of Elections,
383
U.S. 663,
665 (1966); Rodriguez,
411 U.S. at 59, n. 2 (Stewart, J., concurring). Instead, regulation
of the electoral process receives unusual scrutiny because "the
right to exercise the franchise in a free and unimpaired manner is
preservative of other basic civil and political rights."
Reynolds
v. Sims, 377
U.S. 533,
562 (1964). See
Dunn v. Blumstein,
405
U.S. 330,
336 (1972). In other words, the right to vote is accorded
extraordinary treatment because it is, in equal protection terms, an
extraordinary right: a citizen
[n2]
cannot hope to achieve any meaningful degree of individual political
equality if granted an inferior right of participation in the
political process. Those denied the vote are relegated, by state
fiat, in a most basic way to second-class status.
It
is arguable, of course, that the Court never should have applied
fundamental rights doctrine in the fashion outlined above. Justice
Harlan, for one, maintained that strict equal protection scrutiny was
appropriate only when racial or analogous [p234]
classifications were at issue. Shapiro
v. Thompson,
394 U.S. at 658-663 (dissenting opinion). See
Reynolds v. Sims,
377 U.S. at 590-591 (Harlan, J., dissenting). But it is too late to
debate that point, and I believe that accepting the principle of the
voting cases -- the idea that state classifications bearing on
certain interests pose the risk of allocating rights in a fashion
inherently contrary to any notion of "equality" -- dictates
the outcome here. As both JUSTICE POWELL and THE CHIEF JUSTICE
observe, the Texas scheme inevitably will create "a subclass of
illiterate persons," post
at 241 (POWELL, J., concurring); see
post at 242,
254 (BURGER, C.J., dissenting); where I differ with THE CHIEF JUSTICE
is in my conclusion that this makes the statutory scheme
unconstitutional, as well as unwise.
In
my view, when the State provides an education to some and denies it
to others, it immediately and inevitably creates class distinctions
of a type fundamentally inconsistent with those purposes, mentioned
above, of the Equal Protection Clause. Children denied an education
are placed at a permanent and insurmountable competitive
disadvantage, for an uneducated child is denied even the opportunity
to achieve. And when those children are members of an identifiable
group, that group -- through the State's action -- will have been
converted into a discrete underclass. Other benefits provided by the
State, such as housing and public assistance, are, of course,
important; to an individual in immediate need, they may be more
desirable than the right to be educated. But classifications
involving the complete denial of education are, in a sense, unique,
for they strike at the heart of equal protection values by involving
the State in the creation of permanent class distinctions. Cf.
Rodriguez, 411
U.S. at 115, n. 74 (MARSHALL, J., dissenting). In a sense, then,
denial of an education is the analogue of denial of the right to
vote: the former relegates the individual to second-class social
status; the latter places him at a permanent political disadvantage.
[p235]
This
conclusion is fully consistent with Rodriguez.
The Court there reserved judgment on the constitutionality of a state
system that "occasioned an absolute denial of educational
opportunities to any of its children," noting that
no
charge fairly could be made that the system [at issue in Rodriguez]
fails to provide each child with an opportunity to acquire . . .
basic minimal skills.
Id.
at 37. And it cautioned that, in a case
involv[ing]
the most persistent and difficult questions of educational policy, .
. . [the] Court's lack of specialized knowledge and experience
counsels against premature interference with the informed judgments
made at the state and local levels.
Id.
at 42. Thus Rodriguez
held, and the Court now reaffirms, that "a State need not
justify by compelling necessity every variation in the manner in
which education is provided to its population." Ante
at 223. Similarly, it is undeniable that education is not a
"fundamental right" in the sense that it is
constitutionally guaranteed. Here, however, the State has undertaken
to provide an education to most of the children residing within its
borders. And, in contrast to the situation in Rodriguez,
it does not take an advanced degree to predict the effects of a
complete denial of education upon those children targeted by the
State's classification. In such circumstances, the voting decisions
suggest that the State must offer something more than a rational
basis for its classification.
[n3]
Concededly,
it would seem ironic to discuss the social necessity of an education
in a case that concerned only undocumented aliens "whose very
presence in the state and this country is illegal." Post
at 250 (BURGER, C.J., dissenting). But because of the nature of the
federal immigration laws and the preeminent role of the Federal
Government in [p236]
regulating immigration, the class of children here is not a
monolithic one.
Thus, the District Court in the Alien
Children Education
case found as a factual matter that a significant number of illegal
aliens will remain in this country permanently, 501 F.Supp. 544,
558-559 (SD Tex.1980); that some of the children involved in this
litigation are "documentable," id.
at 573; and that "[m]any of the undocumented children are not
deportable. None of the named plaintiffs is under an order of
deportation." Id.
at 583, n. 103. As the Court's alienage cases demonstrate, these
children may not be denied rights that are granted to citizens,
excepting only those rights bearing on political interests. See
Nyquist v. Mauclet,
432
U.S. 1
(1977). And, as JUSTICE POWELL notes,
the structure of the immigration statutes makes it impossible for the
State to determine which aliens are entitled to residence, and which
eventually will be deported. Post
at 240-241, n. 6. Indeed, any attempt to do so would involve the
State in the administration of the immigration laws.
Whatever the State's power to classify deportable aliens, then -- and
whatever the Federal Government's ability to draw more precise and
more acceptable alienage classifications --
the statute at issue here sweeps within it a substantial number of
children who will in fact, and who may well be entitled to, remain in
the United States. Given the extraordinary nature of the interest
involved, this makes the classification here fatally imprecise.
And, as the Court demonstrates, the Texas legislation is not
otherwise supported by any substantial interests.
Because
I believe that the Court's carefully worded analysis recognizes the
importance of the equal protection and preemption interests I
consider crucial, I join its opinion as well as its judgment.
1.
See, e.g., Perry, Modern Equal Protection: A Conceptualization and
Appraisal, 79 Colum.L.Rev. 1023, 1075-1083 (1979).
2.
I use the term "citizen" advisedly. The right to vote, of
course, is a political interest of concern to citizens. The right to
an education, in contrast, is a social benefit of relevance to a
substantial number of those affected by Texas' statutory scheme, as
is discussed below.
3.
The Court concludes that the provision at issue must be invalidated
"unless it furthers some substantial goal of the State."
Ante at 224. Since the statute fails to survive this level of
scrutiny, as the Court demonstrates, there is no need to determine
whether a more probing level of review would be appropriate.
POWELL,
J., Concurring Opinion
SUPREME
COURT OF THE UNITED STATES
------------------------------------------------------------------------
457
U.S. 202
Plyler
v. Doe
APPEAL
FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
------------------------------------------------------------------------
No.
80-1538 Argued: December 1, 1981 --- Decided: June 15, 1982 [*]
------------------------------------------------------------------------
JUSTICE
POWELL, concurring.
I
join the opinion of the Court, and write separately to emphasize the
unique character of the cases before us. [p237]
The
classification in question severely disadvantages children who are
the victims of a combination of circumstances. Access from Mexico
into this country, across our 2,000-mile border, is readily available
and virtually uncontrollable. Illegal aliens are attracted by our
employment opportunities, and perhaps by other benefits as well. This
is a problem of serious national proportions, as the Attorney General
recently has recognized. See
ante at
218-219, n. 17. Perhaps because of the intractability of the problem,
Congress -- vested by the Constitution with the responsibility of
protecting our borders and legislating with respect to aliens -- has
not provided effective leadership in dealing with this problem.
[n1] It
therefore is certain that illegal aliens will continue [p238]
to enter the United States and, as the record makes clear, an unknown
percentage of them will remain here. I agree with the Court that
their children should not be left on the streets uneducated.
Although
the analogy is not perfect, our holding today does find support in
decisions of this Court with respect to the status of illegitimates.
In Weber
v. Aetna Casualty & Surety Co.,
406
U.S. 164,
175 (1972), we said: "[V]isiting . . . condemnation on the head
of an infant" for the misdeeds of the parents is illogical,
unjust, and "contrary to the basic concept of our system that
legal burdens should bear some relationship to individual
responsibility or wrongdoing."
In
these cases, the State of Texas effectively denies to the school-age
children of illegal aliens the opportunity to attend the free public
schools that the State makes available to all residents. They are
excluded only because of a status resulting from the violation by
parents or guardians of our immigration laws and the fact that they
remain in our country unlawfully. The appellee children are innocent
in this respect. They can "affect neither their parents' conduct
nor their own status." Trimble
v. Gordon, 430
U.S. 762,
770 (1977)
Our
review in a case such as these is properly heightened.
[n2]
See
id. at 767.
Cf.
Craig v. Boren,
429
U.S. 190
(1976). The classification at issue deprives a group of children of
the opportunity for education afforded all other children simply
because they have been assigned a legal status due to a violation of
law by their parents. These children thus have been [p239]
singled out for a lifelong penalty and stigma. A legislative
classification that threatens the creation of an underclass of future
citizens and residents cannot be reconciled with one of the
fundamental purposes of the Fourteenth
Amendment.
In these unique circumstances, the Court properly may require that
the State's interests be substantial and that the means bear a "fair
and substantial relation" to these interests.
[n3]
See
Lalli v. Lalli,
439
U.S. 259,
265 (1978) ("classifications based on illegitimacy . . . are
invalid under the Fourteenth
Amendment
if they are not substantially related to permissible state
interests"); id.
at 271 ("[a]s the State's interests are substantial, we now
consider the means adopted").
In
my view, the State's denial of education to these children bears no
substantial relation to any substantial state interest. Both of the
District Courts found that an uncertain but significant percentage of
illegal alien children will remain in Texas as residents, and many
eventually will become citizens. The discussion by the Court, ante
at Part V, of the State's purported interests demonstrates that they
are poorly served by the educational exclusion. Indeed, the interests
relied upon by the State would seem to be insubstantial in view of
the consequences to the State itself of wholly uneducated persons
living indefinitely within its borders. By contrast, access to the
public schools is made available to the children of lawful residents
without regard to the temporary [p240]
nature of their residency in the particular Texas school district.
[n4]
The Court of Appeals and the District Courts that addressed these
cases concluded that the classification could not satisfy even the
bare requirements of rationality. One need not go so far to conclude
that the exclusion of appellees' class
[n5] of
children from state-provided education is a type of punitive
discrimination based on status that is impermissible under the Equal
Protection Clause.
In
reaching this conclusion, I am not unmindful of what must be the
exasperation of responsible citizens and government authorities in
Texas and other States similarly situated. Their responsibility, if
any, for the influx of aliens is slight compared to that imposed by
the Constitution on the Federal Government.
[n6] So
long as the ease of entry remains inviting, [p241]
and the power to deport is exercised infrequently by the Federal
Government, the additional expense of admitting these children to
public schools might fairly be shared by the Federal and State
Governments. But it hardly can be argued rationally that anyone
benefits from the creation within our borders of a subclass of
illiterate persons, many of whom will remain in the State, adding to
the problems and costs of both State and National Governments
attendant upon unemployment, welfare, and crime. [p242]
1.
Article I, 8, cl. 4, of the Constitution provides: "The Congress
shall have Power . . . To establish an uniform Rule of
Naturalization." The Federal Government has
broad
constitutional powers in determining what aliens shall be admitted to
the United States, the period they may remain, regulation of their
conduct before naturalization, and the terms and conditions of their
naturalization.
Takahashi
v. Fish & Game Comm'n,
334
U.S. 410,
419 (1948). See
Graham v. Richardson,
403
U.S. 365,
378 (1971) (regulation of aliens is "constitutionally entrusted
to the Federal Government"). The Court has traditionally shown
great deference to federal authority over immigration and to federal
classifications based upon alienage. See,
e.g., Fiallo v. Bell,
430
U.S. 787,
792 (1977) ("it is important to underscore the limited scope of
judicial inquiry into immigration legislation"); Harisiades
v. Shaughnessy,
342
U.S. 580,
588-589 (1952) ("It is pertinent to observe that any policy
toward aliens is vitally and intricately interwoven with
contemporaneous policies in regard to the conduct of foreign
relations, the war power, and the maintenance of a republican form of
government. Such matters are so exclusively entrusted to the
political branches of government as to be largely immune from
judicial inquiry or interference"). Indeed, even equal
protection analysis in this area is based to a large extent on an
underlying theme of preemption and exclusive federal power over
immigration. See
Takahashi v. Fish & Game Comm'n, supra,
at 420 (the Federal Government has admitted resident aliens to the
country "on an equality of legal privileges with all citizens
under nondiscriminatory laws," and the States may not alter the
terms of this admission). Compare
Graham v. Richardson, supra, and Sugarman v. Dougall,
413
U.S. 634
(1973), with
Mathews v. Diaz,
426
U.S. 67
(1976), and Hampton
v. Mow Sun Wong,
426
U.S. 88
(1976). Given that the States' power to regulate in this area is so
limited, and that this is an area of such peculiarly strong federal
authority, the necessity of federal leadership seems evident.
2.
I emphasize the Court's conclusion that strict scrutiny is not
appropriately applied to this classification. This exacting standard
of review has been reserved for instances in which a "fundamental"
constitutional right or a "suspect" classification is
present. Neither is present in these cases, as the Court holds.
3.
THE CHIEF JUSTICE argues in his dissenting opinion that this
heightened standard of review is inconsistent with the Court's
decision in San Antonio Independent School District v. Rodriguez, 411
U.S. 1 (1973). But in Rodriguez, no group of children was singled out
by the State and then penalized because of their parents' status.
Rather, funding for education varied across the State because of the
tradition of local control. Nor, in that case, was any group of
children totally deprived of all education, as in these cases. If the
resident children of illegal aliens were denied welfare assistance,
made available by government to all other children who qualify, this
also -- in my opinion -- would be an impermissible penalizing of
children because of their parents' status.
4.
The State provides free public education to all lawful residents
whether they intend to reside permanently in the State or only reside
in the State temporarily. See ante at 227, n. 22. Of course, a school
district may require that illegal alien children, like any other
children, actually reside in the school district before admitting
them to the schools. A requirement of de facto residency, uniformly
applied, would not violate any principle of equal protection.
5.
The classes certified in these cases included all undocumented
school-age children of Mexican origin residing in the school
district, see ante at 206, or the State. See In re Alien Children
Education Litigation, 501 F.Supp. 544, 553 (SD Tex.1980). Even so, it
is clear that neither class was thought to include mature Mexican
minors who were solely responsible for violating the immigration
laws. In 458 F.Supp. 569 (ED Tex.1978), the court characterized
plaintiffs as "entire families who have migrated illegally."
Id. at 578. Each of the plaintiff children in that case was
represented by a parent or guardian. Similarly, the court in In re
Alien Children Education Litigation found that "[u]ndocumented
children do not enter the United States unaccompanied by their
parents." 501 F.Supp. at 573. A different case would be
presented in the unlikely event that a minor, old enough to be
responsible for illegal entry and yet still of school age, entered
this country illegally on his own volition.
6.
In addition, the States' ability to respond on their own to the
problems caused by this migration may be limited by the principles of
preemption that apply in this area. See, e.g., Hines v. Davidowitz,
312 U.S. 52 (1941). In De Canas v. Bica, 424 U.S. 351 (1976), the
Court found that a state law making it a criminal offense to employ
illegal aliens was not preempted by federal authority over aliens and
immigration. The Court found evidence that Congress intended state
regulation in this area. Id. at 361 ("there is evidence . . .
that Congress intends that States may, to the extent consistent with
federal law, regulate the employment of illegal aliens").
Moreover, under federal immigration law, only immigrant aliens and
nonimmigrant aliens with special permission are entitled to work. See
1 C. Gordon & H. Rosenfield, Immigration Law and Procedure,
1.34a, 1.36, 2.6b (1981). Because federal law clearly indicates that
only certain specified aliens may lawfully work in the country, and
because these aliens have documentation establishing this right, the
State in De Canas was able to identify with certainty which aliens
had a federal permission to work in this country. The State did not
need to concern itself with an alien's current or future
deportability. By contrast, there is no comparable federal guidance
in the area of education. No federal law invites state regulation; no
federal regulations identify those aliens who have a right to attend
public schools. In addition, the Texas educational exclusion requires
the State to make predictions as to whether individual aliens
eventually will be found to be deportable. But it is impossible for a
State to determine which aliens the Federal Government will
eventually deport, which the Federal Government will permit to stay,
and which the Federal Government will ultimately naturalize. Until an
undocumented alien is ordered deported by the Federal Government, no
State can be assured that the alien will not be found to have a
federal permission to reside in the country, perhaps even as a
citizen. Indeed, even the Immigration and Naturalization Service
cannot predict with certainty whether any individual alien has a
right to reside in the country until deportation proceedings have run
their course. See, e.g., 8 U.S.C. §§ 1252 1253(h),
1254 (1976 ed. and Supp. IV).
BURGER,
C.J., Dissenting Opinion
SUPREME
COURT OF THE UNITED STATES
------------------------------------------------------------------------
457
U.S. 202
Plyler
v. Doe
APPEAL
FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
------------------------------------------------------------------------
No.
80-1538 Argued: December 1, 1981 --- Decided: June 15, 1982 [*]
------------------------------------------------------------------------
CHIEF
JUSTICE BURGER, with whom JUSTICE WHITE, JUSTICE REHNQUIST, and
JUSTICE O'CONNOR join, dissenting.
Were
it our business to set the Nation's social policy, I would agree
without hesitation that it is senseless for an enlightened society to
deprive any children -- including illegal aliens -- of an elementary
education. I fully agree that it would be folly -- and wrong -- to
tolerate creation of a segment of society made up of illiterate
persons, many having a limited or no command of our language.
[n1]
However, the Constitution does not constitute us as "Platonic
Guardians," nor does it vest in this Court the authority to
strike down laws because they do not meet our standards of desirable
social policy, "wisdom," or "common sense." See
TVA v. Hill,
437
U.S. 153,
194-195 (1978). We trespass on the assigned function of the political
branches under our structure of limited and separated powers when we
assume a policymaking role as the Court does today.
The
Court makes no attempt to disguise that it is acting to make up for
Congress' lack of "effective leadership" in dealing with
the serious national problems caused by the influx of uncountable
millions of illegal aliens across our borders.
[n2]
[p243]
See
ante
at 237-238 (POWELL, J., concurring). The failure of enforcement of
the immigration laws over more than a decade and the inherent
difficulty and expense of sealing our vast borders have combined to
create a grave socioeconomic dilemma. It is a dilemma that has not
yet even been fully assessed, let alone addressed. However, it is not
the function of the Judiciary to provide "effective leadership"
simply because the political branches of government fail to do so.
The
Court's holding today manifests the justly criticized judicial
tendency to attempt speedy and wholesale formulation of "remedies"
for the failures -- or simply the laggard pace -- of the political
processes of our system of government. The Court employs, and, in my
view, abuses, the Fourteenth
Amendment
in an effort to become an omnipotent and omniscient problem solver.
That the motives for doing so are noble and compassionate does not
alter the fact that the Court distorts our constitutional function to
make amends for the defaults of others.
I
In
a sense, the Court's opinion rests on such a unique confluence of
theories and rationales that it will likely stand for little beyond
the results in these particular cases. Yet the extent to which the
Court departs from principled constitutional adjudication is
nonetheless disturbing.
I
have no quarrel with the conclusion that the Equal Protection Clause
of the Fourteenth
Amendment
applies
to aliens who, after their illegal entry into this country, are
indeed physically "within the jurisdiction" of a state.
However, as the Court concedes, this "only begins the inquiry."
Ante
at 215. The
Equal Protection Clause does not mandate identical treatment of
different categories of persons. Jefferson
v. Hackney,
406
U.S. 535,
549 (1972); Reed
v. Reed,
404
U.S. 71,
75 (1971); Tigner
v. Texas,
310
U.S. 141,
147-148 (1940).
The
dispositive issue in these cases, simply put, is whether, for
purposes of allocating its finite resources, a state has a legitimate
reason to differentiate between persons [p244]
who are lawfully within the state and those who are unlawfully there.
The distinction the State of Texas has drawn -- based not only upon
its own legitimate interests but on classifications established by
the Federal Government in its immigration laws and policies -- is not
unconstitutional.
A
The
Court acknowledges that, except in those cases when state
classifications disadvantage a "suspect class" or impinge
upon a "fundamental right," the Equal Protection Clause
permits a state "substantial latitude" in distinguishing
between different groups of persons. Ante
at 216-217. Moreover, the Court expressly -- and correctly -- rejects
any suggestion that illegal aliens are a suspect class, ante
at 219, n.19, or that education is a fundamental right, ante
at 221, 223. Yet by patching together bits and pieces of what might
be termed quasi-suspect-class and quasi-fundamental-rights analysis,
the Court spins out a theory custom-tailored to the facts of these
cases.
In
the end, we are told little more than that the level of scrutiny
employed to strike down the Texas law applies only when illegal alien
children are deprived of a public education, see
ante
at 223-224.
[n3]
If ever a court was guilty of an unabashedly result-oriented
approach, this case is a prime example.
(1)
The
Court first suggests that these illegal alien children, although not
a suspect class, are entitled to special solicitude under the Equal
Protection Clause because they lack "control" over or
"responsibility" for their unlawful entry into this
country. Ante
at 220, 223-224. Similarly, the Court appears to take the position
that § 21.031 is presumptively "irrational"
because it has the effect of imposing "penalties" [p245]
on "innocent" children. Ibid.
See
also ante at
238-239 (POWELL, J., concurring).
[n4]
However,
the Equal Protection Clause does not preclude legislators from
classifying among persons on the basis of factors and characteristics
over which individuals may be said to lack "control."
Indeed, in some circumstances, persons generally, and children in
particular, may have little control over or responsibility for such
things as their ill health, need for public assistance, or place of
residence. Yet a state legislature is not barred from considering,
for example, relevant differences between the mentally healthy and
the mentally ill, or between the residents of different counties
[n5]
simply because these may be factors unrelated to individual choice or
to any "wrongdoing." The
Equal Protection Clause protects against arbitrary and irrational
classifications, and against invidious discrimination stemming from
prejudice and hostility; it is not an all-encompassing "equalizer"
designed to eradicate every distinction for which persons are not
"responsible." [p246]
The
Court does not presume to suggest that appellees' purported lack of
culpability for their illegal status prevents them from being
deported or otherwise "penalized" under federal law. Yet
would deportation be any less a "penalty" than denial of
privileges provided to legal residents?
[n6]
Illegality of presence in the United States does not -- and need not
-- depend on some amorphous concept of "guilt" or
"innocence" concerning an alien's entry. Similarly,
a state's use of federal immigration status as a basis for
legislative classification is not necessarily rendered suspect for
its failure to take such factors into account.
The
Court's analogy to cases involving discrimination against
illegitimate children -- see
ante at 220;
ante
at 238-239 (POWELL, J., concurring) -- is grossly misleading. The
State has not thrust any disabilities upon appellees due to their
"status of birth." Cf.
Weber v. Aetna Casualty & Surety Co.,
406
U.S. 164,
176 (1972). Rather, appellees' status is predicated upon the
circumstances of their concededly illegal presence in this country,
and is a direct result of Congress' obviously valid exercise of its
"broad constitutional powers" in the field of immigration
and naturalization. U.S.Const., Art. I, § 8, Cl. 4; see
Takahashi v. Fish & Game Comm'n,
334
U.S. 410,
419 (1948). This
Court has recognized that, in allocating governmental benefits to a
given class of aliens, one "may take into account the character
of the relationship between the alien and this country." Mathews
v. Diaz,
426
U.S. 67,
80 (1976). When that "relationship" is a federally
prohibited one, there can, of course, be no presumption that a state
has a constitutional duty to include illegal aliens among the
recipients of its governmental benefits.
[n7]
[p247]
(2)
The
second strand of the Court's analysis rests on the premise that,
although public education is not a constitutionally guaranteed right,
"neither is it merely some governmental ‘benefit'
indistinguishable from other forms of social welfare legislation."
Ante
at 221. Whatever meaning or relevance this opaque observation might
have in some other context
[n8] it
simply has no bearing on the issues at hand. Indeed, it is never made
clear what the Court's opinion means on this score.
The
importance of education is beyond dispute. Yet we have held
repeatedly that the importance of a governmental service does not
elevate it to the status of a "fundamental right" for
purposes of equal protection analysis. San
Antonio Independent School Dist. v. Rodriguez,
411
U.S. 1,
30-31 (1973); Lindsey
v. Normet, 405
U.S. 56,
73-74 (1972). In San
Antonio Independent School Dist., supra,
JUSTICE POWELL, speaking for the Court, expressly rejected the
proposition that state laws dealing with public education are subject
to special scrutiny under the Equal Protection Clause. Moreover, the
Court points to no meaningful way to distinguish between education
and other governmental benefits [p248]
in this context. Is the Court suggesting that education is more
"fundamental" than food, shelter, or medical care?
The
Equal Protection Clause guarantees similar treatment of similarly
situated persons, but it does not mandate a constitutional hierarchy
of governmental services.
JUSTICE POWELL, speaking for the Court in San
Antonio Independent School Dist., supra,
at 31, put it well in stating that, to the extent this Court raises
or lowers the degree of "judicial scrutiny" in equal
protection cases according to a transient Court majority's view of
the societal importance of the interest affected, we "assum[e] a
legislative role, and one for which the Court lacks both authority
and competence." Yet that is precisely what the Court does
today. See
also Shapiro v. Thompson,
394
U.S. 618,
655-661 (1969) (Harlan, J., dissenting).
The
central question in these cases, as in every equal protection case
not involving truly fundamental rights "explicitly or implicitly
guaranteed by the Constitution," San
Antonio Independent School Dist., supra,
at 33-34, is whether there is some legitimate basis for a legislative
distinction between different classes of persons. The fact that the
distinction is drawn in legislation affecting access to public
education -- as opposed to legislation allocating other important
governmental benefits, such as public assistance, health care, or
housing -- cannot make a difference in the level of scrutiny applied.
B
Once
it is conceded -- as the Court does -- that illegal aliens are not a
suspect class, and that education is not a fundamental right, our
inquiry should focus on and be limited to whether the legislative
classification at issue bears a rational relationship to a legitimate
state purpose. Vance
v. Bradley,
440
U.S. 93,
97 (1979); Dandridge
v. Williams,
397
U.S. 471,
486-487 (1970); see
ante at 216.
[n9]
[p249]
The
State contends primarily that § 21.031 serves to prevent
undue depletion of its limited revenues available for education, and
to preserve the fiscal integrity of the State's school-financing
system against an ever-increasing flood of illegal aliens -- aliens
over whose entry or continued presence it has no control. Of course
such fiscal concerns alone could not justify discrimination against a
suspect class or an arbitrary and irrational denial of benefits to a
particular group of persons. Yet I assume no Member of this Court
would argue that prudent conservation of finite state revenues is,
per
se, an
illegitimate goal. Indeed, the numerous classifications this Court
has sustained in social welfare legislation were invariably related
to the limited amount of revenues available to spend on any given
program or set of programs. See,
e.g., Jefferson v. Hackney,
406 U.S. at 549-551; Dandridge
v. Williams, supra,
at 487. The significant question here is whether the requirement of
tuition from illegal aliens who attend the public schools -- as well
as from residents of other states, for example -- is a rational and
reasonable means of furthering the State's legitimate fiscal ends.
[n10]
[p250]
Without
laboring what will undoubtedly seem obvious to many, it simply is not
"irrational" for a state to conclude that it does not have
the same responsibility to provide benefits for persons whose very
presence in the state and this country is illegal as it does to
provide for persons lawfully present.
By definition, illegal aliens have no right whatever to be here, and
the state may reasonably, and constitutionally, elect not to provide
them with governmental services at the expense of those who are
lawfully in the state.
[n11]
In De
Canas v. Bica,
424
U.S. 351,
357 (1976), we held that a State may protect its
fiscal
interests and lawfully resident labor force from the deleterious
effects on its economy resulting from the employment of illegal
aliens.
And,
only recently, this Court made clear that a State has a legitimate
interest in protecting and preserving the quality of its schools and
"the right of its own bona
fide residents
to attend such institutions on a preferential tuition basis."
Vlandis
v. Kline, 412
U.S. 441,
453 (1973) (emphasis added). See
also Elkins v. Moreno,
435
U.S. 647,
663-668 (1978). The Court has failed to offer even a plausible
explanation why illegality of residence [p251]
in this country is not a factor that may legitimately bear upon the
bona fides of state residence and entitlement to the benefits of
lawful residence.
[n12]
It
is significant that the Federal Government has seen fit to exclude
illegal aliens from numerous social welfare programs, such as the
food stamp program, 7
U.S.C. § 2015(f)
(1976 ed. and Supp. IV) and 7
CFR § 273.4
(1981), the old-age assistance, aid to families with dependent
children, aid to the blind, aid to the permanently and totally
disabled, and supplemental security income programs, 45
CFR § 233.50
(1981), the Medicare hospital insurance benefits program, 42
U.S.C. § 1395i-2
and 42
CFR § 405.205(b)
(1981), and the Medicaid hospital insurance benefits for the aged and
disabled program, 42
U.S.C. § 1395o
and 42
CFR § 405.103(a)(4)
(1981). Although
these exclusions do not conclusively demonstrate the
constitutionality of the State's use of the same classification for
comparable purposes, at the very least they tend to support the
rationality of excluding illegal alien residents of a state from such
programs so as to preserve the state's finite revenues for the
benefit of lawful residents. See
Mathews v. Diaz,
426 U.S. at 80; see
also n. 7,
supra.
The
Court maintains -- as if this were the issue -- that "barring
undocumented children from local schools would not necessarily
improve the quality of education provided in those [p252]
schools." Ante
at 229. See
458 F.Supp. 569, 577 (ED Tex.1978).
[n13]
However, the legitimacy of barring illegal aliens from programs such
as Medicare or Medicaid does not depend on a showing that the barrier
would "improve the quality" of medical care given to
persons lawfully entitled to participate in such programs.
Modern education, like medical care, is enormously expensive, and
there can be no doubt that very large added costs will fall on the
State or its local school districts as a result of the inclusion of
illegal aliens in the tuition-free public schools. The State may, in
its discretion, use any savings resulting from its tuition
requirement to "improve the quality of education" in the
public school system, or to enhance the funds available for other
social programs, or to reduce the tax burden placed on its residents;
each of these ends is ‘legitimate.'" The State need not
show, as the Court implies, that the incremental cost of educating
illegal aliens will send it into bankruptcy, or have a "‘grave
impact on the quality of education,'" ante
at 229; that is not dispositive under a "rational basis"
scrutiny. In the
absence of a constitutional imperative to provide for the education
of illegal aliens, the State may "rationally" choose to
take advantage of whatever savings will accrue from limiting access
to the tuition-free public schools to its own lawful residents,
excluding even citizens of neighboring States.
[n14]
Denying
a free education to illegal alien children is not a choice I would
make were I a legislator. Apart from compassionate considerations,
the long-range costs of excluding any children from the public
schools may well outweigh the costs of educating them. But that is
not the issue; the fact [p253]
that there are sound policy arguments against the Texas Legislature's
choice does not render that choice an unconstitutional one.
II
The
Constitution does not provide a cure for every social ill, nor does
it vest judges with a mandate to try to remedy every social problem.
Lindsey
v. Normet, 405
U.S. at 74. See
Reynolds v. Sims,
377
U.S. 533,
624 625 (1964) (Harlan, J., dissenting).
Moreover, when this Court rushes in to remedy what it perceives to be
the failings of the political processes, it deprives those processes
of an opportunity to function.
When
the political institutions are not forced to exercise
constitutionally allocated powers and responsibilities, those powers,
like muscles not used, tend to atrophy. Today' cases, I regret to
say, present yet another example of unwarranted judicial action
which, in the long run, tends to contribute to the weakening of our
political processes.
[n15]
Congress,
"vested by the Constitution with the responsibility of
protecting our borders and legislating with respect to aliens,"
ante
at 237 (POWELL, J., concurring), bears primary responsibility for
addressing the problems occasioned by the millions of illegal aliens
flooding across our southern border. Similarly, it is for Congress,
and not this Court, to [p254]
assess the "social costs borne by our Nation when select groups
are denied the means to absorb the values and skills upon which our
social order rests." Ante
at 221; see
ante at
223-224. While
the "specter of a permanent caste" of illegal Mexican
residents of the United States is indeed a disturbing one, see
ante
at 218-219, it is but one segment of a larger problem, which is for
the political branches to solve. I find it difficult to believe that
Congress would long tolerate such a self-destructive result -- that
it would fail to deport these illegal alien families or to provide
for the education of their children. Yet instead of allowing the
political processes to run their course -- albeit with some delay --
the Court seeks to do Congress' job for it, compensating for
congressional inaction. It is not unreasonable to think that this
encourages the political branches to pass their problems to the
Judiciary.
The
solution to this seemingly intractable problem is to defer to the
political processes, unpalatable as that may be to some.
1.
It does not follow, however, that a state should bear the costs of
educating children whose illegal presence in this country results
from the default of the political branches of the Federal Government.
A state has no power to prevent unlawful immigration, and no power to
deport illegal aliens; those powers are reserved exclusively to
Congress and the Executive. If the Federal Government, properly
chargeable with deporting illegal aliens, fails to do so, it should
bear the burdens of their presence here. Surely if illegal alien
children can be identified for purposes of this litigation, their
parents can be identified for purposes of prompt deportation.
2.
The Department of Justice recently estimated the number of illegal
aliens within the United States at between 3 and 6 million. Joint
Hearing before the Subcommittee on Immigration, Refugees, and
International Law of the House Committee on the Judiciary and the
Subcommittee on Immigration and Refugee Policy of the Senate
Committee on the Judiciary, 97th Cong., 1st Sess., 7 (1981)
(testimony of Attorney General Smith). Other estimates run as high as
12 million. See Strout, Closing the Door on Immigration, Christian
Science Monitor, May 21, 1982, p. 22, col. 4.
3.
The Court implies, for example, that the Fourteenth Amendment would
not require a state to provide welfare benefits to illegal aliens.
4.
Both the opinion of the Court and JUSTICE POWELL's concurrence imply
that appellees are being "penalized" because their parents
are illegal entrants. Ante at 220; ante at 238-239, and 239, n. 3
(POWELL, J., concurring). However, Texas has classified appellees on
the basis of their own illegal status, not that of their parents.
Children born in this country to illegal alien parents, including
some of appellees' siblings, are not excluded from the Texas schools.
Nor does Texas discriminate against appellees because of their
Mexican origin or citizenship. Texas provides a free public education
to countless thousands of Mexican immigrants who are lawfully in this
country.
5.
Appellees "lack control" over their illegal residence in
this country in the same sense as lawfully resident children lack
control over the school district in which their parents reside. Yet
in San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1
(1973), we declined to review under "heightened scrutiny" a
claim that a State discriminated against residents of less wealthy
school districts in its provision of educational benefits. There was
no suggestion in that case that a child's "lack of
responsibility" for his residence in a particular school
district had any relevance to the proper standard of review of his
claims. The result was that children lawfully here but residing in
different counties received different treatment.
6.
Indeed, even children of illegal alien parents born in the United
States can be said to be "penalized" when their parents are
deported.
7.
It is true that the Constitution imposes lesser constraints on the
Federal Government than on the states with regard to discrimination
against lawfully admitted aliens. E.g., Mathews v. Diaz, 426 U.S. 67
(1976); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976). This is because
"Congress and the President have broad power over immigration
and naturalization which the States do not possess," Hampton,
supra, at 95, and because state discrimination against legally
resident aliens conflicts with and alters
the
conditions lawfully imposed by Congress upon admission,
naturalization and residence of aliens in the United States or the
several states.
Takahashi
v. Fish & Game Comm'n,
334
U.S. 410,
419 (1948). However, the same cannot be said when Congress has
decreed that certain aliens should not be admitted to the United
States at all.
8.
In support of this conclusion, the Court's opinion strings together
quotations drawn from cases addressing such diverse matters as the
right of individuals under the Due Process Clause to learn a foreign
language, Meyer v. Nebraska, 262 U.S. 390"]262 U.S. 390 (1923);
the First Amendment prohibition against state-mandated religious
exercises in the public schools, 262 U.S. 390 (1923); the First
Amendment prohibition against state-mandated religious exercises in
the public schools, Abington School District v. Schempp, 374 U.S.
203"]374 U.S. 203 (1963); and state impingements upon the free
exercise of religion, 374 U.S. 203 (1963); and state impingements
upon the free exercise of religion, Wisconsin v. Yoder, 406 U.S. 205
(1972). However, not every isolated utterance of this Court retains
force when wrested from the context in which it was made.
9.
This "rational basis standard" was applied by the Court of
Appeals. 628 F.2d 448, 458-461 (1980).
10.
The Texas law might also be justified as a means of deterring
unlawful immigration. While regulation of immigration is an
exclusively federal function, a state may take steps, consistent with
federal immigration policy, to protect its economy and ability to
provide governmental services from the "deleterious effects"
of a massive influx of illegal immigrants. De Canas v. Bica, 424 U.S.
351 (1976); ante at 228, n. 23. The Court maintains that denying
illegal aliens a free public education is an "ineffectual"
means of deterring unlawful immigration, at least when compared to a
prohibition against the employment of illegal aliens. Ante at
228-229. Perhaps that is correct, but it is not dispositive; the
Equal Protection Clause does not mandate that a state choose either
the most effective and all-encompassing means of addressing a problem
or none at all. Dandridge v. Wiliams, 397 U.S. 471, 486-487(1970).
Texas might rationally conclude that more significant "demographic
or economic problem[s]," ante at 228, are engendered by the
illegal entry into the State of entire families of aliens for
indefinite periods than by the periodic sojourns of single adults who
intend to leave the State after short-term or seasonal employment. It
blinks reality to maintain that the availability of governmental
services such as education plays no role in an alien family's
decision to enter, or remain in, this country; certainly, the
availability of a free bilingual public education might well
influence an alien to bring his children, rather than travel alone
for better job opportunities.
11.
The Court suggests that the State's classification is improper
because "[a]n illegal entrant might be granted federal
permission to continue to reside in this country, or even to become a
citizen." Ante at 226. However, once an illegal alien is given
federal permission to remain, he is no longer subject to exclusion
from the tuition-free public schools under § 21.031. The
Court acknowledges that the Tyler Independent School District
provides a free public education to any alien who has obtained, or is
in the process of obtaining, documentation from the United States
Immigration and Naturalization Service. See ante at 206, n. 2. Thus,
Texas has not taken it upon itself to determine which aliens are or
are not entitled to United States residence. JUSTICE BLACKMUN's
assertion that the Texas statute will be applied to aliens "who
may well be entitled to . . . remain in the United States," ante
at 236 (concurring opinion), is wholly without foundation.
12.
The Court's opinion is disingenuous when it suggests that the State
has merely picked a "disfavored group" and arbitrarily
defined its members as nonresidents. Ante at 227, n. 22. Appellees'
"disfavored status" stems from the very fact that federal
law explicitly prohibits them from being in this country. Moreover,
the analogies to Virginians or legally admitted Mexican citizens
entering Texas, ibid., are spurious. A Virginian's right to migrate
to Texas, without penalty, is protected by the Constitution, see,
e.g., Shapiro v. Thompson, 394 U.S. 618 (1969); and a lawfully
admitted alien's right to enter the State is likewise protected by
federal law. See Takahashi v. Fish & Game Comm'n, 334 U.S. 410
(1948). Cf. Zobel v. Williams, ante, p. 55.
13.
The District Court so concluded primarily because the State would
decrease its funding to local school districts in proportion to the
exclusion of illegal alien children. 458 F.Supp. at 577.
14.
I assume no Member of the Court would challenge Texas' right to
charge tuition to students residing across the border in Louisiana
who seek to attend the nearest school in Texas.
15.
Professor Bickel noted that judicial review can have a "tendency
over time seriously to weaken the democratic process." A.
Bickel, The Least Dangerous Branch 21 (1962). He reiterated James
Bradley Thayer's observation that
"the
exercise of [the power of judicial review], even when unavoidable, is
always attended with a serious evil, namely, that the correction of
legislative mistakes comes from the outside, and the people thus lose
the political experience, and the moral education and stimulus that
comes from fighting the question out in the ordinary way, and
correcting their own errors. The tendency of a common and easy resort
to this great function, now lamentably too common, is to dwarf the
political capacity of the people, and to deaden its sense of moral
responsibility."
Id.
at 22 (quoting J. Thayer, John Marshall 106-107 (1901)).
