AN ANALYSIS OF THE SUPREME COURT'S DECISION IN
PLYLER V. DOE AND ITS EFFECT ON
BILINGUAL EDUCATION IN THE
TEXAS PUBLIC SCHOOLS
Introduction
In May 1975, the Texas legislature amended Section 21.031 of the
Texas Education Code to effectively deny a free public education to
children that were not "citizens of the United States or legally
admitted aliens.""'"
This was accomplished by denying these children
2
the "benefits of the Available School Fund"
which in effect with-
held state funds from local school districts for the education of
these children.
The local school districts were allowed to exercise
their own discretion by either denying admission to these
3 children
or permitting their attendance upon payment of tuition.
The con-
stitutionality of the statute was challenged by several actions
initiated in the United States District Courts of Texas.
4
The case of Doe v. Plyler
was instituted m
the United States
District Court for the Eastern District of Texas in September of
1977.
In November of 1979, several actions were joined together
and heard by the United States District Court for the Southern
5 District of Texas as In re Alien Children Education Litigation.
Both
of these courts found that the Texas statute violated the equal
protection clause of the Fourteenth Amendment.
District Judge Jus-
tice, of the Eastern District of Texas, additionally found that the
statute was preempted by federal law.6
The United States Court of
Appeals for the Fifth Circuit found that the statute violated the
Equal Protection Clause but determined that there was no basis for
the finding of preemption made by the District Court.
i oo4to
These cases were appealed to the United States Supreme Court, and
on June 15, 1982 the court rendered its decision.
The Supreme
Court handed down a five to four decision, affirming the lower
courts * holdings that the statute violated the equal protection
g
clause.
Justice Brennan delivered the opinion of the Court, in
9
which Justices Marshall, Blackmun, Powell and Stevens joined.
Jus-
tices Marshall, Blackmun and Powell filed concurring opinions."'"0
Chief Justice Burger filed a dissenting
11 opinion in which Justices
White, Rehnquist and O'Connor joined.
The opinions of the Supreme
Court Justices are very interesting and highly elusive.
The deci-
sion itself is questionable when analyzed by strict constitutional
guidelines and may cause severe problems for the Texas public education system.
This paper will analyze the Supreme Court's decision and address
one such problem.
The majority of these undocumented children,
children whose presence in the United States is not legal, are prob*ably of limited English proficiency.
Thus, possibly requiring the
state to provide them with bilingual education.
Such a service
could add to the State's burdens in providing adequate free public
education to all students.
A burden which could eventually become
devastating to our system of free public education.
Analysis of the Supreme Court's Decision
Justice Brennan delivered the opinion of the Court,
The only
issue which the Court addressed was whether the statute. Section
21.031 of the Texas Education Code, violated the equal protection
12
clause of the Fourteenth Amendment.
Before this issue could be
resolved, the Court had to determine if the equal protection clause
ii
00411
was even applicable to undocumented aliens found in the United
States.
The question of whether the equal protection clause protected
the rights of undocumented aliens had never been directly consid13
ered by the Court.
The relevant part of the Fourteenth Amendment
to be considered reads:
"nor deny any person within its jurisdic14
tion the equal protection of the laws."
The applicability of the
equal protection clause to undocumented aliens depended on the proper construction of the words "within its jurisdiction."
The State of Texas consistently argued that undocumented aliens
were not protected by the equal protection clause because, by virtue of their immigration status
they were not persons within the
15
jurisdiction of the State.
But each of the lower courts had re-
jected this argument and held that undocumented aliens were protected by the equal protection clause in that they must 16
be considered as persons "within the jurisdiction" of the state.
The Supreme Court adopted the rationale of the lower courts.
The court recognized that the due process clause of the Fourteenth
Amendment had consistently
been applied to protect the rights of
17
undocumented aliens.
The Court points out that the class of per-
sons entitled to protection under the equal protection clause is
coextensive with the class to be protected by the due process clause.
J. Brennan states that, "both provisions
were fashioned to protect
19
an identical class of persons."
Chief Justice Burger, in his
dissenting opinion, concedes the applicability of the equal protection clause to undocumented aliens when he says:
"I have no quarrel
with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens, who, after their illegal entry
ii
00412
into this country, are indeed physically "within the jurisdiction"
of a State," 20
That the equal protection clause is applicable to undocumented
aliens
becomes a foregone conclusion when viewed in light of the
legislative history behind the Fourteenth Amendment.
J, Brennan's
opinion points to a statement made by Senator Howard, the floor
manager of the Fourteenth Amendment, in the Senate.
Senator How^-
ard stated: "[t]he 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, . . .the equal
21
protection of the laws of the State."
J, Brennan reemphasizes
this when he says that, "the protection of the Fourteenth Amendment
extends to anyone, citizen or stranger, who is subject to the laws
of a State." 22
Very few people would take issue with the conclusion that the
equal protection clause should be applicable to all persons found
within the borders of the United States. But, such a conclusion
2 -}
.
.
"only begins the inquiry." J The real inquiry centers around the
proper test to be applied in determining the constitutionality of
Section 21.031 of the Texas Education Code.
The issue of the pro-
per level of judicial review to be applied in this case was one
which J. Brennan's majority opinion very effectively avoids coming
to grips with.
In the past, the Supreme Court has utilized two standards of
review in relation to an equal protection analysis.
The first
level of judicial review is the rational relationship test.
The
second, and highest level of review, is referred to as strict scrutiny.
ii
These tests make up what has been known as the two tiered
00413
model.
Up until the 1977-78 Term, the Supreme Court had "never
adopted in a majority opinion the use of a standard of review other
than the rational relationship or strict scrutiny - compelling
24
interest standards."
Beginning with that Term and up to the pre-
sent time, the Court has utilized with increasing
frequency an
25
intermediate level of review or middle tier.
Strict scrutiny is applied "when the governmental act classifies
people in terms of their ability to exercise a fundamental right"
or "when the governmental classification distinguishes between
per26
sons, in any term of any right, upon some 'suspect' basis."
If
neither of these criterion are involved, then the rational relationship test should be applied.
The middle tier of judicial review
can best be described as a "balancing test whereby the justices
determine whether the burdens placed on individuals by legislative
classifications are outweighed by
27 the societal end promoted through
the use of the classification."
In effect, the Court is asking
the question; does the end justify the means?
The court has applied this middle tier of judicial review in
situations where strict scrutiny was almost applicable, but the
requisite criterion were not quite satisfied.
Such situations
arise where a politically powerless group, or a very important interest is involved.
Cases dealing with gender based classifications
and illegitimacy have guided us in determining what the Court will
consider as a politically powerless group.
This case, Plyler v.
28
Doe,
may help in determining what the Court will consider as an
important, but not quite fundamental, interest which will trigger
the intermediate level of judicial scrutiny.
ii 00414
Both the United States District Court for the Eastern District
of Texas and the United States Court of Appeals for the Fifth
circuit determined that strict scrutiny may be applicable to this
case.
However, neither court applied that level of scrutiny be-
cause they determined that the statute could not even pass a rational
29
basis, rational relationship, test.
This is contrary to the In re
Alien Children court which applied strict scrutiny in determining
30
whether the statute violated the equal protection clause.
What
should be noted is that each of these lower courts strained to invalidate the statute by using the traditional two tiered model for equal
protection analysis.
The Supreme Court ignores the standards of
review utilized by these lower courts and forges ahead using a standard of review which is never fully described or defined at any
point in J. Brennan's opinion.
Justice Brennan states that the proper standard of review to be
used, "[i]n applying the Equal Protection Clause to most forms of
state action," is that standard which seeks "only the assurance that
the classification at issue
bears some fair relationship to a legi31
timate public purpose."
However, he qualifies this statement by
saying that the Court would not be faithful to their obligations
under the Fourteenth Amendment if they
"applied so deferential a
32
standard to every classification."
J. Brennan hints at the level
of scrutiny which he will apply in this case when he states that
under certain circumstances the Court will seek "the assurance that
the classification reflects a reasoned judgement consistent with
the ideal of equal protection by inquiring whether it may fairly
33
be viewed as furthering a substantial interest of the State."
Such circumstances are said to arise when the legislative classification
ii
00415
is not "facially invidious" but nevertheless causes "recurring con34
stitutional difficulties,"
These statements are a very vague allusion to the use of an internmediate level of scrutiny,
J, Brennan's approach to the proper
level of judicial review appropriate here can only be explained as
being result oriented.
He probably knew that the use of strict scru-
tiny could not be justified and that the statute would most likely
pass a rational basis test.
The use of an intermediate level of
scrutiny was most likely the only way in which a violation of the
Equal Protection Clause could be found to exist.
The use of such
a level of scrutiny was not completely ignored by the lower courts
and in fact, probably would have been used by them had there been
a precedent set by the Supreme Court sanctioning its use.
However,
the Supreme Court has never done that and manages to avoid the recognition of such a level of scrutiny here as well,
J. Brennan's
opinion does not avoid all the criterion connected with the application of the traditional two tiered model, but those that are dealt
with are shrouded in terms which leave open the question of when
such an intermediate level of scrutiny will be applicable in the
future.
Judge Justice, in writing for the United States District Court
for the Eastern District of Texas, suggested that undocumented aliens
may constitute a suspect class under certain circumstances when he
says:
Illegal aliens do not constitute a suspect class when
they are in violation of state laws or regulations
whose underlying purpose is in conformity with a federal objective or end. The issue of their suspectness
as a class is raised, however, by the uncontrovertdd
history of their abuse and exploitation in certain conditions and circumstances unrelated to the federal base
for their exclusion.
ii
00416
He then suggests that undocumented aliens should be considered a
suspect class, thus requiring strict scrutiny, "in situations where
the state acts independently of the federal exclusionary purposes,
accepts the presence of illegal aliens, and then subjects them to
36
discriminatory laws."
Judge Johnson, writing for the United States Court of Appeals
for the Fifth Circuit, also found that, "the characteristics of the
group of illegal aliens excluded from benefits
37 under Section 21.031
may be such that suspect status xs proper."
The court then goes
on to differentiate, just as J. Justice did, between discrimination
for permissible and impermissible purposes.
J. Johnson states: "we
recognize that 'plaintiffs' status as aliens may constitutionally
support their exclusion from the governing functions of the states.
But we have ascertained no legal precedent for determining that the
commission of a federal misdemeanor may in and of itself
serve as
the legitimate basis for state-imposed disabilities," 3 8 Whereas,
the In re Alien Children court seems to reach the conclusion that
39
the class of undocumented aliens is not a suspect class.
Justice Brennan rejects the class of undocumented aliens as
suspect "because their presence in this country in40
violation of
federal law is not a 'constitutional irrelevancy.'"
Instead, he
focuses on the child's lack of culpability for his status as an
illegal alien.
Thus differentiating the
41 situation of the undocu-
mented child from that of his parents.
This is reflected in J.
Brennan's statement that, "[e]ven 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 42
children does not comport with fundamental conceptions of justice."
s
00417
This one statement reflects that these undocumented children are
somehow a class within a class which is due a separate and higher
level of scrutiny than their parents.
It also reemphasizes the
Court's result oriented approach to this case, in that it reflects
a reliance on traditional concepts of justice and not strict constitutional standards for the analysis of the issues,
A differentiation between the status of the parent and that of
the child and a reliance on natural justice theories to justify the
use of a heightened level of scrutiny can be found in each of the
lower courts' opinions as well.
J, Justice stated that, "[w]hile
the undocumented minor plaintiffs are of course legally culpable and
subject to deportation, they can hardly be held morally responsible
.
for their presence here." 43 J. Johnson agrees with .this. principle
when he says, "[t]he plaintiffs undeniably stand in violation of
44
federal law, but certainly they have committed no moral wrong,"
The In re Alien Children court gives a good explanation of the level
of scrutiny that should be applied in such situations when it writes:
"[c]ases involving classifications which punish children for acts
committed by their parents are not subject to strict judicial scrutiny.
They nevertheless are invalid if they are not substantially
related to a permissible state interest.
. . .The
45 legislative means
as well as the ends are subject to examination."
Justice Powell, in his concurring opinion, follows this line of
thought by stating that 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,"^6
J, Powell analogizes
the status of these undocumented alien children to that of
ii
418
illegitimates.
This analogy is totally unsuppoartable in that ille^
gitimacy is an immutable characteristic whereas the characteristic
of being undocumented is not.
This line of thought completely ignores the plain and straight
forward language of the federal law which vests upon these undocu^
mented aliens their illegal status.
The statute reads: "[a]ny alien
who (1) enters the United States at any time or place other than as
designated by immigration officers, or (2) eludes examination or
inspection by immigration officers. , .shall. . .be guilty of a mis47
demeanor."
The statute makes no differentiation between aliens
on the basis of age and requires absolutely no form of culpability
to be guilty of its violation.
Chief Justice Burger, in his dissenting opinion, attacks this
form of rationale by saying that, "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
48
lack 'control.'"
He attacks
the majority opinion for its improper
construction of the federal immigration laws when he states:
"[ille-
gality of presence in the United States does not - and need not depend on some amorphous
concept of 'guilt11 or 'innocence' concerning
49
an alien's entry."
C. J. Burger then goes on to say that, "a
State's use of federal immigration status as a basis for legislative
classification is not necessarily rendered
suspect for its failure
50
to take such factors into account."
C. J. Burger also attacks J.
Powell's analogy to illegitimate children when he says:
"[t]he
state has not thrust any disabilities upon appellees due to their
'status of birth.' Rather, appellees' status is predicated upon the 51
circumstances of their concededly illegal presence m this country."
In fact, J1. Brennan recognizes that "undocumented status" is not
"an absolutely immutable characteristic since it is the product of
conscious, indeed unlawful, action." 52
Following an examination of the type of classification involved,
J. Brennan focuses on the nature of the right involved.
His majority
. .
.
53
opinion rejects classifying education as a fundamental right.
However, he goes to great lengths to describe the unique and invaluable
role that education plays in our modern society. He recognizes that
education "has a fundamental role in maintaining the fabric of our
54
society."
He argues that even though education, may be a form of
"governmental 'benefit'" it is still distinguishable "from other forms
of social welfare legislation." 55
J. Brennan's opinion and each of
the lower courts' opinions depend, to a certain extent, on San Antonio
56
Independent School District v. Rodriguez
in determining the nature
of education as a right and the proper level of scrutiny to be applied.
The Rodriguez court was faced with a constitutional challenge to
the Texas system of financing public education.
The true thrust of
the case was an attack on the State's fiscal policies and not on its
system of public education, as is involved here.
The plaintiffs,
appellees', in Rodriguez, had argued that strict scrutiny should be
applied in determining whether the system of school financing violated
the Equal Protection Clause.
However, J. Powell, in his majority
opinion, utilized a rational basis test on the theory that, "[w]hatever merit appellee's argument might have if a State's financing system occassioned an absolute denial of educational opportunities to
any of its children, that argument provides no basis for finding an
interference with fundamental rights where only relative differences
m spending levels are involved." 5 7 In Rodriguez, there was no basis
ii 00420
for finding that the system failed "to provide each child with an
opportunity to acquire the basic minimal skills necessary for the
enjoyment of the rights of speech and of full participation in the
58
political process."
The plaintiffs there had argued that educa-
tion should be a fundamental right because it was "essential to
the effective exercise of First Amendment
59 freedoms and to intelligent utilization of the right to vote."
The lower courts here,
focused on the language, in J, Powell's opinion, which suggested
that the Rodriguez court was making no determination of the proper
level of scrutiny to be applied where an "absolute denial of educational opportunities" might exist.
Judge Justice recognized that the Rodriguez "opinion is conspicuous in its efforts not to foreclose strict scrutiny in response
to constitutional
/- n challenges to absolute deprivation of educational
opportunity."
J. Johnson, of the Fifth Circuit Court of Appeals,
focuses on the unique aspect of this case when he says, "education
has yet to be classified as a fundamental interest sufficient to
invoke strict scrutiny under the equal protection clause; but
neither this Court nor the Supreme Court has ever been faced with a
statute absolutely barring
some resident children from all access to
free public education." fi 9 Both of these courts determined that such
an absolute deprivation of the right to an education may require a
63
heightened form of judicial review.
The In re Alien Children court, on the other hand, found that
64
"strict judicial scrutiny should be applied."
The court went on to
state:
The bases for this conclusion are the following:
the statute absolutely deprives undocumented
children of access to education thereby causing
them, great harm; there is a direct and substantial
relationship between education and the explicity
guaranteed right to exchange ideas and information;
and the provision of education is not a social or
economic policy but a state function.
In its conclusion, the court states;
"access to education is a
fundamental right .
Because access to a free public education was the major issue
in these cases, the United States District Courts both found that
the policy
of some school districts, of charging tuition to
undocumented aliens, was a form of discrimination on the basis of
67
wealth.
However, the Fifth Circuit Court of Appeals never addressed
this issue, therefore it was never reached by the Supreme Court
either.
Justice Brennan*s opinion mainly relies on the fact that education plays such an invaluable role in our society and that its
denial causes such enormous hardships to justify the use of a
heightened form of scrutiny.
He points to the fact that, "[b]y
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." 6 8 In light of this
unique, though not fundamental, right, J. Brennan announced the test
that would be used "[i]n determining the rationality of "Section
21.031." 69
He believed that the Court should "take into account" the
"costs to the Nation and to the innocent children who are" the vic70
tims of such a statute.
He stated that by considering "these
countervailing costs, the discrimination contained in" Section 21.031
"can hardly be considered71rational unless it furthers some substantial goal of the State."
Though J. Brennan speaks in terms of the
51
"rationality" of the statute, he adds to this the furthering of
72
some "substantial goal."
In the application of this level of
review, it is hard to tell the difference between his substantial
goal and the traditional compelling interest standard.
But the
standard of review itself, is one which the concurring Justices
agree with.
Justice Marshall in his concurring opinion, agrees with the
use of a standard of review which employs "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
73the basis upon which the particular
classification is drawn.'"
He disagreed with the majority opinion
in that he believes "that an individual's interest in education is
fundamental." 74
Justice Blackmun's concurring opinion agrees with the requirement that the State come forward with "something more than a rational
75
basis" to justify the statute.
He adopts the rational of the Rod-
riguez court that "it is not the province of this Court to create
substantive constitutional
*7 £ rights in the name of guaranteeing equal
protection of the laws."
Then he seems to violate this precept
by equating the right to an education with the right to vote, thus
making education an 77
"extraordinary right" due the same level of
scrutiny as voting.
J. Blackmun points to the fact that the denial
78
of either of these rights creates a "discrete underclass."
He
states that, "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." 79
ii
00423
Justice Blackmun justifies his analysis of the right to an
80
education as being "fully consistent with Rodriguez."
The only
person who could really say whether or not this is a valid statement
is J. Powell, and he does an excellent job of ignoring the issue.
He completely avoids the issue of the nature of the right involved
and centers his concurring opinion around the type of classification
drawn by the statute.
J. Powell finds an analogy between the status
of these undocumented alien children and
81 that of illegitimates, thus
requiring a heightened form of review.
He states that "[a] legis-
lative classification that threatens the creation of an underclass
of future citizens and residents cannot be reconciled with
one of
82
the fundamental purposes of the Fourteenth Amendment."
J. Powell
states that the proper level of review to be applied is one which
requires "that the State's interest be substantial and that 8the
means
3
bear a "fair and substantial relation" to those interests."
Chief Justice Burger, in his dissenting opinion, attacks the
level of scrutiny used by the Court by saying that "[i]f ever a court
was guilty of an unabashedly
result-oriented approach, this case is
84
a prime example."
He recognized that, "[t]he importance of educa85
tion is beyond dispute"
but, then goes on to say that "the impor-
tance of a governmental service does not elevate it to the status 8 of
6
a "fundamental right" for purposes of equal protection analysis."
The Chief Justice points to J. Powell's opinion in the Rodriguez
case, in condemning the use of an intermediate level of scrutiny,
where J. Powell states, "to the extent this Court raises or lowers
the degree of 'judicial scrutiny'1 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
87
which the Court lacks both authority and competence.' "
He suggests
that a rational basis test should have been used here when he says,
"our inquiry should focus on and be limited to whether the legislative classification at 8 issue
bears a rational relationship to a legi8
timate state purpose."
He believes that the level of judicial
review applied in this case should not have been affected by the fact
that the right involved is "access to public education - as opposed
to legislation allocating other important government
benefits, such
89
as public assistance, health care, or housing."
Instead the Court
patches "together bits and pieces of what might be termed quasisuspect-class and quasi-fundamental-rights analysis, 90"arid spins out
a theory custom-tailored to the facts" of this case.
The lower courts, in the Plyler case, found that Section 21.031
of the Texas Education Code failed to pass a rational basis test.
The State attempted to prove that by accepting these undocumented
children into the school system and educating than, the citizens and
legally admitted children of the State suffered a detrimental impact.
The primary purpose of the statute was to "employ public educational
funds to provide education
to United States citizens and legally
92
admitted aliens."
However, J. Justice determined that the fact
that "a law saves money" is "not sufficient justification" for pas93
sing a rational basis test.
He then goes on to say that, "the
states' adoption of a federal criterion, in this case the illegality
of the child's presence in the United States, in itself," does not
"provide a rational justification for differential treatment by the
94
state."
The reason for this is that "while distinctions in immi-
gration
status
legitimate
bases
for federal
they
95 J. classification,
are normally
of are
no concern
to the
states."
Justice found that
91
the Texas statute did not "propose to serve any federal purposes"
nor was there any "truly rational connection between the ends
96
sought and the means employed."
He believed that the exclusion
of "illegal immigrant children because of" the problems which educating them creates, "is both irrational, because the undocumented
children as a class are basically indistinguishable from the legally
resident alien children in terms of their needs,
9 7and ineffectual,
because the dominant problem remains unsolved."
Thus, "[b]y vir-
tue of its lack of
98 rationality" the statute "violates the equal protection clause."
Judge Johnson, of the Fifth Circuit Court of Appeals, determined
that "if illegal aliens are granted free education, legal aliens
99 and
citizens will not be absolutely deprived of a free education."
In
fact, the only true effect will be a decline in the quality of education "and a mere decline in the quality of education that falls
equally on the entire population does not give rise to a claim of
constitutional dimension."''"00
He goes on to say that, "a states'
desire to save money cannot be the basis of the total exclusion from
public schools of a group of persons who are entitled to the equal
protection of the laws of
Texas and who share similar characteristics
101
with included children."
The In re Alien Children court found that Texas had failed to
show that "excluding children from school is in any
way necessary
102
to the improvement of the education in the state."
The court
then uses the State's arguments in Rodriguez to rebut its arguments
here when it refers to the fact that Texas argued in Rodriguez,
that there was "no evidence that the quality of education is 103
somehow
strictly tied to the amount of money expended on each child."
ii 00426
However, they now wish "the court to assume without any credible
supporting evidence that a proportionately small diminution of the
funds spent on each child will have a grave impact on the quality
of education.""'"0^
The State of Texas also asserted that the statute had an additional goal of lessening the incentives for the entrance of aliens
into the United States.
J. Johnson found that the means used to
accomplish such a goal, which is "entirely consistent with federal
105
immigration policy," must "be rationally related to that goal."
J. Justice found that the statute did not have "either the purpose
or the effect of keeping illegal aliens out of the State of Texas.""'"06
J. Johnson found that, "the statute is not rationally related to its
asserted goal" because
107 it was not the most effective means of accomplishmg that goal.
The In re Alien Children court, on the other
hand, found that such a goal was an impermissible one because, "[m]easures intended to increase or decrease immigration, whether
legal or
108
illegal, are the province of the federal government."
Chief Justice Burger's dissent found that the statute does
pass a rational basis test.
He observes that the primary conten-
tion of the State is that Section 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 109
financing system
against an ever-increasing flood of illegal aliens."
He goes on
to say that, "such fiscal concerns alone could not justify discrimination against a suspect class or an arbitrary 110
and irrational denial
of benefits to a particular group of persons."
However, the "prudent conservation of finite state revenues is" not 'Jper se an illegitimate goal." 111
ii
The Chief Justice concludes that, "it simply is
00427
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 pro112
vide for persons lawfully present."
Because of the fact that
"illegal aliens have no right whatever to be here. . .the State may
reasonably, and constitutionally, elect not to provide them with
governmental services at the expense of those who are lawfully in
113
the State."
Chief Justice Burger points out that, "the federal government
has seen fit to exclude illegal aliens from numerous social welfare
programs" and that such exclusions "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.""*""^
He goes on to say that the funds saved by
enforcing this statute could be used "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," 115
and that each of these uses would constitute a
legitimate purpose.
Therefore, according to the Chief Justice,
the statute should be able to pass a rational basis test.
However,
the majority of the Court felt that the application of such a test,
under these circumstances, was totally improper.
Justice Brennan, in applying an intermediate level of judicial
review, first attacked the argument that "the undocumented status
of these children" in and of itself was "a sufficient rational basis
for denying them benefits that a State might choose to afford other
116
residents."
ii
tection
He recognized that when dealing with an equal pro-
00428
issue, the courts should "be attentive to congressional
policy."
117
However, in his analysis he was "unable to find in the
congressional immigration scheme any statement of policy that might
weigh significantly" in favor of "the States" authority to deprive
these children of an education." 118
J. Brennan finds "no indication
that the disability imposed by "Section 21.031 "corresponds to any
119
identifiable congressional policy."
In fact, "the classification
reflected in 'the statute' does not operate harmoniously within the
120
federal program."
He bases this conclusion on the theory that
the State has no way of knowing which, if any, of these undocumented
children "will in fact be deported until after deportation proceedings have been completed" therefore, it is "difficult for the State
to justify a denial of education
to a child enjoying an inchoate
121
federal permission to remain."
J. Brennan then goes on to say
that the only way the State can justify its use of undocumented
status "as a criterion for its own discriminatory policy," is if
they can "demonstrate that the classification is reasonably
122 adapted
to "the purposes for which the state desires to use it."
At this point, the Court has reached the ultimate issue presented
by the case.
As C. J. Burger terms it:
"[t]he dispositive issue. . .
is whether, for purposes of allocating its finite resources, a State
has a legitimate reason to differentiate between persons who
are law123
fully within the State and those who are unlawfully there."
fore, the analysis at this point has two steps to it.
There-
The Court
must first determine if the conservation of limited state funds is a
legitimate goal.
Then, if it is, whether or not the classification
is reasonably related to that goal.
The Court recognizes that the State's main argument is that the
major purpose of the statute is "the preservation of the state's
20
00429
limited resources for the education of its lawful residents." 124
Both J. Blackmun and J. Powell found that the statute was not sup125
ported by or related to any substantial state interest.
J. Bren-
nan 's majority opinion completely ignores the issue of whether or
not the conservation of a state's limited financial resources for
education is a legitimate interest.
One can only assume that he
deems it be a legitimate interest, because he goes directly to an
analysis of "three colorable
126 state interests that might" justify
the classification used.
However, his use of these three cate-
gories is itself confusing because he uses the term "state interest"
to describe them.
If we take J. Brennan at his word, then he fails
to even address the ultimate issue of whether the classification
used by the statute is rationally related to the state's interest.
The first interest that J. Brennan attacks is
that of protecting
127
"the State from an influx of illegal immigrants."
To discredit
this State interest he states that Section 21.031 "hardly offers
an effective method of dealing with an urgent demographic or economic
problem." 128 He then goes on to say that the evidence in the record
failed to show "that illegal entrants impose any significant burdens
129
on the State's economy."
This is a totally ridiculous statement
in light of J. Brennan*s very own majority opinion in De Canas v.
130
Bica,
or possibly J. Brennan is suggesting that the effect that
illegal immigrants have on the Texas' economy is different from that
which it has on California's economy.
His analysis here suggests
nothing more than the fact that the statute is not the most effective method of achieving the state interest.
The second interest J. Brennan addressed is the contention by
the State that "undocumented children are appropriately singled out
for exclusion because of the special burdens they impose on the
131
State's abxlxty to provxde hxgh qualxty publxc educatxon."
He
attacks this assertion by pointing out that "the record in no way
supports the claim that exclusion of undocumented children 132
is likely
to improve the overall quality of education xn the State."
J. Brennan ignores the issue.
Again,
The asserted state interest is conser-
vation of limited financial resources for education, not the improvement of the quality of public education.
J. Brennan goes on to say
that where "educational cost and need" are concerned "undocumented
children are 'basically
indistinguishable' from legally resident
133
alien children."
This statement xs basxcally true except for
one factor, sheer numbers.
The number of undocumented aliens in the
State is for all practical purposes indeterminable.
Therefore the
effect, on a state's limited financial resources, of a judicial mandate to educate these undocumented children is itself indeterminable.
The final interest put forth by the State is the assertion that
the undocumented children's "unlawful presence within the United
States renders them less likely than other children to remain within
the boundaries of the State, and to put their
134 education to productive
social or political use within the State."
In layxng to rest
this final argument, J. Brennan concludes that Texas "has no assurance that any child, citizen or not, will employ the education pro135
vided by the State within the confines of the State's borders."
However, the fact remains that if the federal government vigorously
enforced its immigration laws, these children would not be in the
State at all, and thus there would be no need to educate them.
Justice Brennan concludes his opinion by stating that for Texas
to be able "to deny a discrete group of innocent children the
(10431
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.
1
No such showing was made
o/-
here."
This is J. Brennan's conclusion in spite of the fact
that he never addresses the ultimate issue of whether or not the
conservation of a state's limited financial resources is a legitimate, much less a substantial, state interest.
Justice Brennan's majority opinion can only be described as a
constitutional absurdity.
However, this statement in itself may
avoid the real question, which is; was the decision right.
The
answer to this question has to be yes, the decision of the Court was
right.
By strict constitutional standards, the decision was an
unquestionably wrong one, but when one weighs the detrimental cost
of not educating these children against the benefits gained, the
conclusion is unavoidable, that the decision of the Court was a proper one.
Even C. J. Burger recognizes this fact in his dissenting
opinion when he states:
"[d]enying 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
137
costs of educating them."
The Court found 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." 138
Most undocumented Mexican immigrants are young, single
males.
It has also been determined that "most undocumented Mexican
139
immigrants remain in the U.S. for less than one year."
The wives
ii
00432
51
and children, of those undocumented aliens that are married, are
rarely brought along "due to the increased risk of detection by U.S.
authorities and to the higher cost of supporting them in this country." 1 4 0
However, those that do bring their families along remain
in this country an avaerge of 6.5 years and, in excess of, 90 percent
of these undocumented aliens plan to establish the United States as
their permanent residence and eventually become naturalized citizens.141
In the initial Plyler case, J. Justice made a finding of fact that
the families that were represented in the suit had "lived in the city
142
of Tyler for a period of three to thirteen years."
An additional
finding made was that each of these families included "at least one
child, not of school age, who is a citizen of the 143
United States by
virtue of his or her birth xn the United States."
Undocumented alien children comprise a relatively small portion
of the total undocumented alien population.
Studies reveal that
less than three percent of the undocumented Mexican immigrants which
have been interviewed, "report ever having children in U.S. public
144
schools."
However, any statistics available concerning undocumented
aliens are totally unverifiable.
In fact, "because of the clandestine
nature of the unlawful resident population, any efforts
to measure
14 5
their numbers are fraught wxth great uncertainty."
This is due to
the fact that "it is unrealistic to expect unlawful residents to
cooperate fully in an interview dealing with their legal status." 146
However, whatever their numbers may be, the Court's decision here
forces the states to accept the duty of educating them, a duty which
has been ignored for too long.
It is a duty to insure that every
member of our society is able to operate harmoniously within it by
00433These
possessing a certain minimal level of skills.
children are
here and most likely, are here to stay.
Therefore, they must be
allowed to gain those skills necessary to make a meaningful contribution to our society.
Such skills are primarily gained, by any
child, through our nation's public education system.
The Decision^ Affect On Bilingual Education in the Texas Public Schools
Texas has the second highest concentration of legally admitted,
permanent resident aliens from Mexico.
number of resident aliens.
Only California has a greater
The education of the children of Mexican
immigrants carries with it significant problems.
One of these prob-
lems is the effective education of these students.
The vast majority
147
of immigrant students are of limited English-speaking ability.
Therefore, their education requires more than the normal school curriculum.
One study indicates that possibly148
40 percent have a very
limited or no English-speaking ability.
The effect of this recent Supreme Court decision will manifest
itself in an increase in the number of children, with limited Englishspeaking ability, to enroll in Texas public schools.
Estimates of
the number of undocumented
149 alien children presently in Texas range
from 10,000 to 111,000.
The disparity between these two figures
is due to the clandestine nature of the illegal alien population
within our borders.
The proper figure probably lies somewhere in
between, but a dependence on any statistical analysis in the area of
undocumented aliens is a highly risky proposition.
The actual number of school age undocumented aliens is not
totally irrelevant, but at this point, it makes little difference
what the actual numbers are.
Each and every one of these children
are entitled to a free public education, if they are residents of
ii 00434
Texas.
Not all of these children can even be expected to show up
and register in the public schools.
ably not register.
In fact, a majority will prob-
Their parents will still fear the specter of
deportation, and others will probably not care to avail themselves
of such a free education.
However, some will register, and the num-
ber that does will probably not be insubstantial.
Those who do
show up to register, will add to the number of "students of limited
English proficiency" already enrolled in Texas public schools. 150
151
The Texas Bilingual Education Act was passed in 19 73.
The
purpose of the Act is to "insure equal educational opportunity to
every student" by establishing "bilingual 152
education and special
language programs in the public schools."
However, the opening
sentence of the act makes clear that, "[ejnglish is the basic language
153
of the State of Texas."
So that the main thrust of the Act is
to meet the needs of these students with limited English proficiency 154
"and facilitate their integration into the regular school curriculum.
Section 21.452 of the Texas Bilingual Education Act defines
"students of limited English proficiency" as "students whose primary
language is other than English and whose English language skills
are such that the 155
students have difficulty performing ordinary classwork in English."
The great majority of undocumented alien chil-
dren entering the Texas public school system will fall within this
definition,
therefore, increasing the need for bilingual and special
language programs in the public schools.
The institution of a bilin-
gual education program is triggered when a school district "has an
enrollment of 20 or more
156 students of limited English proficiency in
the same grade level."
The increased need for bilingual and spe-
cial language programs will put a strain on two resources.
ii
00435
The
first being financial resources and the second is the limited number
of teachers qualified to teach bilingual programs.
For Texas, the financial problem will be the easiest to overcome.
State and local funds provide 90 percent of the funding for
the public schools.
The state's general fund, primarily made up of
revenues from consumer taxes, provides funds to the local school
districts on the basis of average daily attendance.
Therefore, as
the number of students enrolled rises, so will the state funding.
Local funds, derived from the local property tax, provides about 4 5
157
percent of the funds.
This amount does not rise as the student
population rises.
The majority of Mexican immigrants are concentrated in the counties bordering Mexico.
in Texas.
These are among the poorest school districts
Because of the low socioeconomic status of these Mexican
immigrants, they have a very limited "ability to improve local economies
158
and to accumulate taxable property wealth."
Thus, they do little
to increase the available local funds for public education.
The federal government provides 45 percent of the funds available for bilingual education. 159 The State provides some funds, a
little more than $50 per student of limited English proficiency,
i fio
but the majority of the balance is provided for by local funds.
Therefore, the majority of the expense in providing bilingual education falls on the local school districts.
Because the majority of
these immigrants are located in the poorer school districts, this
expense falls on the districts least capable of providing the needed
funds. ^ ^
These financial problems are compounded by the course that the
current administration has taken towards all social programs.
ii
00436
The
current "administration has proposed reductions in educational fund162
ing of about 37 percent."
Allocations for bilingual education
were cut by 9.1 percent in the 1982-83 school year.
An additional
cut of 16 percent, from the 1982-83
level of funding, has been pro163
posed for the 1983-84 school year.
Dallas is a good example of how these funding cuts effect a
district's bilingual education program.
For the 1981-82 school
year, the Dallas area received $1,518,562
bilingual education.
vious year's funding.
in federal funds for
This was an 8.4 percent increase over the preIn the 19 82-83 school year
$1,105,934 in federal funds,
they received
a decrease of $412,628 or 27 percent.
The proposed allocation for the 1983-84 school year is $929,000.
This is a decrease of 38.8 percent over
164 a two year period, just
in the area of bilingual education.
In spite of the fact that
Texas is one of the most financialy stable states in the United
States, its local school districts will be hard pressed for the funds
needed to institute these bilingual programs.
The real threat to the education of these children is the lack
of qualified teachers available to teach bilingual and special
language programs.
A 19 76-77 study revealed that there were "34,000
teachers nationwide who were minimally qualified to teach in a bilingual education program" compared to an "estimated
3.6 million chil165
dren nationwide" in need of such programs.
teacher ratio of 105 to 1.
This xs a student to
Because the concentration of students
in need of such programs is in relatively poorer school districts,
teachers salaries are lower, and therefore the incentive to achieve
bilingual certification is negligible.
There is simply no real finan-
cial reward to be gained from being a bilingual teacher.
ii
00437
The
State recognizes only one base pay and increments scale for all
teachers. 166
However, the State does recognize emergency situations
where a lack of qualified teachers may exist thus requiring "the
hiring of teaching personnel on a bilingual emergency permit." 16 7
The current, Texas bilingual education laws are the result of
168
United States v. State of Texas,
a suit brought in the United
States District Court for the Eastern District of Texas.
J. Justice
again got an opportunity to attack the education laws of Texas, two
years after his decision in Plyler.
The court found that the Texas
system of bilingual education was a violation of the equal protec169
tion clause, Title VI and the Equal Educational Opportunity Act.
Even before the Fifth Circuit Court of Appeals could review this
decision, Texas chnaged its bilingual education laws. The.Court of
Appeals reversed the lower court and remanded the case,
but it
didn't matter, Texas had already conceded defeat and changed its
laws. 170 The Court of Appeals found that these new Texas laws con171
formed to federal guidelines.
Therefore, the Texas bilingual
education laws would probably pass any further constitutional or
statutory challenge.
Thus, there is little question that the Texas
bilingual education system is not only non-discriminatory but comprehensive in scope and potentially effective.
The only question
remaining concerns whether or not it can effectively be implemented
to educate these undocumented alien children.
The major problem
will be in training a sufficient number of teachers to meet the
burden of educating these children.
Conclusion
For many reasons, the Supreme Court's decision can be considered as the proper one.
ii
The best reason is that "it is senseless
00438
for an enlightened society to deprive any children - including illegal
172
aliens - of an elementary education."
Such a deprivation puts
these children at a "severe disadvantage in both realizing their own
personal potential and in their productivecontribution
to society and
173
to the communities in which they reside."
However, the closeness
of the decision indicates that Texas may have won had they been able
to justify the statute as furthering a substantial state interest.
Texas had a difficult time in merely justifying the passage
of the statute, much less proving a substantial state interest.
Even
before the statute was passed, Texas "never attempted to examine
174
the impact of undocumented children on the schools."
Before Sec-
tion 21.031 was amended to exclude undocumented aliens, John Hill,
Attorney General of Texas, issued an opinion which indicated that
illegal alien children
were probably entitled to the benefit of free
175
public education.
the statute.
In spite of this, the Texas legislature amended
The In re Alien Children court could not even uncover 27 ^
the legislative history behind the amendment, if one in fact existed.
By passing this amendment in the manner in which they did, Texas
really bit off more than it could chew.
tion which it could not support.
The State adopted a posi-
However, even though some of the
blame can be attributed to Texas, a great deal of it should rest
on the shoulders of the federal government.
Because in handing down
this decision, "[t]he 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
177 of
uncountable millions of illegal aliens across our borders."
Each of the courts involved in this litigation, accuse the
00409
State of relegating these children to the status of a second-class
individual by denying them an education.
However, it is not the
State which places them in such a sub-class status, it is the federal
government which does this.
The federal government is responsible
for the very existence of these undocumented aliens within our borders. 178 Once the alien has crossed over our borders, most will
179
"enjoy a form of de facto amnesty."
The problem of illegal entry
by Mexican aliens is one which is increasing at an alarming rate.
In 1979, "over one million illegal entrants were apprehended and
reliable sources within the Border Patrol estimate that
180 for every
illegal alien caught, two or three slipped through."
J. Powell
recognized that the statefe '^responsibility, if any, for the influx
of aliens is slight compared
181 to that imposed by the Constitution on
the federal government."
Therefore, the federal government's
refusal to deal with the problem, in itself, relegates undocumented
aliens to a sub-class status.
A refusal to act not only encourages
illegal entry into this country, it also encourages the exploitation
of these undocumented aliens as a source of cheap labor.
The Court itself recognizes that the major "incentive for ille182
gal entry into" this country "is the availability of employment."
In a 1972-73 study of documented Mexican immigrants, 49.9 percent
of those interview, said that work, wages, and better living 183
conditions were their primary reasons for coming to this country.
It
should be pointed out that the same study revealed that 9.7 percent
came here to receive
better educational opportunities for themselves
184
and their children.
Therefore, considering Mexico's rapidly
deteriorating economy, the number of illegal aliens in this country
can only be expected to rise in the future.
00440
In 1976 there were an estimated 1,789,500 school age children
of limited English proficiency in the United States.
By the year
2000, this number is expected to increase to 2,630,000.
This is
an increase of 46.9 percent, and these figures are only for children
of Spanish background. 18 5 The education of these children is a
problem which has not totally been ignored by Congress,
Congress
has enacted the Bilingual Education Act which attempts to deal with
18 6
the problem.
However, as a whole, our nation has really failed
to come to grips with the bilingual education problem.
The problem of bilingual education reflects this nation's
overall "deficiency in foreign language skills.
in fact, "[f]ew-
er than four percent of our public high school
graduates have more
than two years of foreign language study." 188 Such figures could
present a "very real threat to our national security and our econo189
mic health."
In the areas of industry and commerce alone, an
inability to speak other than the mother tongue can create serious
problems.
There is a real "need to be able to converse freely on
general everyday topics, to be able to understand what is said
between foreigners at conferences,
and to be able to mix socially
190
with foreign businessmen."
national in scope .
Thus, our nation's problem is inter-
Likewise, this nation's problem with the educating
of illegal alien children is one shared by almost all Western nations.
All of the Western European nations enjoy the benefits of some
form of immigrant workers.
It has been determined that "[o]ne prob-
lem common to all the Western European receiving countries is school191
ing."
In Switzerland, France, and Germany, school attendance by
an immigrant worker's children is compulsory.
The trend in these
European
schools
is192towards1 the use of the
native tongue
in educating
them.
0 0children's
441
32
It has commonly been recognized that education and training
are critical to the economic advancement of immigrant children.
However, the degree to which the school system is open and responsive to the needs of immigrant children depends on the political
pressure that the immigrant whoker can exert on their behalf.193
Thus, "[o]ne of the key distinctions between migrant labor in the U.S.
294
and in Europe lies xn the lack of any specific social provisions.
Instead of dealing with the problem of illegal immigrants, our federal government chooses to ignore it.
Congress most likely ignores the plight of illegal aliens
because it is a very touchy political issue.
rich nation.
Mexico is now an oil
Mexico also acts as a political buffer zone between
the United States and radical Central American countries.
Mexico is a nation whose friendship we need.
In short,
If Congress acts too
aggressively towards the problem, our nationte relationship with
Mexico could be jeopardized.
Add to this the fact that a large
majority of the employers of these illegal aliens have very strong
political lobbies.
Because it is a rather volatile political issue.
Congress has chosen to ignore it;
thereby, laying the ground work
and providing the incentive for the Supreme Court's decision.
The Court's decision "rests on such a unique confluence of
theories and rationales that it will likely stand for little beyond"
195
the result in this particular case.
The Court finds that edu-
cation is not a fundamental right and that illegal aliens are not
a suspect class.
The Court determines that a state cannot deny
a free public education to illegal alien children.
by the Court is the real question mark in the case.
The test used
The Court tells
us "little more than that the level of scrutiny employed to strike
ii 00442
down the Texas law applies only when illegal alien children are
196
deprived of a public education."
However, the Court would prob-
ably subject any statute, which deprives an undocumented alien child
of a social benefit, to the same level of scrutiny,
if the social
benefit was the type of benefit which all other children were entitled to receive.
To prove this, the test used by the Court has
to be subjected to two hypothetical situations.
First, let us suppose that the right involved is the same, but
the class being denied that right is different.
If illegal aliens
were immediately deported upon their discovery in this country,
then undeniably their children, whether citizens or not, would have
to be deported with them.
If such laws were vigorously enforced,
then the class's connection between itself and any right to a social
benefit, whether or not a fundamental right, would be so tenuous
as to be nonexistent, thereby justifying the denial of an education
to them.
Now let us suppose that the class remains the same, undocumented alien children enjoying a de facto form of amnesty, but the
social benefit changes.
If the social benefit were one which all
other children were entitled to, it would be impossible to prove
that the class of undocumented alien children was somehow less
deserving of the benefit.
In this situation, a violation of the
equal protection clause could be found.
If this decision stands for anything, it stands for the proposition that the Court will no longer be tied down by substantive
constitutional law standards where sensitive social issues are
involved.
That whenever the issue justifies its use, the inter-
mediate level of scrutiny will be used to scrutinize the issues of
00443
a case.
The Court does not say when such a level of scrutiny should
be used because it will not know itself until the issue faces them.
It was properly used here to declare a particularly discriminatory
statute unconstitutional.
The decision was a proper one.
35
00444
FOOTNOTES
1.
Tex. Educ. Code Ann. §21.031 (Vernon Supp. 1982).
2.
Id.
3.
In re Alien Children Education Litigation, 501 F. Supp. 544
(S.D. Tex. 1980) .
4.
458 F. Supp. 569 (E.D. Tex. 1978).
5.
501 F. Supp. 544 (S.D. Tex. 1980).
6.
458 F. Supp. at 584.
7.
Doe v. Plyler, 628 F.2nd 448, 454 (5th Cir. 1980).
8.
Plyler v. Doe, 102 S. Ct. 2382 (1982).
9.
Id. at 2388.
10.
102 S, Ct. 2382, 2402 (1982) (Marshall, J., concurring); 102
S. Ct. 2382, 2402 (1982) (Blackmun, J., concurring); 102 S. Ct.
2382, 2405 (1982) (Powell, J., concurring).
11.
102 S. Ct. 2382, 2408 (1982) (Burger, C. J., dissenting).
12.
102 S. Ct. at 2388.
13.
501 F. Supp. at 567.
14.
U. S. Const, amend. XIV, §1.
15.
628 F.2d at 454; 501 F. Supp. at 568; 458 F. Supp. at 579.
16.
Id.
17.
102 S. Ct. at 2391.
18.
Id at 2392.
19.
Id.
20.
Id at 2409.
21.
Id at 2393-2394.
22.
Id at 2394.
23.
Id.
00445
Footnotes - 2
24.
J. Nowak, R. Rotunda, J. Young, Constitutional Law, at 522-527,
~526~ (19 78 )T
25.
Id at 526.
26.
Id at 524.
27.
Id at 526.
28.
102 S. Ct. 2382 (1982) .
29.
628 F.2d at 458; 458 F. Supp. at 585.
30.
501 F. Supp. at 564.
31.
102 S. Ct. at 2394.
32.
Id.
33.
Id at 2395.
34.
Id.
35.
458 F. Supp. at 583.
36.
Id.
37.
628 F.2d at 458.
38 .
Id.
39.
501 F. Supp. at 565.
40.
102 S. Ct. at 2398.
41.
Id at 2396.
42.
Id.
43. 458 F. Supp. at 582.
44.
628 F.2d at 457.
45.
501 F. Supp. at 573.
46.
102 S. Ct. at 2406.
47.
8 U.S.C. §1325 (1977) .
48.
102 S. Ct. at 2409.
49.
Id at 2410.
50.
Id.
00446
Footnotes - 8
51.
Id.
52.
Id at 2396-2397.
53.
Id at 2398.
54.
Id at 2397.
55.
Id.
56.
411 U.S. 1 (1973).
57.
Id at 37.
58.
Id.
59.
Id at 35.
60.
Id at 37.
61.
458 F. Supp. at 580.
62.
628 F.2d at 456.
63.
628 F.2d at 457; 458 F. Supp. at 580.
64.
501 F. Supp. at 564.
65.
Id.
66.
Id at 597.
67.
501 F. Supp. at 570; 458 F. Supp. at 581.
68.
102 S. Ct. at 2398.
69.
Id.
70.
Id.
71.
Id.
72.
Id.
73.
Id at 2402.
74.
Id.
75.
Id at 2404.
76.
Id at 2403.
77.
Id.
78.
Id at 2404.
00447
Footnotes - 8
80.
Id.
81.
Id at 2406.
82.
Id.
83.
Id.
84.
Id at 2409.
85.
Id at 2411.
86.
Id.
r-
88.
Id.
Id-
90.
Id at 2409.
91.
458 F. Supp. at 573
92.
Id at 575.
93.
Id at 586.
94.
Id.
95.
Id at 587.
96.
Id at 588.
97.
Id at 589.
UD
00
t
•
Id.
00
•
Id.
CP)
CO
79.
Id at 593.
99.
628 F. 2d at 459.
100.
Id.
101.
Id.
102.
501 F. Supp. at 583
103.
Id.
104.
Id.
105.
628 F. 2d at 460.
106.
4 58 F. Supp. at 575
00448
Footnotes - 8
107.
628 F.2d at 461.
108.
501 F. Supp. at 578.
109.
102 S. Ct. at 2411.
110.
Id at 2411-2412.
111.
Id at 2412.
112.
Id.
113.
Id.
114.
Id at 2413.
115.
Id.
116.
Id at 2398.
117.
Id at 2399.
118.
Id.
119.
Id.
120.
Id.
121.
Id at 2399-2400.
122.
Id at 2400.
123.
Id at 2409.
124.
Id at 2400.
125.
Id at 2405, 2406-2407.
126.
Id at 2400.
127.
Id.
128.
Id at 2400-2401.
129.
Id at 2400-2401.
130.
96 S. Ct. 933 (1976) .
131.
102 S. Ct. at 2401.
132.
Id.
133.
Id.
134.
Id.
00449
Footnotes - 8
135.
Id.
136.
Id at 2402.
137.
Id at 2413-2414.
138.
Id at 2401.
139.
J. Rock, The Impact of Mexican Immigration on the Texas Public School System at 66-67 (May 1980) (Professional Report
Presented to the Faculty of the Graduate School of the University of Texas at Austin).
140.
Id at 66.
141.
Id at 68.
142.
458 F. Supp. at 574.
143.
Id.
144.
J. Rock, supra note 139, at 67.
14 5.
1980 Census: Counting Illegal Aliens: Hearings on S.2366
Before the Subcomm. on Energy, Nuclear proliferation and
Federal Services of the senate Comm. on Governmental Affairs,
96th Cong., 2d Sess. 67 (1980) (statement of Vincent P.
Barabba, Director, Bureau of the Census).
146.
Id.
147.
J. Rock, supra note 139, at 52.
148.
Id.
149.
Id at 65.
150.
Tex. Educ. Code Ann. §21.451 (Vernon Supp. 1982).
151.
Id.
152.
Id.
153.
Id.
154.
Id.
155.
Tex. Educ. Code Ann. §21.4 52 (Vernon Supp. 1982).
156.
Tex. Educ. Code Ann. §21.453 (c) (Vernon Supp. 1982).
157.
J. Rock, supra note 139, at 39.
158.
Id at 21.
00450
Footnotes - 8
159.
458 F. Supp. at 577.
160.
Tex. Educ. Code Ann. §21.460(a) (Vernon Supp. 1982).
161.
J. Rock, supra note 139, at 46.
162.
Budget Issues for Fiscal Year 1983: Hearings Before the House
Comm. on the Budget, 97th Cong., 2d Sess. 387 (1982) (Analysis
of the Effect of the FY82 and FY83 Reagan Budget Proposals on
Urban Schools). ..
163.
Id at 393.
164.
Id at 397.
165.
Departments of Labor, Health and Human Services, Education
and Reilated Agencies Appropriations for Fiscal Year 1982 :
Hearings Before a Subcomm. of the Senate Comm. on Appropriations, 97th Cong., 1st Sess. 130 (1982) (statement of Gilbert Chavez, Acting Director of the Office of Bilingual Education and Minority Language Affairs).
166.
Tex. Educ. Code Ann. §21.459(d) (Vernon Supp. 1982).
167.
Tex. Educ. Code Ann. §21.4 53(h) (Vernon Supp. 1982).
168.
506 F. Supp. 405 (E.D. Tex. 1981).
169.
Id.
170.
United States v. State of Texas, 680 F.2d 356 (5th Cir. 1982).
171.
Id at 374.
172.
102 S. Ct. at 2408.
173.
J. Rock, supra note 139, at 71.
174.
501 F. Supp. at 583.
175.
Tex. Atty' Gen. Op. No. H-586 (1975).
176.
501 F. Supp. at 555 n. 19.
177.
102 S. Ct. at 2408.
178.
J. Rock, supra note 139, at 66.
179.
501 F. Supp. at 559.
180.
1980 Census: Counting Illegal Aliens:, supra note 145, at
35 (statement of Senator Huddleston).
00451
Footnotes - 8
181.
102 S. Ct. at 2407.
182.
Id at 2401.
183.
J. Rock, supra note 139, at 10.
184.
Id.
185.
Departments of Labor, Health and Human Services, Education,
and Related Agencies Appropriations for 1983: Hearings
Before a Subcomm. of the House Comm. on Appropriations, 97th
Cong., 2d Sess. 936 (1982) (Projections of Non-English Language Background and Limited English Proficient Persons in
the United States to the Year 2000).
186.
Bilingual Education Act, 20 U.S.C. §3221 (1981).
18 7.
National Security and Economic Growth Through Foreign Language Improvement: Hearings on H.R. 3231 Before the Subcomm.
on Postsecondary Education of the House Comm. on Education
And Labor, 97th Cong., 1st Sess. 1 (1981) (opening statement of Paul Simon, Representative of Illinois, chairman of
the subcomm.).
188.
Id.
189.
Id.
190.
V. Mallinson, The Western European Idea in Education 360
71980) .
191.
J. Power, Migrant Workers in Western Europe and the United
States 99 Tl979). ~~
192.
~~
~~
M. Miller, P. Martin, Administering Foreign-Worker Programs
76 71982).
-
~~
193.
M. Piore, Birds of Passage 109 (1979).
194.
J. Power, supra note 191, at 104.
195.
102 S. Ct. at 2408-2409.
196.
Id at 2409.
00452
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