#068-R8-1287
DOCKET NO. 068-R8-1287
MUHAMMAD ISLAM, ET AL.
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V.
ARLINGTON INDEPENDENT
SCHOOL DISTRICT
BEFORE THE STATE
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COMMISSIONER OF EDUCATION
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioners are parents who appeal for themselves and
as next friend of their school age children from a decision
by Respondent Arlington Independent School District to
charge tuition for the children to attend Respondent school
district. A hearing on the merits was held on February 1,
1988, before Margaret O. Thompson, the Hearing Officer
appointed by the State Commissioner of Education to hear
this matter. Petitioners are represented by Mr. Laurance L.
Priddy, Attorney at Law, Fort Worth, Texas. Respondent is
represented by Mr. Chester G. Ball, Attorney at Law,
Arlington, Texas.
The Hearing Officer issued a Proposal for Decision on
March 31, 1988, recommending to the State Commissioner of
Education that Petitioners' appeal be granted. No
exceptions or replies to the Proposal for Decision were
filed.
Findings of Fact
After due consideration of the evidence and matters
officially noticed, in my capacity as State Commissioner of
Education, I make the following Findings of Fact:
1. Petitioners are foreign students enrolled in
graduate study degree programs at the University of Texas at
Arlington, Texas. (Pet. Exs. 1-9).
2. Petitioners have lived with their spouses and
children within the boundaries of Respondent school district
between one and five years. (Pet. Exs. 1-9; Tr. 74).
3. Petitioners are citizens of various foreign
countries and hold F-1 visas issued by the United States
Immigration and Naturalization Service. (Pet. Exs. 1-9).
4. Petitioners' children hold either F-1 or F-2 visas.
(Pet. Exs. 1-9).
5. The F-1 visa is categorized under federal
immigration law as a non-immigrant visa and an F-1 visa
holder is defined as:
an alien having a residence in a foreign country
which he has no intention of abandoning, who is a
bona fide student qualified to pursue a full
course of study and who seeks to enter the United
States temporarily and solely for the purpose of
pursuing such a course of study at an established
college, university, seminary, conservatory,
academic high school, elementary school, or other
academic institution or in a language training
program in the United States, particularly
designated by him and approved by the Attorney
General after consultation with the Secretary of
Education, which institution or place of study
shall have agreed to report to the Attorney
General the termination of attendance of each
nonimmigrant student, and if any such institution
of learning or place of study fails to make
reports promptly the approval shall be withdrawn,
and (ii) the alien spouse and minor children of
any such alien if accompanying or following to
join him; (emphasis added).
8 U.S.C.A. +1101(a)(15)(F).
6. Respondent district admits children tuition-free to
its schools only if Respondent determines that they are
residents of the district. (Tr. 62, 63).
7. Due to Petitioners' visa status, Respondent
determined that they were not residents of the district and
notified Petitioners in writing that, beginning September 1,
1987, Petitioners would be charged tuition. (Pet. for Rev.,
Par. I; Pet. Ex. 10, attached hereto and incorporated herein
for all purposes).
8. Due to legal actions taken in state and federal
courts and before the Commissioner of Education, collection
of tuition was voluntarily stayed by Respondent district,
and Petitioners' children are currently attending school
tuition-free. (Tr. 60).
9. Respondent intends to charge tuition to
Petitioners' children if permitted by law. (Tr. 60).
10. Petitioners have lived in Respondent district
between one and five years and intend to remain at least
until they obtain a Ph.D. degree. Some Petitioners hope to
remain beyond that time. (Pet. Exs. 1-9; Tr. 7, 31).
11. Parents other than Petitioners who seek to enroll
their children in Respondent's schools are entitled by
Respondent's Board policy to prove residency in the district
by providing indicia of residency to administrators in
Respondent district. (Pet. Ex. 11, pp. 18, 19; Pet. Ex. 12,
attached hereto and incorporated herein for all purposes).
12. Respondent's administrative assistant for student
services is charged by Respondent with the responsibility of
determining whether or not children are residents of the
district and entitled to be enrolled tuition-free. (Pet.
Ex. 11, p. 5).
Discussion
Respondent Arlington Independent School District
proposes to charge tuition to a group of children whose
parents (Petitioners in this case) live in the district but
are in the United States on F-1 student visas, which visa
classification requires the admittee not to have the
intention of abandoning a residence in his or her home
country.
The facts, in the main, are not in dispute.
Petitioners are graduate students at the University of Texas
at Arlington, suing on their own behalf and as next friend
of their school age children who live with them. The
children have been attending school tuition-free in
Respondent district between one and five years. Respondent
district notified Petitioners in September, 1987, that all
holders of F-1 visas would be required to pay non-resident
tuition in order for their children to continue in school
for the 1987-88 school year. The statute on which
Respondent's policy is based is as follows:
+21.031. Admission
(a) All children who are citizens of the United
States or legally admitted aliens and who are
over the age of five years and under the age
of 21 years on the first day of September of
any scholastic year shall be entitled to the
benefits of the Available School Fund for that
year.
(b) Every child in this state who is a citizen of
the United States or a legally admitted alien
and who is over the age of five years and not
over the age of 21 years on the first day of
September of the year in which admission is
sought shall be permitted to attend the public
free schools of the district in which he
resides or in which his parent, guardian, or
the person having lawful control of him
resides at the time he applies for admission.
(c) The board of trustees of any public free
school district of this state shall admit into
the public free schools of the district free
of tuition all persons who are either citizens
of the United States or legally admitted
aliens and who are over five and not over 21
years of age at the beginning of the
scholastic year if such person or his parent,
guardian or person having lawful control
resides within the school district.
Tex. Educ. Code Ann. +21.031 (Vernon, 1988). This statute's
limitation to legally admitted aliens, however, was ruled
unconstitutional by the United States Supreme Court in
Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 238, 72 L.Ed.2d 786,
(1982).
The school district policies concerning residency,
state in pertinent part as follows:
FDA: ADMISSIONS AND ATTENDANCE: ELIGIBILITY AND
ADMISSIONS REQUIREMENTS; GENERAL ELIGIBILITY
The Board shall admit into the public free schools
of the District free of tuition all persons who
are over five and not over twenty-one years of age
on September 1 of the scholastic year, if such
person or his parent, guardian, or person having
lawful control resides within the District. The
District may withdraw any student who ceases to be
a resident. Education Code 21.031(c); Plyler v.
Doe, 102 S.Ct. 2382 (1982); Daniels v. Morris, 746
F.2d 271 (5th Cir. 1984). . .
FDA (LOCAL): The Board may require a student, or
the student's parent(s) or guardian(s), to provide
evidence that the student is in compliance with
residency requirements
. . .
FDA(R) LOCAL:
ADMISSIONS AND ATTENDANCE:
ADMISSION REGULATIONS FOR ENROLLMENT OF
OF FOREIGN STUDENTS
Students requesting attendance in the Arlington
Independent School District who are nonimmigrant
are subject to the following requirements as
stated on Form I-20-AB:
TUITION: Same as non-resident or ineligible students paid in advance
MEANS OF SUPPORT:
responsibility
Must show proof of financial
RESIDENCE: Must live with a *family that is a
resident of Arlington (verification required)
LANGUAGE: Student must be proficient in English
(verification required)
TIME: Student must be in Arlington at the beginning of the school year
TRANSCRIPT: School District must have on file a
complete transcript of the students work to date
BIRTH CERTIFICATE: Proof of age
IMMUNIZATIONS: Proof of required immunizations
*Family:
Husband and wife whose primary language
in the home is English. Husband and/or wife whose
primary language in the home is English
*Residence: Family must live within the
boundaries of the Arlington Independent School
District.
In applying these policies, the school district's
position is that, because the parents are required under
federal immigration law to intend not to abandon their home
country residence, it is impossible as a matter of law for
Petitioners to be residents of the United States and of the
school district.
The administrator in charge of enforcing Respondent's
residency policy uses a check list of indicia of residency
to assist him in determining whether persons are residents.
(Pet. Ex. 12). Items such as driver's licenses, utility
bills, rental agreements, and bank statements are included
on the check list. All of these items could be supplied by
Petitioners. However, in the case of Petitioners, these
indicia are not taken into consideration by Respondent due
to their visa status.
Petitioners testified, and Respondent does not
challenge, that Petitioners and their families rent
apartments, purchase food and other necessities of life in
the district, and pay their pro rata share of property and
sales taxes through their purchases and payment of rent.
Additionally, Petitioners are living in the district with
their families for a substantial period of time, undertaking
a full course of Ph.D. graduate study lasting at least four
and up to seven or more years. They intend to remain at
least until they complete the course of study. Some of the
Petitioners testified that after finishing school, they
would like to adjust their visa status and remain in the
United States.
The concept of residence in Texas state law is
distinguished from that of domicile. The Texas Supreme
Court in Snyder v. Pitts, 241 S.W.2d 136 (Tex. 1951), set
forth the requirements of domicile and residence.
The elements of the legal concept of domicile are:
1.
An actual residence.
2. The intent to make it the permanent home.
Snyder at p. 139.
The court stated that "a residence is a lesser-included
element within the technical definition of domicile. . ."
and "there can be but one domicile and several residences
. . . " Further, the Court stated that intent to make a
permanent home "is not necessary to the establishment of a
second residence away from the domicile." Id. at 139.
The facts in Snyder concerned whether venue was proper
in a suit involving a defendant who lived in a second
location in order to conduct business over a period of about
two years. He returned to his primary residence where his
wife remained on weekends and holidays and other times when
he was not working. The elements the Court considered in
determining whether the defendant had acquired a second
residence within the meaning of the venue statute were as
follows:
1. A fixed place of abode within the possession
of the defendant.
2. Occupied or intended to be occupied
consistently over a period of time.
3. Which is permanent rather than temporary.
The court held that since the defendant occupied the second
residence with consistency and continuity, the trial court
could find he was not a visitor (temporary), but had
acquired a residence.
Although Snyder construes a venue statute, the
principles of domicile and residency set forth in that
opinion are applicable here.
The United States Supreme Court in Martinez v. Bynum,
461 U.S. 321, 103 S. Ct. 1838, (1983), discussing a
different sub-section of +21.031 of the Texas Education Code
defines residency as "physical presence and an intent to
remain." The Court also notes that "the 'intention to
remain' component of the traditional residency standard does
not imply an intention never to leave. Given the mobility
of people and families in this country, changing a place of
residence is commonplace. The standard accommodates that
possibility as long as there is a bona fide present
intention to remain." Martinez, 461 U.S. at 331, 103 S.Ct.
at 1844, n. 13.
Respondent's interpretation of the Education Code's
residency requirement is more akin to domicile than
residency in that it concludes that Petitioners can have
only one residence. Respondent decided that due to the
wording of the federal law for student visas, Petitioners'
one and only residence must be located in a foreign country.
Respondent did not consider any indicia of intent except
Petitioner's visas, nor did it permit Petitioners an
opportunity to rebut Respondent's categorization of them as
non-residents. By imputing to Petitioners an intent to
reside in their home country and not to acquire a United
States residence on the basis of a visa classification,
Respondent has denied Petitioners the opportunity to show
the attributes of residency in the school district by their
actions as well as expressed intent.
Respondent states that it applies its policy to all
persons similarly situated. However, in at least two
instances, the evidence demonstrates to the contrary. The
tuition notice sent out on September 1, 1987 was addressed
only to "Parents of Non-Resident F-2 Students." (Pet. Ex.
10, attached). Additionally, the superintendent of
Respondent school district testified at the hearing before
the Commissioner that the notice was not sent to holders of
B, H, I, J, or L visas, which are also non-immigrant visas.
The superintendent acknowledged that the district was aware
that some J-visa holders had children enrolled in the
district.
The J-visa classification is identical to the F-1 visa
in regard to the requirement that such non-immigrant aliens
have "no intention of abandoning" their residence in a
foreign country.
However, the superintendent testified that children of
J-visa holders were enrolled tuition-free because the
"[Texas Education] Agency. . . has told us to treat them as
a resident student." (Tr. 68). Because there are no
material differences regarding residency between J and F
visas, Respondent has not treated similarly situated persons
alike.
In addition, any other child, whether alien or citizen,
when presented for enrollment in Respondent school district
is required to present the same items on Respondent's check
list referred to above in order to establish residency under
Respondent's policy FDA (Local). Respondent offers no such
opportunity to parents holding F-1 visas, but instead
applies policy FDA(R) Local. The petitioners who testified
before the Commissioner of Education established that they
qualify as residents under the indicia normally employed by
the district, as well as by traditional common law tests of
residency. Such differing treatment by Respondent requires
examination under the constitutional requirements of due
process and equal protection.
Respondent's position is that all non-resident students
are treated alike - that is, required to pay tuition.
However, it is in the definition of residency by Respondent
that the dissimilar treatment occurs. The standard by which
residency is judged is different for F visa holders, as
discussed above. Because Respondent does not permit them to
"prove" their intent, they are treated differently from
other parents who come into the district from other places
and seek to enroll their children in school.
Classifying and treating Petitioners differently may
withstand scrutiny if the classification bears at least some
relationship to a legitimate public purpose. Plyler v. Doe,
457 U.S. 202, 102 S.Ct. 238 (1982).
Respondent admits that none of the sources of the
district's income are affected by whether or not Petitioners
are non-immigrant aliens in the district. Petitioners
contribute toward property tax revenues indirectly through
payment of rent. They pay sales and other excise taxes
through their purchases in the community. Respondent
receives state aid on the basis of average daily attendance
figures, which are not affected by whether enrollees are
resident or non-resident (tuition-paying) students. (Tr.
75). Federal funds are similarly unaffected by residency of
students. (Tr. 75).
Respondent argues that its treatment of Petitioners as
non-residents is justified by the substantial state interest
in assuring that services intended to be provided for its
residents are enjoyed only by residents, citing Martinez v.
Bynum, supra, which upheld the state's statutory residency
requirement for public school students living apart from
their parents or legal guardian in a facial challenge to the
statute. Martinez, however, addressed only the statute's
requirements and not its application. This aspect of the
statute is not at issue here, and the holding of Martinez
that +21.031 of the Texas Education Code "is a bona fide
residency requirement that satisfies constitutional
standards" is not in question.
The constitutional issue in this case concerning equal
protection of the laws is whether Respondent has improperly
interpreted the Texas residency requirement, resulting in
discrimination against Petitioners without the existence of
a state interest to justify such discrimination. The equal
protection standard requires that a classification, at a
minimum, be rationally based and free from invidious
discrimination. Dandridge v. Williams , 397 U.S. 471, 487,
90 S.Ct. 1153, 1162, (1970). Respondent has shown no
rational basis for its classification of Petitioners as
non-residents, nor has it demonstrated a legitimate state
interest for its differing application of policy. The
discriminatory treatment is thus unconstitutional.
Under a due process analysis, Respondent's presumption
that all F-1 and F-2 visa holders are non-residents may not
stand where the presumption is not necessarily true and
where Respondent has reasonable alternative means of making
the residency determination under Texas law. Vlandis v.
Kline, 412 U.S. 441, 93 S.Ct. 2230 (1973).
Respondent argues that the case of Vlandis, supra, does
not apply. Vlandis held unconstitutional a Connecticut
statute which permanently and irrebuttably classified
university students as non-residents if their legal address
was outside Connecticut any time during the year preceding
application for admission. Respondent states that Vlandis
does not apply because the Texas residency requirements do
not create an irrebuttable presumption of non-residency.
While the state law concerning residency does not on
its face create an irrebuttable presumption of
non-residency, Respondent's policy applying the statute
clearly does and is thus unconstitutional.
In the same way that Connecticut sought to classify as
"out-of-state students" those who were, in fact, bona fide
residents, Respondent seeks to preclude Petitioners from
being able to demonstrate bona fide residency. The Vlandis
court stated:
. . . since Connecticut purports to be concerned
with residency in allocating the rates for tuition
and fees in its university system, it is forbidden
by the Due Process Clause to deny an individual
the resident rates on the basis of a permanent and
irrebuttable presumption of nonresidence, when
that presumption is not necessarily or universally
true in fact, and when the State has reasonable
alternative means of making the crucial determination. Rather, standards of due process require
that the State allow such an individual the opportunity to present evidence showing that he is a
bona fide resident entitled to the in-state rates.
Since +126 precluded the appellees from ever rebutting the presumption that they were nonresidents of Connecticut, that statute operated to deprive them of a significant amount of their money
without due process of law.
Vlandis, 412 U.S. at 451, 93 S. Ct. at 2236.
The same analysis applies to Petitioners' situation;
each person's situation must be decided on its own facts, by
use of relevant criteria and not on a presumption based on
the visa classification. Vlandis, 412 U.S. at 455, 93 S.
Ct. at 2237.
Petitioners have carried their burden of proof and
their appeal should be GRANTED.
Conclusions of Law
After due consideration of the record, matters
officially noticed, and the foregoing Findings of Fact, in
my capacity as State Commissioner of Education, I make the
following Conclusions of Law:
1. Respondent's treatment of Petitioners as
non-residents is not in accordance with Texas law defining
residency.
2. Respondent's treatment of Petitioners as
non-residents due to their visa status creates a
constitutionally impermissible irrebuttable presumption of
non-residency.
3. Respondent's treatment of Petitioners as
non-residents is unconstitutional both under the due process
and equal protection clauses of the United State
Constitution.
4. Petitioners' appeal should be GRANTED and
Respondent should be ordered to consider Petitioners'
residency or non-residency in the district by the same
checklist/indicia of residency that Respondent applies to
other parents seeking to enroll their children in the
district.
O R D E R
After due consideration of the record, matters
officially noticed, and the foregoing Findings of Fact and
Conclusions of Law, in my capacity as State Commissioner of
Education, it is hereby
ORDERED that Petitioners' appeal be GRANTED and
Respondent consider Petitioners' residency or non-residency
in the district by the same checklist/indicia of residency
that Respondent applies to other parents seeking to enroll
their children in the district.
SIGNED AND ENTERED this _____ day of ________________,
19_____.
_____________________________
W. N. KIRBY
COMMISSIONER OF EDUCATION