NYQUIST v. MAUCLET

Print this transcript Transcript: 

Argument of Judith A. Gordon

Chief Justice Warren E. Burger: We will hear arguments next in 76-208, Nyquist V. Mauclet.

Mrs. Gordon, you may proceed when you are ready, if you would like to go over the lectern, you may do so readily, on the crank on the side.

Ms Judith A. Gordon: Mr. Chief Justice, and may it please the Court.

New York offers grants and subsidized loans to undergraduate and graduate students among its Higher Education Assistance Programs.

Only grants are directly in issue on this appeal, particularly region's college scholarships which are awarded competitively on the basis of performance on an examination and to Tuition Assistance Awards known as TAP which are available to any qualified student.

The question presented is whether New York may, consistently with the Equal Protection Clause offer these grants to state residents who are citizens, to aliens willing to become citizens and to certain alien refugees.

Necessarily excluding other aliens including aliens like appellees here in, who are permanent residents who had refused to become an American citizens.

The Mauclet case was instituted in the Western district of New York in February 1975.

The Rabinovitch action was instituted in the Eastern district of New York in August of 1974.

Both cases were determined by a Three Judge District Court in the Eastern District which ended in a judgment from which this appeal is taken.

Now appellee Mauclet is a French citizen and he has been a permanent resident alien in the United States since 1969.

He was a graduate student at the State University of New York at Buffalo at the time the judgment below was entered and he had been denied a Tuition Assistance Award as a graduate student, for the 1974-1975 academic year on the basis of the State Statute involved section 661 because in essence he refused to become an American citizen.

Appellee Rabinovitch is Canadian, he has been a permanent resident in New York and in the United States since 1964, he was an undergraduate student at Brooklyn College in the city of New York when the judgment was entered and he was not a Regions College scholarship for the same academic years involved in the Mauclet case because again he refused to apply for American citizenship.

Indeed as he states in his affidavit filed below, he has no intention of applying for American citizenship.

Unknown Speaker: Miss Gordon how much are we talking about in dollars, do you have any idea?

Ms Judith A. Gordon: Yes Your Honor, we do, we have the exact real figures as a matter of fact.

The direct Student Aid Program which is involved, and with specific reference to Regions College scholarships and to Tuition Assistance is $208 million in the State of New York for this present fiscal period, Your Honor.

Unknown Speaker: Well how many aliens are there who would eligible if the judgment of this court is upheld, how much are we talking in dollars in that point.

Ms Judith A. Gordon: Your Honor, frankly I can't respond on that, it's not is that we did not try to get the statistics but because we have a program which has foreclosed some aliens.

We do not know what opening that program would mean and indeed a statistics that would be more potentially relevant namely an age category of permanent resident aliens in New York were not available from the Immigration and Naturalization Service, the ones that were, were completely unrealistic.

Unknown Speaker: Of course not, the question I asked, is how much are we litigating about in this lawsuit?

Ms Judith A. Gordon: Oh, I am sorry, I mean what would be the difference in cost?

Unfortunately, Your Honor we cannot project that.

Unknown Speaker: So we may not be speaking about very much?

Ms Judith A. Gordon: That's correct Your Honor.

We may not be speaking about very much however this, given the quality of this scholarship program as a selection program it does have an extension in terms of other scholarships which are necessarily equally selection programs and then they have involving much greater public cost.

Now region scholarships share.

Unknown Speaker: But this is what I suppose, it isn't strictly a question of cost anyway, if these people are eligible that excludes others who might otherwise get?

Ms Judith A. Gordon: Exactly Your Honor?

Unknown Speaker: It is the question of who will get the piece of the pie?

Ms Judith A. Gordon: Of course Your Honor, it's the basis of any selection program that involves a public benefit is of course, ultimately a finite resource and of course the question then becomes, who has the better demand on that resource, the people who are included or all people who are now excluded.

Unknown Speaker: Now, the kind of grants you are talking about here are not ultimately repayable, I tell you, they are not loans.

Ms Judith A. Gordon: That is exactly right Your Honor, the Region Scholarships and the TAP awards are pure grants-in-aids, they are gifts.

Now, a separate issue is in fact raised in this case with respect to student loans which by definition are repayable.

Now, the statute, the state statute, in issue Section 661 covers student loans and appellee Rabinovitch has attempted to place the regulation of that statute, these are the student loans in issue in this case.

We contested his standing to do that below and the issue was determined against us, we have re-raised it on this appeal and it raises some very significant questions, however I think it's sufficient at this point to point out to you, that to the extent that loans are in fact subsidized by public money, they are to that extent gifts and can be fairly analogized to the grant program.

Unknown Speaker: Well, except, I would think for you would have an argument available to you in the loan situation that you don't have in the grant situation, that someone who insists on remaining a national, a national of Portugal is much more apt to be avoid service of process, that New York tries to compel repayment of a loan, 20 years from now, than someone who is a resident of the United States.

Ms Judith A. Gordon: That's exactly right Your Honor and it's our position on this appeal even putting aside the standing question, that remand would need to be had on the loan issue to raise indeed the issue just mentioned namely whether there was a basis to infer that there was this additional rationale that the alien unwilling to become a citizen would be more likely to leave the jurisdiction and not return than the alien who is willing to become a citizen, we do seek remand or we believe that unless 661 can be sustained under the Equal Protection Clause but to invalidate the statute would be quite because we would want to raise that additional issue including some other additional issues that pertain specifically to loans because they are partially federally subsidized.

The grants-in-aid, the TAP awards and the Regions College Scholarships are not in fact in any way federally subsidized, they are completely state?

Unknown Speaker: Miss Gordon, I am not sure, it would make at least for me, make any difference whether it was a $100,000 a year or $10 million a year but if the District Court is correct, is it unreasonable to speculate that this might bring an influx of graduate students from countries all over the world who would be pass to our door.

Ms Judith A. Gordon: Absolutely, that's exactly the problem or the question you pose, is exactly the problem that arises when any program that was formally closed is now open and we tend to calculate what would happen.

Now, obviously, if any alien knew that by his mere presence in the state, either as an immigrant or possibly as a non-immigrant, he could get aid to education, well, presumably he would want to come here.

Now if...

Unknown Speaker: Do you say, our government is paralytic to keep the aliens from coming?

Ms Judith A. Gordon: Do I think the government is paralytic to keep the aliens from coming?

You mean the State government or the Federal government.

Unknown Speaker: Federal government.

Ms Judith A. Gordon: Of course not Your Honor, of course not.

Unknown Speaker: So, I don't understand about this great inflow, if we could stop that easily.

Ms Judith A. Gordon: Well, I don't how whether they could stop me from whether or would it even be realistic to assume Your Honor that they could stop him from settling in New York state, once they were admitted to the United Sates, However I should point.

Unknown Speaker: What about United State citizens who are say, native Californians, who come to New York and stay there temporarily, are they eligible?

Ms Judith A. Gordon: There is a durational residence requirement for TAP awards and for college scholarships, Your Honor.

Unknown Speaker: Would the influx problem be any different for worrying about people coming from California than from France?

Ms Judith A. Gordon: Well, I think there would be different at least to this extent Your Honor, California the example, you took happens to have one of the most major public university systems in the United States and probably has a durational residence requirement incident to a system which could be met by an individual going from New York within a fairly brief period of time to California.

Now the same, the same principle, I don't think?

Unknown Speaker: Well let's assume there is a state, are there are any states that have less desirable programs than New York does?

Ms Judith A. Gordon: I believe so Your Honor.

Unknown Speaker: Let me take such a state for my hypothetical example.

Ms Judith A. Gordon: Pardon me Your Honor.

Unknown Speaker: Then take such a state, would your influx problem be any different for people who live in such a state as compared to people who live in a foreign country with a less desirable program.

I suppose it's probably a greater possibility they come from neighboring states, than they come to know about it, one thing or another.

We are just worrying about the influx problem.

Ms Judith A. Gordon: Yeah, well, I think it's obvious Your Honor, that New York, California and indeed there are many states in the union which offer enhanced benefit programs and possibly for that reason have been a population centers in the United States within, in other words, they have attracted people to the United States, certainly that was too historically in terms of the North being more attracted to some individuals than the South.

However, I think there are couple of points that need to be emphasized.

First of all, with respect to Canada for example, Canada states very plainly in its information offered through its consulate that it provides no grants-in-aid of any kind to undergraduate students.

Now, I do not have the law nor although I do have its booklet now.

Obviously, appellee Rabinovitch is getting in the United States, what the American student who went to his homeland could not get in Canada.

Now the situation, we attempted to check out the situation with France Your Honor, but the information was frankly not available to us.

Unknown Speaker: Miss Gordon, what would you regard as the primary purpose of the statute, I think, I have sensed a few that you have in remarks, but tell me what do you think are the primary purpose of the statute?

Ms Judith A. Gordon: Your Honor, the statute operates in terms of its purposes and in our view, in a very close nexus with the type of classification that's involved.

Now we have indicated, we have argued and we believe that the legislative history directly supports this, that the statute has a specific purpose in enhancing the educational level of the individuals in New York State who are willing to become identified with that state, namely those individuals who undertake the responsibilities of citizenship.

Unknown Speaker: Isn't that a federal concern rather than a state concern, number one and number two how do you defeat what Mr. Justice Stevens has been talking about, of having a great influx from other states, you can say New Jersey and Connecticut if you want rather than go away across the country, who might think they can get a better deal in New York, and we're willing to be there for few years.

Now, how do you defeat that, you admit them to your program, don't you?

Putting another way, isn't this the same argument that was made here in In re Griffiths and all the other alien cases.

Ms Judith A. Gordon: To take the last point first, no Your Honor.

First of all the influx problem, I think we should proceed it this way.

The statute, the classification involved does ask the alien to declare his intent to become a citizen or to apply for it, that is some evidence of his willingness to stay in New York.

The interstate resident who comes into New York to live and needs the durational residence requirement is already a citizen Your Honor.

He is fully eligible, by virtue of his birth and naturalization and his prior place of abode to participate.

Unknown Speaker: But precisely, that's my point you see.

Ms Judith A. Gordon: The point is that once the citizen satisfies the durational residence requirement, he is able to participate in the state community to the same extent, as the state resident who is already here, the alien cannot accept and he refuses that kind of responsibility, until the point in time when he becomes naturalize?

Unknown Speaker: Cannot participate in one sense, voting?

Ms Judith A. Gordon: He cannot vote, he cannot be an office holder, he cannot be a jeweler, he cannot be a policeman and indeed with respect to?

Unknown Speaker: Well some of those issues are under consideration, here right now.

I don't think you can assume them.

Ms Judith A. Gordon: I am sorry, Your Honor, Perkins v. Smith was affirmed by this Court and that's the state jury case, Your Honor.

There is certainly quite plain language in Dougall v. Sugarman, in other opinions of this Court, that within a office holding categories, the state may indeed use citizenship as a criteria for those types of positions, in the case, I believe, you mentioned that's before you now for disposition, here as Foley v. Connelie, which in the Southern district sustained its citizenship limitation for police officers.

Unknown Speaker: Would you follow them from admittance to the state universities.

Ms Judith A. Gordon: No, Your Honor, I am glad to raise because that's one of the points and issue.

Unknown Speaker: And the difference is?

Ms Judith A. Gordon: The difference, first of all, the financial difference is very substantial.

The direct student aid budget, a portion of which I gave you before, as I said, was $208 million.

One-and-a-quarter billion dollars is spent by the state of New York sponsoring its state public university and in providing contributions to City Universities.

Now, the whole purpose and some independent colleges.

The whole purpose of that program is to provide reduced tuition rates, now those reduced tuition rates are available to aliens with very minor exceptions, not here relevant and to citizens unlike terms.

Now, as you indicated Your Honor, there is a difference, why should New York then say with respect to this particular limited category of awards.

We are going to exclude some aliens, I think the answer Your Honor must be that this is a limited program, seeking a limited purpose namely.

Unknown Speaker: You said, all the money is just given away, do not require to you say.

I understand you to say that you could exclude him...

Ms Judith A. Gordon: From reduced tuition, Your Honor?

Unknown Speaker: From admission.

Ms Judith A. Gordon: From admission to New York state?

Unknown Speaker: New York State University.

They have got a million dollars and they pay in their own way, could you exclude them because they are aliens?

Ms Judith A. Gordon: Well, Your Honor I don't obviously the question is not clearly presented by this case, I would think certainly that an exclusion like that with parallel cases like Graham v. Richardson, with parallel cases like Sugarman v. Dougall, where the foreclosure on the access of the alien to a substantial program which is very meaningful to him, would indeed probably burden his access or burden his ability to enter and abide in the United States inconsistently with the Truax doctrine.

Unknown Speaker: Could you charge the alien with non resident tuition equal top what you charge non-resident students and who are shifted to United States?

Ms Judith A. Gordon: Your Honor, that issue was considered in a recent lower court case and held that all aliens could not be classified in terms of -- as non residents for reduced tuition purposes and I think that example again, that's a much more substantial barrier?

Unknown Speaker: Do you confine your loan and scholarship programs to residents in New York?

Ms Judith A. Gordon: Yes we do Your Honor.

Unknown Speaker: Hence that they are residents or citizens of New York?

Ms Judith A. Gordon: No, no Your Honor merely to be a resident of New York is not be a citizen.

Unknown Speaker: When do you get to be a citizen?

Ms Judith A. Gordon: Well, a citizen of New York.

Unknown Speaker: I mean, say I move to New York from New Jersey and I am going to reside there, you mean I am not a citizen?

Ms Judith A. Gordon: No, as an American, as a...

Unknown Speaker: Well that's what I am asking you, if I become a resident of New York, moving from another state, am I a citizen?

Ms Judith A. Gordon: Yes you are Your Honor, he become a citizen...

Unknown Speaker: So you confine your loan and scholarship programs to citizens?

Ms Judith A. Gordon: No Your Honor, we confine our loans and scholarship programs to citizens who are residents of the state for a particular period of time and we also provide the loans and scholarships?

Unknown Speaker: I am not -- you cannot, it cannot effect of your program, whether I am a citizen -- even though I am a citizen of United States.

I cannot participate in your loan program, unless I am a citizen in New York.

Ms Judith A. Gordon: That is correct, unless you?

Unknown Speaker: You said I have to be a resident?

Ms Judith A. Gordon: Yes Your Honor.

Unknown Speaker: Alright so we are not really treating your alien very much, any much differently he still has to be a citizen?

Ms Judith A. Gordon: Well, exactly except that the program is somewhat broader than that and so far as the alien can get the benefit of the statute, without in fact becoming a citizen, he can get it in effect if he has a certain refugee status and he can get it in a process of becoming a citizen, that's why it's somewhat?

Unknown Speaker: Or if there is some barrier to his becoming a citizenship and you can control...

Ms Judith A. Gordon: Exactly yes, if he cannot presently become a citizen, he is allowed to declare his intent, and that your point Your Honor distinguishes this case, I think very materially from prior cases that we have had, that the court has recently reviewed, in two ways, first of all the classifications in Graham and Sugarman, in de Otero were in fact classifications based on alienage the status of alienage.

Now, we have argued that this not such a classification and I believe it's incumbent upon us to show you that it is not such a classification either in logic or as a matter of reality.

It is not such a classification because the mere offer of the statement alienage under this statute, gets you nowhere.

The statute inquires alienage and something else, we have said that is the statement by the alien who is to the extent that he is willing to identify with what we believe are the interests served by the statute and he gets the money in reality, he gets the money for the entire duration of his alien status assuming he makes the commitment that is requested by the statute.

The statute is also very different from Graham and these other cases, in this respect, in Graham and the cases noted.

The alien was barred from access to as we noted very substantial programs by governmental bar.

The foreclosure was, as a specific result of the governmental action, there was nothing that the alien could do to get the benefit of that program.

In this situation, the statute places its decision making upon the alien, he may or may not wish to make the commitment that the statute offers to him, but if he in fact makes it, he gets the benefit of the program immediately.

Now, as I indicated, there are certain specific and we believe substantial interests involved in the program and they are..

Unknown Speaker: Not a large differences between this case and the others to which reference has been made, maybe you touched on, and I didn't understand it, is that this involves a system of state largess giving money away.

Ms Judith A. Gordon: Yes, exactly and I think we should ask what the consequence of that type of system is, as compared to the consequence of denying an alien, for example, welfare benefits.

Unknown Speaker: Or a job opportunity or turn them into something you achieve statutorily in time...

Ms Judith A. Gordon: Those can fairly be said I believe to burden his right to enter and abide.

However, if we give some group of individuals simply a gift, I do not think that we can fairly say that we are burdening or penalizing the individuals who do not receive the gift.

For example, I do not think that the in-state limitation, the in-state residence limitation, that is next to this type of program.

A residence limitation essentially approved by this Court in Vlandis v. Kline can realistically say that we are burdening New Jersey residents who do not get the benefit of this program.

This Court affirmed the opinion of Spatt v. New York which involves specifically, the use of Region College Scholarship.

Now in Spatt, the individual who brought the claim wanted to take his Regions College Scholarship and use in New Jersey, now we don't permit that the college scholarship has to be used in New York and he argued that it's -- our preclusion of this use of that scholarship in New Jersey penalized him and this court affirmed a decision which said that there was indeed no penalty involved.

Now in contrast of the Tuition Assistance Program, I indicated to you previously the total amount of money that was involved but whereas the Tuition Assistance Program, in our view potentially involves a foreclosure of access, the program here involved is as I say, limited in the terms of gross amount involved and very limited in terms of the amount of benefits that any individual receives, namely under...

Unknown Speaker: The state also quote, use the word largess but what about the amount of money that's put into the university, what is that?

That's a huge amount.

Ms Judith A. Gordon: It certainly is Your Honor.

Unknown Speaker: But you can't bar him from that, but your point is you cant bar him from that but you bar him from this extra, is there are a better way, I put?

Ms Judith A. Gordon: I think, I do not think that the issue of whether you could bar aliens from reduced Tuitions has been finally resolved.

As I indicated to you, there is one lower court opinion on point.

I do believe that the issue of barring an individual from an access to a publicly sponsored education when, for example, in California the state system is the pre-eminent system within that territory, places a much more substantial foreclosure on the alien than denying him a gift and here as I was about to indicate, the dimension of that gift, in terms of a region scholarship is now $250 annually.

The dimension of the Tuition Assistance Award is between $100 and $1500 depending on the income level of the individual, however, the first $200 of such awards are necessarily exempt, and there is an income sealing with respect to the eligibility of the candidate to receive the award.

So we are not talking about in the legislative history certainly does not purport to say, but this is a program which is intended to subsidize the complete cost of education.

The major subsidy comes at the end of the comes in the reduced tuition, thank you Your Honor.

Chief Justice Warren E. Burger: We will resume there at one o'clock, Miss. Gordon.

Mr. Davidson.

Argument of Michael Davidson

Mr. Michael Davidson: Mr. Chief Justice, may it please the Court.

Jean-Marie Mauclet is the husband of a citizen, he and his wife have a citizen child.

He is an immigrant to this country and he is entitled by the Congress of the Untied States to make this his permanent home.

If the judgment.

Unknown Speaker: Would it make any difference, if he didn't have an American wife or an American child?

Mr. Michael Davidson: Yes, I think it would make a difference in that, the fact that he has an American wife and an American child makes his residency in this country at the heart of The Immigration and Naturalization Act.

It's the central function of the Immigration and Naturalization Act.

As it now has been amended in 1965 and is recently at the last session of Congress, is to facilitate the unification of families, families of citizens and immigrants or families of immigrants and this is evident in a number of ways, the immediate relative of the United State citizen maybe admitted to this country without regard to numerical limitation.

Although this country has felt it important to place limits on the number of immigrants since 1921.

Unknown Speaker: Your argument goes to any legally present resident alien?

Mr. Michael Davidson: Yes, it goes to any, but I think it should be recognized that 74% of the preferences in the Immigration and Naturalization Act apply to members of families, families of citizens, families of resident aliens.

I think it's also significant because it is far more than the alien who is injured here, it is his citizen wife and his citizen child who are injured when he is deprived of an equal access to an education which would enable him to support that family unit.

Unknown Speaker: Does the record give any indication as to what percentage of permanent aliens actually are permanent in the sense that they never returned to their native homelands?

Mr. Michael Davidson: No, there is no such part of this record.

The only statistics in that we have our statistics in our brief which indicate that we are really talking about a very small percentage of people in the state university system in New York less than three tenth of 1%.

Unknown Speaker: Does the record show why your client does not wish to apply for American citizenship?

Mr. Michael Davidson: No it does not.

It simply contains his statement that he did not wish when asked by the state to apply for citizenship at that time.

The state neither answered or complained nor answered our affidavit, it simply accepted those statements contained in those documents treated this matter as having really no disputable issues of fact and proceeded to move as we did to summary judgment.

To affirm the judgment below would not mean that there would be a massive influx of students to this country, who might obtain the benefits of New York assistance.

New York has a residency requirement, non-immigrant students, a very large group of foreign students who come to study here annually are precluded from obtaining New York residency.

They are precluded by state regulation, in fact they are precluded by the Immigration And Naturalization Act.

That act requires that they have some residence somewhere else in the world and they would be subject deportation if they claim to the state of New York that they were residents of that state.

Now, the history of this act, the state act involved also indicates that we are really talking about a very small number of people and the state understands that to be true.

Unknown Speaker: Well again, what is the difference does that make in constitutional sense?

Mr. Michael Davidson: Well, I think it even makes the state action far more capricious than I would argue it, it is.

In 1961, when this program was established, there was no citizenship requirement and for a period of eight years, immigrant and citizen in New York state were entitled on equal terms to access the state tuition assistance.

In 1969, the state enacted the citizenship requirement which is now under review.

The only indication of legislative history, legislative policy involved is an estimate by the staff of the appropriate legislative committee, that there might be 50 students in the state who would be excluded by this provision and a sum of $10,000 say -- that figure incidentally disappeared from all further accountings and it could very well be the state anticipated no savings because if they are right, if it functions as an inducement for people to petition for citizenship, then the net result might be more citizens and no savings in funds.

I think that requires us to put aside any possible suggestion that the state of New York might be bankrupted by a judgment which requires them to treat immigrants and citizens alike.

Unknown Speaker: You mean more bankrupt?

Mr. Michael Davidson: More bankrupt.

Unknown Speaker: What would you say, hypothetically to a hypothetical statute of this time.

New York legislature after conducting hearings determines that they are lacking 3000-4000 positions who are needed or the projections are that within five years they will need 4000 more physicians.

So they develop a grand program to pay the entire tuition for New York residents for any Accredited Medical School in New York and aliens, the citizenship in the United States and residents in New York being required, what would you say to that?

Mr. Michael Davidson: I would say that would be invalid Statute as the matter of fact, the District Court in New York has invalidated the State's citizenship requirements for doctors following this Courts decision in regard to engineers and attorneys.

Unknown Speaker: That's a little different from -- I am talking about a program whose aim is to induce some people to become physicians in New York.

Mr. Michael Davidson: Yes, and if an immigrant is entitled equally with a citizen to become a doctor then our argument would be that he is entitled to the opportunity to become a doctor.

Unknown Speaker: Well then, let me add another clause to the Statute that to secure this grant, you must make a pledge to remain in the practice of medicine in the State of New York for not less than ten years and failing to do so, you would be required to pay one-tenth of the total cost of the grant of the scholarship for each year that you fail to stay in New York.

Mr. Michael Davidson: I believe that will be a permissible Statute, because it would require the same commitment by the citizens as it would require of immigrants.

In fact, the State of New York and other jurisdictions have such Statutes in which medical students pledge to work in designated areas, in return for assistance.

The program is more than a program of largesse.

It is the judgment of the State of New York that this assistance is necessary to achieve post secondary education, in these times.

It is not our task nor do we think it's a burden of the court to decide for itself whether this assistance is necessary, that is fact has been the determination of the State of New York.

I think that we are entitled to take the State at its word in that respect.

I think we are also entitled to take the State at its word that if it's assistance is unavailable, a large group of people will not receive the adequate and sufficient training to deal in a technical and difficult society.

This program involves more than Colleges and Universities, although people are certainly assisted in large numbers there.

It involves assistance to re-granting trade in technical schools, nursing programs, registered business schools.

The means of entries that people have following secondary education to an opportunity to earn a decent livelihood.

Unknown Speaker: One of the conditions generally upon these three programs are, three sources of money are available.

There is the Region Scholarship and that's a comparative merit.

Mr. Michael Davidson: That's right, for a limited number of people.

Unknown Speaker: For a limited number of people on the basis of an examination or an oral examination or an interview?

Mr. Michael Davidson: A Written examination.

Unknown Speaker: Then, there is a TAT, which is a grant of $250 each, is that available to any body who is admitted by State University?

Mr. Michael Davidson: Well that tuition assistance program.

Unknown Speaker: Depending upon the need of course.

Mr. Michael Davidson: It is applies to all schools, whether that be the State University or Private Schools.

Unknown Speaker: All schools of higher education.

Mr. Michael Davidson: All schools of post secondary education.

Unknown Speaker: Post High school.

Mr. Michael Davidson: The grants run from a $100 to $1500 all based on needs.

If there is no need, there is no grant for undergraduate students, $600 for graduate students.

But, the only requirements.

Unknown Speaker: If there is need there is a grant for anybody who has been admitted or whose is in a college or University.

Mr. Michael Davidson: Exactly, it is considered to be an entitlement program, admission to an approved institution in need are the sole requirements for the receipt of the grants.

Unknown Speaker: From the TAT?

Mr. Michael Davidson: That's right.

Unknown Speaker: How about -- the loan is similar to TAT, so far as conditions of?

Mr. Michael Davidson: Well the loan programs are different.

Mauclet has not complained of the denial of a loan, neither has he complained of the denial of the Region Scholarship, both of those programs are different.

His focus is entirely on Tuition Assistance Program.

There is an addition, a maximum amount based upon the amount of tuition, no person may received more than a tuition for the program in which he is eligible.

So, this is not a sum of money which he may use for any different and individual purpose.

May, I just return one moment to the importance which Immigration and Naturalization Act places on the unification of these families.

There is a requirement in the act that certain categories of the immigrants receive certificates from the Secretary of Labor, before they may be admitted which would establish that they would not disadvantage citizen workers.

Displace them at their work, force reduction in wages or working conditions.

The act specifically exempts all immediate relatives, all relatives is in fact, because it is so important to the Congress of the United States that these people have an opportunity to reside permanently in this country, to maintain the integrity of their family units which must be also the integrity of it as an economic unit.

Unknown Speaker: How far in the family -- what is the degree of relationship?

Mr. Michael Davidson: Well, in terms of intermediate relatives, it's spouses, children, and parents and then the system of preferences moves progressively beyond that ultimately to brothers and sisters.

Unknown Speaker: Grand children.

Mr. Michael Davidson: I do not believe so, Your Honor.

If the Congress has to make that judgment that it is so significant as a matter of National policy, no matter what the effect on present residents of the United States may be, we think that it is a conflict to that congressional scheme, for the State of New York to impose its own judgment on the matter and to say that these immigrant families are less worthy of its assistance.

Also, the State makes the argument, well, there are other ways in which person may finance the education.

Well, let's choose citizens as well.

These are integrated programs.

The Federal Government has its programs, the State of New York has its programs, they are worked together by rule and regulation to provide a composite.

The State of New York says to a student, to an immigrant student that he may not receive this assistance, he does -- the State places in, in extreme jeopardy that person's opportunity for an education.

Let me conclude this section by indicating that the objectives of the States of New York which it proclaims in this suit that of encouraging people to become citizens.

It is an objectives which is properly the objective of the national government and this is another aspect of the State's scheme which conflicts with the general national regulation of immigration.

Mauclet has not excluded the possibility of the becoming a citizen.

He was simply not ready to do so, when the State in essence commanded him to do as the cost of his education.

He may become a citizen later on.

The Naturalization Act places no maximum time limit on a person, they petition to citizenship.

It only places in a minimum period of time.

Unknown Speaker: Could the State of New York, constitutionally in your view, have this provision that we were discussing before that he would pledge to remain a resident of New York for at least five years after he completed the graduate work?

Mr. Michael Davidson: I think he could, it if it also require that pledge of its other residents.

Unknown Speaker: What's the different between that course and then the kind that is exerted on him now, except that -- say it isn't applied across the Board, is there any other?

Mr. Michael Davidson: The essence of this proceedings, this action is a equality.

The equality as required by Immigration and Naturalization Act between the citizen and immigrant or a equality as required by the Equal Protection Clause.

If the State of New York treats its immigrants and citizens alike then we would have no objection to that, thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Greenberg.

Argument of Gary J. Greenberg

Mr. Gary J. Greenberg: Mr. Chief Justice, and may it please the Court.

I would like to begin by focusing on Mr. Justice Stewart's reference to New York dispensing its largess to certain students that institutions to post secondary education.

We think it can hardly be classified as a gift, when what the New York State Legislature is doing, is taking the tax dollars which aliens of course, contribute equally with citizens and determining to dispense them in a particular program.

Now, we do not ask this court and we did not ask the District Court to substitute its judgment, for the judgment of the New York State Legislature.

Let me read to you, that judgment is articulated in 1961 when the program was really a put in to high gear and the Tuition Assistance Awards first came into being.

The New York State Legislature said, 'Higher education is no longer a luxury, it is the necessity for strength, fulfillment and survival.'

Now, the New York State Legislature has determined that this type of program is vital, it is essential to the well being of those people who reside in the State.

Unknown Speaker: Where are you reading?

Mr. Gary J. Greenberg: That comes from the laws of the 1961, Chapter 389, Section 1(a).

Unknown Speaker: It is written in the Appendix or it is in your brief?

Mr. Gary J. Greenberg: I believe actually that is quoted in full in brief of the State and as a further indication of the statutory purpose and this is something that we have quoted in our brief, the Page 21, in 1969, when the program was somewhat revised again, the Governor Rockefeller in his memorandum indicated, this is the Memorandum of Approval of the Bill, that the new revisions would do much to further New York State's goal that no young man or woman with the capacity and desired to seek a college education should be prevented from doing so, for lack of financial resources.

No reference to citizen, simply recognition?

Unknown Speaker: The same Legislature that excluded the aliens.

Mr. Gary J. Greenberg: That's the same Legislature that?

Unknown Speaker: You have details about all?

Mr. Gary J. Greenberg: Well I don't really, we don't really know why the Legislature or excluded the aliens.

We have no Legislative history and aliens have been excluded in one fashion or another but no in a consistent manner, since, approximately 1917, yet the New York State Legislature has never told us why they opted to exclude aliens, to the extent the Legislative history gives any guide, it is one; administrative convenience and two; the saving of $10,000.

The jurist prudence of this Court makes it clear that those purposes clearly can not satisfy New York's burden, when it invokes this types of invidious classification.

Unknown Speaker: Could the New York Legislature give the resident aliens of this category, the right to vote in New York elections?

Could they do it under their constitution?

Mr. Gary J. Greenberg: Under the present constitution, they could do not do it.

In fact, at one point, I think until 1825, New York in fact allowed, resident aliens to vote, as I think virtually every State did at that point in our history.

I think, it's clear that this court has determined that New York can exclude resident aliens from voting, it can exclude them from holding elective office, it can exclude them from high policy making office and the issue before this Court, maybe in the next case would be whether that includes the State police officer.

Unknown Speaker: Are there any statistics in the record that would indicate whether the parents of the aliens who apply for this sort of grant are themselves residents of New York or residents of United States or are on the contrary residents of some other country?

Mr. Gary J. Greenberg: There are no such statistics.

The facts in this case indicate that Mr. Rabinovitch, his entire family is resident in New York and has been since 1964.

There are no statistics as to in general.

Unknown Speaker: Percentages.

Mr. Gary J. Greenberg: No, we do not have that and I do not know if such statistics are maintained anywhere frankly.

The State argues and perhaps there was some suggestion that this issue troubled the court, and I refer to specifically to Justice White's question, that we really do not have the discrimination against aliens here, that the Statutory distinction is something different.

The State argues, we are not discriminating between citizens and alien, that what this Statute does, is it discriminates within the class of aliens.

We think that reasoning as the District court put it, simply defines logic.

Indeed, in preparing for this argument, I had occasion to look at your decision last term in Mathews v. Lucas that involved the social security, dependency allowance to legitimate children with certain presumptions as to dependency for legitimates and certain presumptions within the category of illegitimates and apparently the Solicitor General argued, this was not a discrimination between the legitimate and the illegitimates, and in a Footnote 11, this Court says, that's nonsense just because you have distinctions within the class of illegitimates, you cannot argue logically that therefore this is not a distinction between the legitimate and illegitimate children.

We have here a Statute which on its face says, 'Citizens and those aliens who are willing to apply for citizenship will receive a certain benefit'.

Unknown Speaker: Didn't Mathews v. Diaz, last year though, contained language contrary to that, which you just suggest that it is permissible to distinguish within classes of aliens when the Federal Government does it?

Mr. Gary J. Greenberg: Yes, when the Federal government does it, that kind of distinction is permissible and the fourth part of the Mathew's opinion makes the very clear distinction that while it is the normal every day constitutional function of the Federal government to distinguish within the class of aliens and between citizens and aliens, entirely different considerations are involved when a State makes that kind of discrimination.

Unknown Speaker: But then it does not make any sense to say that these are really not discriminations or that they really are discriminations.

What you are really saying is that one level of government has the right to make them and the other doesn't, not that when one makes the thing that the other does, there are discriminations in that and in the other case they are not?

Mr. Gary J. Greenberg: Oh, No, absolutely they are clearly classifications of discriminations and the what Mathews holds is the Federal government has the power and reading Hampton together with Mathews, at least the President and the Congress have the power to make such discriminations.

What Mathews, I think quite clearly holds in the Fourth part of the opinion, is that the State governments do not have the similar power, unless and I have heard very little today about the unless part, unless the discrimination satisfies some legitimate and substantial State interests.

We look to see what the State interest is, in this particular statutory classification.

Frankly, the argument put forth by the Stat, we think is nothing but a convenient but false post-talk rationalization.

The State tells us that they are seeking to encourage in essence, voter registration and office holdings.

Now, how does the Statue which simply provides tuition assistance, region scholarship or student loans encourage voter registration or office holding?

Indeed, when confronted with this particular statutory purpose, the District court said not only can the State satisfy a substantial interest here, there isn't even a rational relationship between this asserted purpose and the Statute under consideration.

We search a link to seek a method by which this Statue will some how further these goals and indeed it is interesting to know as the brief for Mauclet points out in detail.

New York has a variety, a whole host of these, habitual reflexive discriminations against the aliens and they are in court on many of these cases right now.

In every one of these cases, the same rationalization is used.

We are told that requiring citizenship for the licensing of physicians promotes the New York political community.

The State argued, believe it or not that the same political community rationale justified their requirement that physical therapist be citizens of United States.

It is a ubiquitous argument trodded out on every occasion by the New York Attorney General presumably seeking to find support in the Sugarman caveat as what would be a substantial State interest.

In this particular case, we don't see the how the Statute even approaches anything which we could be consider to be a substantial interest.

We don't see how the Statute is narrowly and precisely drawn to promote the interest.

Indeed, we think it's clear and we think Legislative Memorandum Number 8 focusing on the $10,000 saving.

We think it's clear that what New York was doing was out of habit, focusing on a traditionally discriminated class and seeking to save a few dollars of their expense and doing it in a situation where the New York Legislature has already determined the significance and the importance of this program to the individual.

Now, the fact that total foreclosure is not the consequence of this program, should make we think, no difference.

Unknown Speaker: That is you mean, the fact that some aliens are eligible?

Mr. Gary J. Greenberg: The fact that some aliens are eligible, the fact that aliens can go to the universities if they can fund the particular cost themselves without any student assistance, what the state argues...

Unknown Speaker: Well, there is student assistance, there generally is, institutions of higher learning today, students don't pay the full cost.

Even it they pay the full fees, that's not the full cost.

Mr. Gary J. Greenberg: Oh! Absolutely.

Unknown Speaker: It's generally about 50-60% of it, and if the most.

Mr. Gary J. Greenberg: That's right, but in case for example, Mr. Rabinovitch, he now, has $925 annual tuition cost.

If he were a citizen and in his case, he would have to do have more than the clear intention, he would have to actually because he is eligible, he would via the Region Scholarship which he won on a competitive examination and via tuition assistance, that full amount covered.

In his economic circumstances, this imposes an enormous burden upon him and his family, because he gets no assistance, none whatsoever.

Now, I should like to make two additional points before closing.

With reference to the loan program, the state made some reference to a requirement or a request for remand, I frankly don't understand what they are talking about -- the State had a full opportunity to try this case below, the State moved for summary judgment, the State didn't seek to introduce an additional evidence.

The considerations on the loan program are quite frankly exactly the same.

Unknown Speaker: Did you apply to ask for a loan?

Mr. Gary J. Greenberg: My client indicated that he might, for purposes of graduate school, require a loan.

He has never actually applied for a loan.

Unknown Speaker: How does he have standing to raise the loan question?

Mr. Gary J. Greenberg: We think because we have a single Statutory prescription, that is to say 661 (3) covers all three programs, because he has been injured in connection with two of the programs, because the State has admitted and admitted in the argument below and it's reflected in the opinion that if he applies for a loan, he will automatically be denied assistance.

Unknown Speaker: The standing is done based on how the qualifier has numbered the Sections of the Statutes?

Mr. Gary J. Greenberg: Well, I don't think it's based on simply the numbering but we do have a single Statutory program here and it would make very little sense to require Rabinovitch to go back, file his application, have it denied and come right back up on issues that would be virtually identical.

So, we see that there is no -- the remand in this case can serve no purpose, and indeed the State has never asked for it, and never sought to introduce any evidence or deal with the loan program in anyway differently until this moment.

Finally, we would point to the supremacy.

Unknown Speaker: Except, I thought the State had always taken position that your client does not have standing to raise.

Mr. Gary J. Greenberg: Yes, the standing point, they have raised from the beginning.

Unknown Speaker: That's what, I thought.

Mr. Gary J. Greenberg: Finally, with the regard to the Supremacy argument, I think it is very important to recognize that the United States government has allowed the appellees in this case, to enter and reside in the United State and they have done so, without requiring any declaration of intention to become a citizen at any time.

Second of all, there is a Statutory provision, 42 U. S.C 1981, which this Court has relied upon in Takahashi and Graham, which indicates that resident aliens have a right to enter and abide within all of the United States.

And in equality, legal privilege and right, and that when New York enacts its program, it is clearly interfering with the general plan and program articulated by the Federal government in the Immigration and Nationality Act.

Indeed -- I am sorry, I see my time is up.

Chief Justice Warren E. Burger: You may finish your sentence.

Mr. Gary J. Greenberg: Indeed, the enactment of the Parole Refugee provision is simply New York's recognition, that by keeping out of the program, people whom the Federal government has allowed into the United States, they are burdening the residence of these people and they are imposing upon them burdens not contemplated when the Federal government allowed them entry and residence in this country.

Thank You.

Chief Justice Warren E. Burger: Thank you Mr. Greenberg, do you have any further Miss Gordon?

Rebuttal of Judith A. Gordon

Ms Judith A. Gordon: Yes Your Honor, I have a few minutes.

The future progress of the State and Nation and the general welfare of the people depend upon the individual development of the maximum number of citizen leaders to provide a broad range of leadership.

It is in the vital interest of the people of the State to develop fully this reservoir of talent and future leadership.

That is a quotation from the same Legislative history that Mr. Greenberg quoted a few moments ago.

It appears in part of pages 12 and 13 of our brief, and it appears in the main volume of the McKinney in the pertinence of education law Sections, where it is a set forth in full.

So much for Post Hoc Rationalisation and indeed however, if the State were to infer any purpose from the face of a given Statute, absent any prior Legislative history, there would be absolutely nothing wrong with that inference under a strict scrutiny standard or under a reasonable relation standard.

Now, the citizenship and national affinity requirements with respect to real programs in issue have a 57 year history in the State of New York.

They were started in 1920, when the regions with respect to region scholarships.

They were expanded gradually throughout the years until they re-substantially -- their present form in 1962 and indeed as you can you see the programs themselves were expanded.

A loans coming shortly after Region Scholarships in 1957 and Scholar Incentive Awards coming shortly after that in 1961.

Now, appellees refer you, both appellees refer you to a figure $10,000 in 50 students.

They come to that figure by starting their legislative research in 1961 with the birth of the Scholar Incentives Program, putting aside the 40 years of customary history that attached to the Region Scholarship Program.

Now, appellees' say and there is a difficulty here but it is easily resolved at the birth of the Scholar Incentive Program that bill was in the same package of bills, that occasionally revisions to the Region Scholarship Program.

One of the revisions of the Region Scholarship Program was a reference to the Board of the Region to establish an appropriate rule regarding citizenship and affinity for Region Scholarship.

Accordingly, the Scholar Incentive Program, as I indicated, enacted at exactly the same time, didn't have a rule but the Legislative History that I just read you, was enacted with respect to that program.

Appellants have submitted it was the purpose of the Legislature at that point to have the regions make a rule for both programs.

Appellee Mauclet comes in and he says, no, impossible, the Board of Regions didn't have the power, it only had the power to make rules with respect to Region Scholarships not with respect to Scholar Incentive.

The answer to that question is quite simple, the power is found in Section 603 of the Education Law, as it appears in the main volume of the McKinney which was in fact aided to include border regions power over scholarship incentives, in 1961 when that program was created.

Now, the $10,000, as it turned out, over the period of time when scholar incentives were first enforced and this reference to the Board of Regions was enforced, the Board of Regions, in fact made a rule for Region Scholarships, it did not in fact make a rule for scholar incentives.

As a result, in 1969 the Legislature in essence adopted the Board of Regions rules for scholarships and codified them in the Statutes for both program.

Now, in that re-enactment, in effect of this rule, there are two legislative documents that the appellees' refer to, first is report A) which started at the beginning apparently the beginning of 1969 Legislative session, it's says in effect, we want to put the Citizenship requirement back and there is an indication in that bill that the savings will be $10,000.

That results to an indication in that bill that other items would have certain savings and there is an indication in every New York State Bill about the what fiscal ramifications of the given piece of Legislation are.

Notably, the very next report and indeed the one before, the Legislature apparently, Active Report 9, deletes the reference to $10,000 in 50 students, why does it do that?

I think because it was obviously gross error.

The question of where this $10,000 figure came from is never explained and the question of the where 50 students came from is never explained, and indeed there is as appellees' themselves indicate in this immediately following report, the reference was itself deleted.

Accordingly, I don't think that we can infer anything from that, what we can infer is that this particular -- that Section 661 in its present form is a matter of customary history in the State of New York over a very substantial period of time.

Now, I would just like to take a few moments with respect to point raised by Justice Rehnquist.

It is true that Section 661(3) now regulates three programs.

It is equally true that these three programs are separate and they are found in different portions of the Statute and they have different types of criteria incited to them.

The one appellant's position with respect to Rabinovitch is standing or is not a merely formality that he didn't obtain a final adjudication or final administrative determination of his rights.

Although, I certainly think that would be sufficient in itself, the point is, he never alleged a present need for the loan and there is absolutely no evidence in the record that he would have a deficiency between his anticipated expenses and his income would warrant a loan.

He says in his brief in response here, that, well, he wouldn't ask for an interest free loan which is one of the subsidies provided by the program.

Of course, the additional subsidy provided by the program.

Unknown Speaker: Does the application for the loan have a blank that says whether he is a citizen or not?

Ms Judith A. Gordon: Yes it does your honor.

Unknown Speaker: Well, what could be the sense of him filing?

Ms Judith A. Gordon: Well, first of all, he didn't file and we don't, first of all they talk about.

Unknown Speaker: What could be the sense?

Ms Judith A. Gordon: In reality, Your Honor, the loan application usually goes first to the bank and the lender under this program, is not the State of New York or the New York State Higher Education Services Corporation but a bank and it goes to a bank for the obvious purpose, that all loan applications go to a bank to see if the individual who wants to borrow the money, needs the money.

Now, grant it, there is a provision about citizenship but we don't know how this application would have been disposed, and we certainly don't know whether he needs the money within any definition of the program.

Unknown Speaker: I assume that if the New York official paid money to a non-resident alien who said he didn't ever intend to be an alien, would be proper?

Ms Judith A. Gordon: You mean, if he paid it out of violation of the Statute?

Unknown Speaker: Could he do that?

Ms Judith A. Gordon: Obviously, not Your Honor.

Unknown Speaker: Well why should he have to go through that?

When there is no way he could get it.

Ms Judith A. Gordon: Your Honor, the same New York official who in fact as I just pointed out, does not pay out the money would equally in violation of law or certainly be exercising extraordinarily poor judgment, if he paid out the money to somebody who didn't need it.

I mean, indeed that's the whole point, Your Honor.

First of all, the claim is premature and it's effect is speculative.

I would just like to close, it appears I have to close.

Thank you, Your Honor.

Unknown Speaker: Can I ask you before you close, what's your understanding on the power of New York to impose a residency requirement for the disbursement of these loans?

Ms Judith A. Gordon: I think that New York has unquestioned power under the (Inaudible).

Unknown Speaker: What's your understanding of the State's power to impose one year residence requirement?

Ms Judith A. Gordon: I think it has that power Your Honor.

Unknown Speaker: New York apparently thinks that is not sufficient for its purposes.

Ms Judith A. Gordon: Your Honor, the Statute asks exactly the same commitment from citizens and aliens.

A commitment to the United States is possessed by any United States citizens by virtue of his status.

Unknown Speaker: So, your answer is...

Unknown Speaker: No, New York, does not think that's adequately.

Ms Judith A. Gordon: The answer is no, New York does not think that's adequate that the citizen and the alien both are treated identically under the Statute and that the result is a benign classification.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you.

The case is submitted.