Text of S. Court Opinion - K-12 Educ for Illegals - Part 3

[TheChancellors]

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CONCUR


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." [*231] 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.

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 "[virtually] every state statute affects important rights. . . . [To] 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 [***809] 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 [*232] 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. 1

FOOTNOTES

1 See, e. g., Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 Colum. L. Rev. 1023, 1075-1083 (1979).


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 [**2403] 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 "[it] 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 [*233] 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. [***810] 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 2 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.

FOOTNOTES

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.


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 [*234] 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 [**2404] 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 [***811] 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.

[*235] 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 "[involving] 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. 3

FOOTNOTES

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.


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 pre-eminent role of the Federal Government in [*236] 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," [**2405] id., at 573; and that "[many] 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 [***812] 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.

JUSTICE POWELL, concurring.

I join the opinion of the Court, and write separately to emphasize the unique character of the cases before us.

[*237] 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. 1 It [**2406] therefore [***813] is certain that illegal aliens will continue [*238] 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.

FOOTNOTES

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 pre-emption 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.


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: "[Visiting] . . . 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. 2 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 [*239] 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. 3 See Lalli v. Lalli, 439 U.S. 259, 265 (1978) [***814] ("classifications based on illegitimacy . . . are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests"); id., at 271 ("[as] the State's interests are substantial, we now consider the means adopted").

FOOTNOTES

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.


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 [**2407] to the children of lawful residents without regard to the temporary [*240] nature of their residency in the particular Texas school district. 4 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 5 of children from state-provided education is a type of punitive discrimination based on status that is impermissible under the Equal Protection Clause.

FOOTNOTES

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 "[undocumented] 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.


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. 6 So long as [***815] the ease of entry remains inviting, [*241] 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 [**2408] National Governments attendant upon unemployment, welfare, and crime.

FOOTNOTES

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 pre-emption 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).




DISSENT BY: BURGER


DISSENT


[*242] 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. 1 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 [***816] separated powers when we assume a policymaking role as the Court does today.

FOOTNOTES

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.


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. 2 [*243] 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.

FOOTNOTES

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.


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." [**2409] 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 [*244] who are lawfully within the state and those who are unlawfully there. The distinction the State of [***817] 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. 3 If ever a court was guilty of an unabashedly result-oriented approach, this case is a prime example.

FOOTNOTES

3 The Court implies, for example, that the Fourteenth Amendment would not require a state to provide welfare benefits to illegal aliens.


(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" [*245] on "innocent" children. Ibid. See also ante, at 238-239 (POWELL, J., concurring). 4 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 [***818] of different counties, 5 simply because these may be factors [**2410] 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."

FOOTNOTES

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.


[*246] 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? 6 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.

FOOTNOTES

6 Indeed, even children of illegal alien parents born in the United States can be said to be "penalized" when their parents are deported.


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. 7

FOOTNOTES

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.


[*247] (2)

[***819] 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, 8 it simply has no [**2411] bearing on the issues at hand. Indeed, it is never made clear what the Court's opinion means on this score.

FOOTNOTES

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 (1923); the First Amendment prohibition against state-mandated religious exercises in the public schools, Abington School District v. Schempp, 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.


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 [*248] 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 "[assume] 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," [***820] 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, 485-487 (1970); see ante, at 216. 9

FOOTNOTES

9 This "rational basis standard" was applied by the Court of Appeals. 628 F.2d 448, 458-461 (1980).


[*249] 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 [**2412] 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. 10

FOOTNOTES

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. Williams, 397 U.S. 471, 486-487 (1970). Texas might rationally conclude that more significant "demographic or economic [problems]," 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.


[*250] Without [***821] 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. 11 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 [*251] 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. 12

FOOTNOTES

11 The Court suggests that the State's classification is improper because "[an] 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.


[**2413] 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 [***822] 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 [*252] schools." Ante, at 229. See 458 F.Supp. 569, 577 (ED Tex. 1978). 13 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. 14

FOOTNOTES

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.


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 [*253] 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 [**2414] with a mandate to try to [***823] 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's 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. 15

FOOTNOTES

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)).


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 [*254] 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.


REFERENCES






3 Am Jur 2d, Aliens and Citizens 2, 9, 10, 36

USCS, Constitution, 14th Amendment

US L Ed Digest, Constitutional Law 364

L Ed Index to Annos, Aliens; Equal Protection of the Laws; Schools

ALR Quick Index, Equal Protection of Law; Schools

Federal Quick Index, Aliens; Schools and School Districts

Annotation References:

Supreme Court's views as to meaning of term "person", as used in statutory or constitutional provision. 56 L Ed 2d 895.

Validity of state laws denying aliens, living in United States, rights enjoyed by citizens. 47 L Ed 2d 876.