public free schools in any district to the same categories of children whose parents or guardians resided within the district, violated the equal protection clause of the Fourteenth Amendment and was unconstitutional.

The Court permanently enjoined the defendants (originally the superintendent and members of the Board of Trustees of the Tyler Independent School District (T.I.S.D.) and subsequently including the State of Texas, the Governor of Texas, and the Texas Commissioner of Education) from applying section 21.031 of the Texas Education Code, as well as the policy in implementation thereof, adopted by the T.I.S.D. Board of Trustees on July 21, 1977, which permitted enrollment of illegal alien children only upon payment of tuition. Pursuant to that policy, and based upon an educational expense analysis conducted by the school district's administrative office, an amount of $1,000.00 had been set as tuition for each child residing within the district, who was neither a United States citizen, nor a lawfully admitted alien, nor an alien whose request for lawful admission was being processed by the United States Immigration and Naturalization Service. The figure had been arrived at by dividing the school district's annual operating budget, $18.5 million, by the approximate number of enrolled students, 16,000, and represented the approximate proportional cost of educating a single child in the district.

The plaintiffs were all minor Mexican children, illegal aliens residing within the school district, who had attended the Tyler Independent School District schools during 1976-1977, tuition free, except for two who had attended the Head Start Program in the summer of 1977. The four families represented in the action had lived in Tyler for periods of three to thirteen years; each family included at least one U.S. citizen child, not of school age, born in the United States, but the families were otherwise all illegal aliens. At least one parent in three of the families was employed, and Federal income and social security taxes were being withheld from that parent's paycheck. (There was no State income tax in Texas.) One family owned real property; the other three were renters. None of the parents could afford the tuition fee of $1,000 or any other significant sum.

The plaintiffs had accompanied their complaint with a motion for preliminary injunction, which the Court granted on September 12, 1977. The State of Texas, having been permitted to intervene, participated as a defendant at the final hearing in December 1977; and the United States Department of Justice participated as an amicus curiae. Early in 1978 the plaintiffs moved to add the Governor of Texas and the Commissioner of Education of Texas as parties, and afterwards the State of Texas moved for reconsideration and to present additional evidence on the grounds, inter alia: (1) that counsel for the

State and the prospective witnesses had assumed that the case would affect only the Tyler Independent School District (which had "at most sixty [illegal alien children] out of an enrollment of 16,000 in 1977"), and not other school districts throughout the State, and (2) that the evidence offered at the trial had been "consciously limited by this understanding." The United States, which had previously submitted to the court and to the parties copies of the Preliminary Report of the Domestic Council Committee on Illegal Aliens, December 1976 (see this Chapter, ante), also filed a post-trial brief, in which it took the position that the Texas statute and the Tyler Independent School District's policy were not invalid under the Federal preemption doctrine, but violated the Fourteenth Amendment guarantee of equal protection of the laws. The constitutionality of the Texas statute had, in the meantime, been upheld by the Supreme Court of Texas, through denial of writs in Hernandez v. Houston Independent School District, 558 S.W. 2d 121 (1977), writ ref'd "no reversible error," May 17, 1978, motion for rehearing overruled June 21, 1978.

Holding that "neither the language nor the logic of the Fourteenth Amendment supports the proposition that the guarantee of equal protection of the laws does not extend to illegal aliens," District Judge William Wayne Justice also noted that entitlement to equal protection "in no way means, however, that illegal aliens are entitled to precisely the same treatment afforded U.S. citizens and lawfully resident aliens." Taking as his point of departure the standard pronounced by Mr. Justice Jackson in Railway Express Agency v. New York, 336 U.S. 106, 112 (1949) (concurring opinion), that "cities, States and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation," Judge Justice concluded that no rational basis existed for excluding illegal alien children from the public free schools. For educational purposes their needs (bilingual education, free breakfast, free lunch, and free clothing) were no different from those of a large proportion of the legally resident alien children (and the special needs were largely financed by Federal funds, in any case). The State's adoption of a federal criterion, illegal presence in the United States under the immigration laws, did not in and of itself constitute a rational justification for effectively depriving the children, already disadvantaged by poverty and language barriers, of any educational opportunity at all. Excerpts from Judge Justice's memorandum opinion follow:

Neither the language nor the logic of the Fourteenth Amendment supports the proposition that the guarantee of equal protection of the laws does not extend to illegal aliens. The United States Supreme

1

Court has indicated that illegal aliens are entitled to the protection of the due process clause. See, e.g., Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (dictum); Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896). The structure of section one of the Fourteenth Amendment does not indicate a different result for the guarantee of equal protection of the laws:

"No State shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Emphasis added.) While due process is afforded to "any person," equal protection extends only to "any person within its jurisdiction." Yet this apparent narrowing of the equal protection guarantee, by virtue of its very specificity, should not be read to exclude a class of persons that fits within the narrowed language. People who have entered the United States, by whatever means, are "within its jurisdiction" in that they are within the territory of the United States and subject to its laws. Joining Judge Friendly in Bolanos v. Kiley, 509 F.2d 1023, 1025 (2d Cir. 1975), this court "can readily agree that the due process and equal protection clauses of the Fourteenth Amendment apply to aliens within the United States [citations omitted] and even to aliens whose presence here is illegal." Accord, Holley v. Lavine, 529 F.2d 1294 (2d Cir.), cert. denied, 426 U.S. 954, 96 S.Ct. 3181, 49 L.Ed.2d 1193 (1976); United States v. Barbera, 514 F.2d 294, 296 n. 3 (2d Cir. 1975). Cf. Williams v. Williams, 328 F.Supp. 1380 (D.V.I.1971) (illegal aliens entitled to access to divorce courts); Martinez v. Fox Valley Bus Lines, 17 F.Supp. 576 (N.D.Ill.1936) (illegal alien allowed to sue to recover for personal injuries in negligence action); Commercial Standard Fire and Marine Co. v. Galindo, 484 S.W.2d 635 (Tex.Civ.App.-El Paso 1972, writ ref'd n. r. e.) (illegal alien not barred from workmen's compensation benefits). But see Burrafato v. United States Department of State, 523 F.2d 554 (2d Cir. 1975), cert. denied, 424 U.S. 910, 96 S.Ct. 1105, 47 L.Ed.2d 313 (1976).

The conclusion that illegal aliens are entitled to equal protection of the laws in no way means, however, that illegal aliens are entitled to precisely the same treatment afforded U.S. citizens and lawfully resident aliens. As Mr. Justice Jackson described the "salutary doctrine" of the equal protection clause, "cities, States and Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation." Railway Express Agency v. New York, 336 U.S. 106, 112, 69 S.Ct. 463, 466, 93 L.Ed. 533 (1949) (concurring opinion)

The fairness of the legislative classification contained in the challenged statute and policy must be measured within the framework of the well established two-tiered test. If the challenged law threatens a fundamental right or creates a suspect classification, the court must subject the State's interests served by law to strict scrutiny. In

such a case, the law will be upheld only if it is precisely tailored to further a compelling government interest. Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Absent a fundamental right or suspect classification, a law need only be supported by a rational basis. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 40, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

As implemented by the Tyler I.S.D., section 21.031 has created a distinct class of poor, undocumented children who are absolutely deprived of any education whatsoever. While the level of scrutiny appropriate for reviewing this kind of total deprivation of education has never been explicitly identified by the Supreme Court, several elements in this case invite a close examination of section 21.031. The first of these elements lies in the benefit denied, education. In San Antonio Independent School District v. Rodiguez the Court said that "[e]ducation, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected." 411 U.S. at 35, 93 S.Ct. at 1297. Yet the holding of Rodriguez was explicitly and repeatedly limited to the sort of relative deprivation of education challenged in the case itself. Under the Texas school financing scheme, children in property-poor school districts attended schools with access to fewer funds than those in property-rich school districts; but no children were prevented from attending school altogether...

An additional indication that heightened scrutiny may be appropriate arises from the contention that the challenged policy of charging tuition to undocumented children constitutes discrimination on the basis of wealth.15 Relatively wealthy undocumented children are able to attend school despite the Tyler I.S.D. policy-two such children are actually doing so—while poor undocumented children are excluded ...

Furthermore, although it is not inaccurate to characterize section 21.031 as "State regulation in the social and economic field," Dandridge v. Williams, 397 U.S. at 484, 90 S.Ct. at 1161, as defendants urge, this case does not follow the pattern of those in which such a characterization has triggered relaxed rather than heightened review. In Dandridge, as in Rodriguez, the deprivation was relative rather than absolute, i.e., some families received less aid in proportion to the number of children than others, but no discrete class of needy families was completely cut off from benefits. See also Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972).

A more exacting scrutiny of the Texas law also appears warranted when consideration is given to the decisions of the Supreme Court refusing to penalize and stigmatize children who are not in a position to prevent the wrongful acts of their parents.

While the undocumented minor plaintiffs are of course legally culpable and subject to deportation, they can hardly be held morally responsible for their presence here. Many of them were hardly more than infants when they arrived in the United States, nor

did they participate in their parents' decision to emigrate; consequently they deserve no additional burdens or penalties.

It does not appear. . . that any of the parties in DeCanas [DeCanas v. Bica, 424 U.S. 351 (1976)] had standing to raise the equal protection question. Employers of illegal aliens were defendants in a suit brought by displaced legal alien workers to enforce the California law; it was the defendant employers who raised the Federal preemption argument as a defense. Nevertheless, even if De Canas had been upheld squarely against an equal protection challenge, this court feels that the case is substantially distinguishable

The cornerstone of Federal immigration law remains the Immigration and Nationality Act of 1952, also known as the McCarranWalter Act, 8 U.S.C. 1101 et seq. Insofar as the instant case is concerned, the most salient features of the Act are: limitation of immigration into the United States; exclusion of those aliens who are not granted visas; and assignment of criminality to foreigners who enter without permission. The McCarran-Walter Act identifies two main principles according to which the admission of prospective immigrants must be defined. First, the Act evidences a strong concern for family reunification, making a relationship with a United States citizen or permanent resident the primary means of obaining a visa. Second, the Act contains a labor certification program "designed to protect the United States labor market from the influx of both skilled and unskilled foreign labor." Note, Alien Labor Certification Proceedings: The Personal Preference Doctrine and the Burden of Persuasion, 43 Geo.Wash.L.Rev. 914 (1975).

Section 212(a) (14) of the McCarran-Walter Act originally placed the burden of certification on the Secretary of Labor. Aliens were not ineligible for admission until the Secretary so certified. In 1965, partly in response to requests from organized labor, see Note, 43 Geo. Wash.L.Rev. at 915 n. 9, Congress amended the provision to strengthen its protection of the domestic labor force. As amended, the labor certification program excludes an alien worker 19 unless the Secretary of Labor makes certain determinations

The California legislature's prohibition of the knowing employment of illegal aliens manifestly represents a local effort to deal with a particularly aggravated version of the dangers Congress has recognized and made one of its central concerns. Thus, although the DeCanas Court did not base its decision on this point, the State scheme, perhaps unwittingly, serves the basic purposes of the Immigration and Nationality Act, for [Cal. Lab. Code] section 2805 (a) promotes not only the specific Federal design of protecting the domestic labor market, but also the general function of exclusion.

By contrast, the Texas statute at issue in the instant case is neither intended to, nor does it in fact, implement any express or apparent federal objective. The State does not attempt to justify section 21.031 as an effort to exclude or to discourage those aliens whom Congress