BOE v. WRIGHT, 648 F.2d 432 (5th Cir. 1981)

A. BOE, BY HIS NEXT FRIEND, B. BOE ET AL., PLAINTIFFS-APPELLEES, v. LINUS WRIGHT ET AL., DEFENDANTS-APPELLANTS.

No. 80-2017. Summary Calendar.United States Court of Appeals, Fifth Circuit. Unit A.
June 5, 1981.

Ben Niedecken, Dallas Independent School Dist., Dallas, Tex., for defendants-appellants.

Lawrence L. Mealer, Dallas Legal Services Foundation, Inc., Alfredo Campos, Jr., Dallas, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before CHARLES CLARK, REAVLEY and WILLIAMS, Circuit Judges.

PER CURIAM:

[1] Plaintiffs-appellees are undocumented alien children who brought this class action against Dallas Independent School District (DISD) seeking to require the school district to admit them into the Dallas public schools and to provide them and all similarly undocumented alien children with a free public education. This is an appeal from an order of the district court granting plaintiffs a preliminary injunction. The court’s order enjoins the school district from refusing to admit illegal alien children into the Dallas public schools pursuant to § 21.031 of the Texas Education Code[1] and the administrative

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regulations promulgated by DISD pursuant thereto.[2]

[2] The district court initially denied plaintiffs’ motion for preliminary injunction.[3] However, after Justice Powell’s decision as Circuit Justice in Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas, 448 U.S. 1327, 101 S.Ct. 12, 65 L.Ed.2d 1151 (1980) (Powell, J., in chambers),[4] the district court reversed its position and granted the preliminary injunction against DISD, finding that such relief would not result in serious or irreparable injury to the school district.[5]

[3] Because the dispositive issue involved in this case has recently been decided by this court, see Doe v. Plyler, 628 F.2d 448 (5th Cir. 1980), probable jurisdiction noted,
___ U.S. ___, 101 S.Ct. 2044, 68 L.Ed. 347 (1981), the district court’s order granting a preliminary injunction is affirmed.[6]

[4] AFFIRMED.

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[5] REAVLEY, Circuit Judge, with whom CHARLES CLARK, Circuit Judge, joins, specially concurring:

[6] As a member of a panel of this court I am without power to “disregard the precedent set by a prior panel, even though [I conceive] error in the precedent.” Davis v. Estelle, 529 F.2d 437, 441 (5th Cir. 1976). Absent some intervening contrary authority from the Supreme Court or this court sitting en banc,
I am bound to follow the decision in Doe v. Plyler, 628 F.2d 448
(5th Cir. 1980), probable jurisdiction noted, ___ U.S. ___, 101 S.Ct. 2044, 68 L.Ed. 347 (1981). I can, however, write to express my disagreement with the panel’s decision in Doe v. Plyler.

[7] In Doe v. Plyler, the panel first determined that Tex.Educ. Code Ann. § 21.031 did not impermissibly conflict or interfere with federal law in the sphere of immigration regulation and, therefore, was not preempted by the supremacy clause of the constitution. 628 F.2d at 453. In considering the equal protection challenge to § 21.031, the court initially concluded that aliens illegally within the territorial boundaries of the United States are entitled to equal protection of the laws as guaranteed by the Fourteenth Amendment.[1] The court then discussed the appropriate standard of judicial scrutiny to be applied in reviewing the Texas statute to determine whether it denied illegal alien children within that State equal protection of the laws. Although noting that Texas’ statutory classification excluding illegal aliens from free public education may be deserving of strict scrutiny,[2] the panel concluded that it was not necessary to address that difficult question because it found § 21.031 to be unconstitutional under the rational basis test. 628 F.2d at 458. It is with this holding — that no rational basis exists to support the classification made by § 21.031 — that I disagree.

[8] “Under traditional equal protection analysis, a legislative classification must be sustained, if the classification itself is rationally related to a legitimate governmental interest.”United States Department of Agriculture v. Moreno, 413 U.S. 528, 533, 93 S.Ct. 2821, 2825, 37 L.Ed.2d 782 (1973). Under the rational basis test, a reviewing court presumes the constitutionality of the statutory discrimination. City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976) (per curiam).

[9] In Doe v. Plyler, the State of Texas urged that decreasing its educational costs was a rational justification for excluding illegal aliens from the state-provided bounty of free public education. Moreover, the State also asserted that by denying illegal alien children free public education the incentive for aliens to illegally enter this country would be lessened.

[10] In response to the State’s first asserted justification, the panel concluded that “cost, in and of itself, could [not] justify the exclusion

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of any group of people from any government program that requires funding.” 628 F.2d at 459 (citing United States Department of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973)) (emphasis in original). The panel’s statement is too broad. Cost of a government funded program is a legitimate governmental interest. A challenged classification will be sustained if it rationally furthers such a legitimate governmental interest.[3]

[11] Moreno, upon which the panel relies, stands only for the proposition that a bare legislative “desire to harm a politically unpopular group cannot constitute a legitimate governmental interest” and that a purpose to discriminate against an unpopular group, e. g., “hippies” or illegal aliens, “cannot, in and of itself and without reference to [some independent] considerations in the public interest,” justify the challenged classification.[4] 413 U.S. at 534-35,

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93 S.Ct. at 2825-26 (emphasis and brackets in original).

[12] I find that a legitimate governmental interest exists to which the denial of free public education to illegal aliens is rationally related. It is the State’s interest in providing universal education, consistent with the historical policies underlying the establishment of publicly funded education in this country, while at the same time preserving its limited resources from unwarranted dilution. The major governmental policy interest behind the free public education movement in this country during the 19th century was that an enlightened electorate is necessary to maintain our democratic form of government and to preserve the liberty of the people. See, e. g., T. Jefferson, Notes on Virginia, in 4 Works of Thomas Jefferson (Federal Edition 1904), pp. 60-65 (Jefferson’s explanation of his “Bill For The More General Diffusion of Knowledge”), reprinted in S. Goldstein, Law and Public Education, pp. 4-7 (Bobbs-Merrill Co. 1974).

[13] This policy was recognized by the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873
(1954). In Brown, the Court wrote:

“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”

[14] 347 U.S. at 493, 74 S.Ct. at 691 (emphasis added). Moreover, i Ambach v. Norwick, 441 U.S. 68, 75, 99 S.Ct. 1589, 1594, 60 L.Ed.2d 49 (1979), the Court noted that “[t]he importance of public schools in the preparation of individuals fo participation as citizens, and in the preservation of the values on which our society rests, long has been recognized by our decisions . . . .” (Emphasis added). In Ambach, the court also acknowledged that social scientists have confirmed the general perception of the public schools “as inculcating fundamental values necessary to the maintenance of a democratic political system . . . .” Id. at 77, 99 S.Ct. at 1595.

[15] I conceive that the Texas Legislature, on agreeing that education is “the very foundation of good citizenship,”[5]
could reasonably have concluded that it should not dilute its limited resources by providing free public education to illegal alien children, who can never — absent some form of amnesty — become citizens, exercise the franchise, or serve in the armed forces of the United States.

[16] In Nyquist v. Mauclet, 432 U.S. 1, 11, 97 S.Ct. 2120, 2126, 53 L.Ed.2d 63 (1977), the Supreme Court addressed the governmental interest in the enhancement of the educational level of the electorate. There the state, as a condition for granting college tuition assistance, required students to be citizens or to have made application for citizenship or, if not qualified for citizenship, to submit a statement of intent to apply for citizenship when eligible. The Court held the statute unconstitutional under

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the equal protection clause because the state’s claimed interest in educating the electorate did not provide a justification under the compelling state interest test;[6] “although such education is a laudable objective, it hardly would be frustrated by including resident aliens [i.e. those lawfully residing in this country], as well as citizens, in the State’s assistance programs.” Nyquist, 432 U.S. at 11, 97 S.Ct. at 2126 (emphasis added). The implication of the Court’s statement is that including illegal aliens in a state’s educational assistance programs might indeed frustrate the state’s objective of the enhancement of the educational level of the electorate.

[17] Texas’ interest in educating the electorate is clearly frustrated in this case. The record reveals that DISD has a total enrollment of 120,000 students and that the district is presently facing an enrollment of 8,700 Spanish-speaking students requiring bilingual education. DISD is already short of bilingual teachers and faces a problem of recruiting qualified bilingual teachers. With the projected enrollment of 2,000 to 5,000 illegal alien children from Mexico during the school year, the quality of education for Spanish-speaking citizens and legal resident aliens, who require bilingual education, will certainly decline.[7] I conclude that § 21.031 is rationally related to Texas’ interest in educating the electorate and in avoiding a diminution of the quality of such education. Moreover, unlike the statute in Nyquist, the Texas statute does not discriminate against aliens legally admitted into this country. It provides free public education for citizens — who, upon attaining the age of 18, are entitled to vote — and for aliens who possess documents establishing lawful admittance into this country — who if classified as resident aliens, are eligible to become naturalized citizens after a period of time.

[18] With respect to the second justification advanced by the State of Texas in Doe v. Plyler, the panel held that the classification made by § 21.031 was not rationally related to the asserted goal of lessening the incentive for aliens to illegally enter this country. 628 F.2d at 461. The panel observed that although the asserted goal was entirely consistent with federal immigration policy, “the number of illegal aliens who bring their children to the United States is a small percentage of the total number of aliens illegally residing in the United States.” Id.
at 460-61. Therefore, the panel concluded, the challenged classification “is aimed at only a small part of the total illegal immigration problem.” Id. at 461. Although recognizing that “a state is not required to `choose between attacking every aspect of a problem or not attacking a problem at all,'” id.
(citing Dandridge v. Williams, 397 U.S. 471, 486, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970); Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955)), the panel reasoned that because the State failed to enact the measure most likely to lessen the incentive for aliens to illegally enter this country,[8] serious doubt was cast on the motive of the Texas Legislature in enacting § 21.031. “This doubt, coupled with the district court’s finding that Section 21.031 is an ineffectual means of discouraging illegal immigration, [led the panel] to conclude that the statute is not rationally related to its asserted goal.” 628 F.2d at 461.

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[19] I disagree with the panel in Doe v. Plyler because it incorrectly applied the traditional equal protection analysis. Under the rational basis test, the judiciary is not concerned with the verification of a state legislature’s motive for enacting a statute. The test is not whether the challenged classification is rationally related to the legislature’ motive in enacting the statute; it is whether the classification is rationally related to a legitimate governmental interest. See United States Department of Agriculture v. Moreno, 413 U.S. at 534-35, 93 S.Ct. at 2825-26
(where the Court, after noting that the challenged classification was clearly irrelevant to the stated purposes of the statute and that the legislative history indicated Congress’ intent to exclude “hippies” from the food stamp program, nonetheless applied the traditional equal protection analysis to the legitimate governmental interest in minimizing fraud in the program and held the classification to be wholly without any rational basis).

[20] Under the rational basis test, the equal protection clause of the Fourteenth Amendment is violated “only if the [challenged] classification rests on grounds wholly irrelevant to the achievement of the State’s objective.” McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1104, 6 L.Ed.2d 393 (1961). Moreover, “[a] statutory classification will not be set aside i any state of facts reasonably may be conceived to justify it.”Id. at 426, 81 S.Ct. at 1105, quoted in Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at 1161 (emphasis added).

[21] I would hold that the Texas Legislature could reasonably find that the exclusion of illegal aliens from free public education would be a step towards lessening the incentive for aliens to illegally enter and remain in this country and in the State of Texas.[9] A state legislature is free to implement its objectives in social and economic areas[10] “step by step . . ., adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.” City of New Orleans v. Dukes, 427 U.S. at 303, 96 S.Ct. at 2517; see also Dandridge v. Williams, 397 U.S. at 485, 90 S.Ct. at 1161. Although the district court in Doe
may have found the challenged classification to be an ineffectual means of eliminating the perceived evil, 628 F.2d at 461, such a finding itself, or coupled with a doubt about the legislature’s motive for enacting the measure, does not lead to the conclusion that the statute is not rationally related to a legitimate governmental objective. The efficacy of legislation is not the province of the judiciary. A statute fails the rational basis test only if it rests on grounds wholly irrelevant to the achievement of a legitimate government objective. McGowan v. Maryland, 366 U.S. at 425, 81 S.Ct. at 1104. I cannot say that this ground on which § 21.031 rests — that is, that denying illegal aliens free public education will discourage aliens from illegally entering and residing in this country — is irrelevant to the legitimate governmental objective of lessening the incentive for illegal entry and residence in the United States.[11]

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[22] The panel in Doe v. Plyler lays great significance on the failure of Texas to enact a statute prohibiting employers from hiring illegal aliens. Such a statute, the panel concludes, would be the measure most likely to achieve the goal of lessening the incentives for aliens to illegally enter the country. I suggest that the Texas Legislature could have concluded that it was more important to eliminate the incentive to illegal immigration in the form of the state and locally funded bounty of free public education,[12] as opposed to the incentive of employment, which is for the most part in the private sector, since the policy of affording free public education to illegal aliens would be contrary to and in conflict with national immigration policy as established by Congress. Can it be denied that free education is an incentive to move across the Rio Grande? Cf. Graham v. Richardson, 403 U.S. 365, 376-80, 91 S.Ct. 1848, 1854-56, 29 L.Ed.2d 534 (1971) (holding that a state’s alien residency requirements for welfare benefits conflicts with federal immigration law because it discourages entry into or continued residency in the state by aliens lawfully within this country, the practical result of which is that aliens lawfully admitted under federal law are denied the privileges conferred by such admission);[13] Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Truax v. Raich, 239 U.S. 33, 42, 36 S.Ct. 7, 11, 60 L.Ed. 131 (1915) (holding that the assertion by a state of authority to deny aliens, lawfully admitted to the United States, the opportunity of earning a livelihood conflicts with federal immigration law because it “would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work”).[14] Texas could have deemed it necessary to avoid an incentive to illegal immigration that it would otherwise create by its own laws and with the public’s money. This being so, it is not for this court to “sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations

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made in areas that neither affect fundamental rights nor proceed along suspect lines. . . .” City of New Orleans v. Dukes, 427 U.S. at 303, 96 S.Ct. at 2517 (citations omitted).

[23] In conclusion, I cannot agree with the panel in Doe v. Plyler
that there is no rational basis to support Tex.Educ. Code Ann. §21.031.

[24] The important questions for me, raised by this case and Doe,
are whether the equal protection clause applies to aliens illegally within this country and, if so, whether they are entitled to suspect status or whether education is a fundamental right.

[25] I may agree with the Doe panel that aliens illegally within the territorial boundaries of the United States are entitled to equal protection of the laws under the Fourteenth Amendment See 628 F.2d at 454-56. However, I am concerned by the Supreme Court’s consistent and careful language indicating that the term “person” as used in the equal protection clause of the Fourteenth Amendment “encompasses lawfully admitted resident aliens as well as citizens . . . .” Graham v. Richardson, 403 U.S. at 371, 91 S.Ct. at 1851 (emphasis added); see In re Griffiths, 413 U.S. at 719-20, 93 S.Ct. at 2853-54 (“a lawfully admitted resident alien is a `person’ within the meaning of the Fourteenth Amendment’s directive that a State must not `deny to any person within its jurisdiction the equal protection of the laws'”) Takahashi v. Fish and Game Commission, 334 U.S. 410, 420, 68 S.Ct. 1138, 1143, 92 L.Ed. 1478 (1948) (“[t]he Fourteenth Amendment . . . embod[ies] a general policy that all persons lawfully in this country shall abide `in any state’ on an equality of legal privileges with all citizens under nondiscriminatory laws”); Truax v. Raich, 239 U.S. at 39, 36 S.Ct. at 9 (“[b]eing lawfully an inhabitant of Arizona, the complainant [an alien admitted to the United States under federal law] is entitled under the 14th Amendment to the equal protection of its laws”). Cf. Foley v. Connelie, 435 U.S. 291, 294, 98 S.Ct. 1067, 1069, 55 L.Ed.2d 287 (1978) (noting that “aliens lawfully residing in this society have many rights which are accorded to noncitizens by few other countries”). See also Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas, 448 U.S. 1327, 1329, 101 S.Ct. 12, 14-15, 65 L.Ed.2d 1151 (1980) (Powell, J., in chambers). Therefore, it is conceivable that the Supreme Court might conclude for policy reasons[15] that an alien, who is not lawfully residing in this country, does not constitute a “person within [a state’s] jurisdiction”[16] and, therefore, is not entitled to equal protection of the laws. Cf. Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) (holding an alien in this country on parole, while her admissibility was being determined, was not “within the United States” for purposes of a statute that allowed the Attorney General to withhold deportation of an alien “within the United States” because in his opinion the alien would be subject to persecution in the destination country).

[26] Whatever the eventual holding may be on whether the equal protection clause of the Fourteenth Amendment encompasses aliens unlawfully within this country; because I cannot conclude that education is a fundamental right,[17] because I do not deem to be

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“suspect” a classification that discriminates against aliens illegally within this country,[18] and because I find a rational basis to support the statute, I would uphold the constitutionality of Tex.Educ. Code Ann. § 21.031.