Plyler v. Doe - Oral Argument

ORAL ARGUMENT OF RICHARD L. ARNETT, ESQ., ON BEHALF OF THE APPELLANTS

Chief Justice Burger: We will hear arguments first this morning in Number 80-1538, Plyer, Superintendent of School District, against Doe and the consolidated cases.

Counsel, you may proceed whenever you are ready.

Mr. Arnett: Mr. Chief Justice, and may it please the Court, the questions before this Court today may and indeed based on the last year's experience will dramatically affect the future of the state of Texas and some of its school districts.

Texas sits geographically right on top of the hub of Mexico's population, in contrast to California, where the bordering state of Mexico has a population... had a population of one million in 1970.

The four Mexican states bordering Texas had populations of six million.

It is approximately one-third as far to Brownsville from Mexico City as it is to San Diego.

When one considers the problem of familial migration into this country, it seems reasonably clear that Texas is indeed the state which will be most dramatically impacted by this type of illegal migration.

When one considers the fact that Mexico's population is doubling approximately every 20 years, and that approximately four and a half million children of school age are out of school in Mexico right now because of lack of adequate facilities, it doesn't take a great deal of imagination to understand the Texas legislature's concerns for the future.

With the federal government doing very little to control the problem other than to deny its largess to illegal aliens, and I use that term because it does describe the people that Texas seeks to exclude from its schools, persons who are illegally present in the country, but as I say, with the federal government doing very little, nothing at all realistically, to help the impacted school districts in providing a basic program of education to their residents, be them legal or illegal presently, the Texas legislature enacted Section 21031 of the Texas Education Code in 1975 to curtail the drain of the state's educational resources and those of its districts, which drain only promised to increase in the future.

Now, Section 21031 basically codifies two distinct provisions.

One denies state funding on the basis of the attendance of pupils who are not lawfully admitted into the state.

The other exempts from the requirement for tuition-free admission that is imposed upon the districts those children who are not lawfully admitted into the United States.

Those two provisions conceivably could differ in result in this case.

The latter, not requiring school districts to admit them, in essence leaves it at the discretion of local districts to review their circumstances.

Now, we have raised the issue, and it has been invited certainly by the decisions of this Court, the consistent language of the decisions of this Court, concerning whether illegal aliens are in fact protected by the equal protection clause of the Fourteenth Amendment.

Our concerns rest more with the manner of the application of the equal protection clause than they do the application alone.

Texas has no interest in legislating in an irrational manner.

However, Texas is very interested in having their legitimate interests recognized by this Court, and in the event that they are, we see no problems with that.

It largely... the application of the equal protection clause largely presents a policy issue.

We don't really have too much to add to what we have put in our brief on that point, and with the limited time we have here today, we would like to address the manner of any application, as well as the underlying state interests at issue here.

Unidentified Justice: Let me ask one question, counsel.

If the equal protection clause is not protective of undocumented aliens, could the state of Texas impose harsher criminal penalties upon them?

Mr. Arnett: Well, you may have Eighth Amendment problems, it would seem to me, Your Honor.

Certainly were the equal protection clause not applicable, and I might add that we have restricted our argument in that respect to governmental services; it seems to us that that is the one area which may do the most... may cause the most judicial interference with political decisions in this area.

Unidentified Justice: There can't be any question, can there, that an alien, documented or undocumented, brought before a criminal court is entitled to the same due process as any other person in the United States?

Mr. Arnett: No, Your Honor, it is not, and it may well be that the due process clause in that respect may be read to answer the problem that Justice Blackmun posed as well as that which is also posed by the Fifth Circuit.

But in addressing the application of the equal protection clause, the first thing I think we need to look at is the nature of the class at issue.

One of the intimations and accusations in this case that I would like to dispel immediately is that this statute embodies any racial animus.

This whole case originated in 1975, when a district on the border, Eagle Pass, which has a 95-percent Mexican American population, decided to enact a policy precluding illegal aliens from admission into their schools.

The Attorney General of Texas was asked for his opinion as to the legality of that.

The response was that under our statutes existing at that time, all residents of any classification, of any status had a right to go to school.

Within a month, a Brownsville legislature... legislator, and Brownsville has a 90-percent Mexican American student population, offered an amendment to a pending bill which resulted in Section 21031.

Brownsville and the Valley districts are the only districts to have filed amicus briefs in this case.

They have representatives here today.

They have also suffered a 700-percent increase in the last year in illegal alien enrollment.

The purpose of this statute is to protect the Mexican American population's education in Texas.

It is not to discriminate against them.

When one looks at the class, and indeed, when one looks at the entire area of equal protection as applied to illegal aliens, the first thing we see is the DeCanas case.

Now, admittedly, equal protection was not directly before the Court, but I think several commentators have noticed that the language of the court in talking about the state's interest as well as the rights of illegal aliens in that context are very easily transferrable into equal protection terms, and indeed, when one compares DeCanas with Truax versus Raich, it reaches entirely the opposite result.

Truax didn't even involve the total denial of employment.

DeCanas seemingly allows that.

At the same time that Truax was decided, the doctrine at that time was that the governments, the state governments could protect their resources from legal aliens.

That has been obviously substantially altered by the decisions of this Court, but the dichotomy between employment in Truax and the government resources in Truax would seem to make our case much stronger here than that of California in DeCanas.

In determining what class we are looking at, it is interesting to note that the trial court in Texas versus Certain Named and Unnamed Undocumented Alien Children defined the class to be all children who are or will be excluded from Texas schools.

He thus included in that class numerous, in fact, who knows how many... we feel that it may be a disastrous number in the future... children that lived... were currently and are currently living in Mexico.

The effect of the lower court's decision is that all they have to do is cross the border, and this is not a border like going through customs, when you come into the United States on an airplane.

This is a border that is very easily walked across, and all you have to do is walk in and you will have your rights.

Unidentified Justice: Mr. Arnett--

--You mean walk across the Rio Grande?

Mr. Arnett: Yes, Your Honor.

There are areas where the river is shallow enough that indeed people walk across the river.

Unidentified Justice: There are small places.

Mr. Arnett: Well, sir, if you stood there and watched, I understand that you can see quite a flow.

Indeed, the border is largely unregulated.

Unidentified Justice: But the river is there.

The river is the boundary.

Mr. Arnett: Yes, sir.

Unidentified Justice: And you have to cross the river.

Mr. Arnett: No question.

Unidentified Justice: General Arnett, if you are dealing with commuters, people who reside outside the district and come across just to go to school, couldn't you handle that problem by just saying you must be a resident of the district in order to attend the school?

Mr. Arnett: We do have that qualification.

Unidentified Justice: Well, then, you don't need it to deal with the problem of people who live in Mexico and come back and forth, do you?

Mr. Arnett: That's right.

The problem would be people moving into the United States.

Unidentified Justice: So you are really not trying to persuade us that it is a problem dealing with people who commute every day?

Mr. Arnett: No, Your Honor, although the problems in enforcing that... that provision of the code, which is 21031(d), are profound for the border districts, and certainly it aids in the enforcement of that regulation as well, these other sections that are at issue here, but we do have a statutory prohibition that technically covers that.

Our problems stem from the fact that all parties agree that about 90 percent of the illegal aliens in this country don't bring their families, but with Mexico so close to Texas, and with Mexico's situation as we see it deteriorating, we are very much afraid that cases like this involving the right particularly to education, which is... we agree wholeheartedly that education is extremely important, important to our residents as well, and we feel like that the trend may well be reversed in Texas, that in fact many more may bring their children in.

I think--

Unidentified Justice: Mr. Arnett, I would like to ask you, please, whether Texas interprets the statute as applying to exclude only students not capable of establishing domicile under Texas law.

Mr. Arnett: --That question somewhat is analogous to the question in Toll versus Moreno, and I think that one could take the Texas legislature's decision in this regard as being a judgment that one legally not present in the state is not entitled to establish a domicile.

Unidentified Justice: Is that Texas's interpretation of its statute?

Mr. Arnett: I don't believe that we have had that interpretation addressed by our courts, so for purposes of argument here, I am not really in a position to give the Court an authoritative construction of Texas law, because it hasn't been made by our courts.

Unidentified Justice: Assuming that the equal protection clause applies to these students, would you tell me how you would then analyze it, assuming a rational basis test were applied?

What is the permissible state objective?

Mr. Arnett: Well, there really is one overriding state objective, and that is the preservation of the educational resources of the state as well as those of the districts.

Certainly there are... the problem is localized within Texas.

Brownsville has an extremely much more difficult problem than El Paso does, due to the differing nature of the border city in Mexico.

As I say, Brownsville has had a 700-percent increase in one year.

Unidentified Justice: Do the undocumented aliens in Texas pay taxes, the property taxes, for example, that are used to support the schools?

Mr. Arnett: Well, there are various references in the record to that in our briefs.

Certainly they are subject... the property they live in is subject to taxation.

Now, whether they in fact add to the taxable resources of the school district, we don't think they do.

Unidentified Justice: Does Texas have an income tax, a state income tax?

Mr. Arnett: No, Your Honor.

Unidentified Justice: You are relying on property taxes and the ad valorem taxes?

Mr. Arnett: Sales taxes, but our sales tax exempts necessaries, so as I note in our brief, it really involves a great deal of questions upon which there is very little evidence in terms of trying to determine whether there is a... what the correlation is between taxes and benefits.

Concerning our interests, the one interest that Texas asserts here which we have predictably met with opposition on as to whether that is permissible is that as a subsidiary to protecting our resources, we would like to reduce the incentive for illegal immigration, particularly of families and of school aged children.

It has been said that we don't have a permissible interest in that regard.

It seems to me that the Court's language in Meyer versus Roe, that the state has legitimate demographic concerns about the rate of its population growth, and that such concerns are basic to the future of the state, dispels with that.

It also seems to me that the Court's opinion in Sosna versus Iowa, which talked about the interests of Iowa and not having an invasion for a divorce mill type of effect supports that.

Hines versus Davidowitz, citing Thomas Jefferson, to the effect that the states, whatever concerns the states alone was left to them; what concerns the nation as a whole was left to the nation.

In our case, this problem concerns Texas far disproportionately to any other state in the country.

We have two Senators in this nation.

We have not been able to get much done about it.

Unidentified Justice: General Arnett, this may be sort of a stupid question, but I have some trouble understanding the facts.

If you know who all the illegal alien children in the schools are, does the state take any steps to identify their parents and suggest to the federal authorities that they should be removed from the state?

Mr. Arnett: Your Honor, the testimony in this trial was that the federal authorities get vastly more references, vastly more complaints of illegal aliens than they are able to handle, and the purpose of--

Unidentified Justice: It seems to me that if you can identify 10,000 or 11,000 children who are going to school every day, and you know they are residents, it seems to me a particularly easy enforcement problem if you were desirous of getting them excluded, if you know who they are, and I presume you must, if you are going to throw them out of class.

Mr. Arnett: --Well, what you do... what we did do is require documentation for admission.

Unidentified Justice: I see.

Mr. Arnett: And we used those persons that came in after the court's order when we talk about the 10,000 figure, and incidentally, those 10,000 may well not have been here at the time of the court's order.

One month is plenty of time for a lot of people to cross the border.

As far as whether we could reasonably expect INS to deport them, we think not.

The evidence in this record is that INS gets complaints from citizens all the time that they don't follow, including addresses.

Unidentified Justice: But this is not citizens.

This is a state government.

Mr. Arnett: Your Honor--

Unidentified Justice: Isn't that your question?

This is the state government.

Yes, it is kind of a puzzling set of facts.

You mean INS just paid no attention to a state complaint?

Mr. Arnett: --Your Honor, INS apparently doesn't pay much... INS is so underfunded, it is not INS's problem.

Unidentified Justice: Well, does that mean that you assume... the other side argues this, and I didn't know what your position was... that these children will remain in the school district because it is just too much of an administrative burden to get them deported, so they are going to be part of the community anyway, and you would rather have them uneducated than educated?

Mr. Arnett: No, Your Honor, that is not what we feel.

We feel like it is clear that this statute being on the books prevents a substantial number of these children from coming in.

Houston has increased 60 percent in one year; as I have noted before, Brownsville 700 percent; another district it is 100 percent.

It is clear that children are coming in to take advantage of the education.

That is the problem.

The problem is not the kids that are here.

The problem is the future.

Unidentified Justice: I thought you said 90 percent of the illegal immigration are individuals who do not have children.

Mr. Arnett: No, they don't bring their families, Your Honor.

It is not that they don't have them.

They have them in Mexico.

Unidentified Justice: I see.

Mr. Arnett: About half of them are married.

Unidentified Justice: May I ask this question?

I understand you to say the problem was not the children who are already there.

I thought I read somewhere in the briefs that so many of these come and go.

I think I read somewhere that it was estimated that 90 percent of the illegals are not there permanently.

They just come and go.

What about that?

Mr. Arnett: That poses problems, Your Honor.

There is no question about it.

There are problems.

Don't get me wrong.

There are problems resulting from the children enrolled a month after the order, and Mr. Hardy will address some of those problems in the perspective of the school district.

But the real serious problem from the state's point of view is the ease with which people can cross the border and the incentive that this causes for further migration, and as we say, if the standard of review was that we had to prove that this offered an incentive, we can prove it now.

After a year, we can show the increase.

And the problem is one in looking toward the future.

We have to plan for a long ways in the future as a state, and it is not the 10,000 that are here that are... it was not the 182 that enrolled in Brownsville one month after the decision.

It is the 1,300, 1,500 that are there now that are causing serious problems.

That is my point.

Unidentified Justice: Mr. Arnett, returning to the questions with respect to whether the school district should assist the federal government in the deportation of these people, do I... I have the impression that your friends on the other side take the position that this is purely a federal matter, and the states and local districts have no jurisdiction, no responsibility for identifying deportable aliens.

Mr. Arnett: Well, in fact, Your Honor, if you accept the arguments of the other side, that we are infringing upon a fundamental right, or this is a suspect class, or that the state has no interest whatsoever in this matter, then how could a statute or a rule which required us to have the districts ask for documentation and turn them over to the INS be constitutional?

That statute would promote exactly the same interests that this statute promotes.

It would be a lot less effective.

Chief Justice Burger: Mr. Hardy?

ORAL ARGUMENT OF JOHN C. HARDY, ESQ., ON BEHALF OF THE APPELLANTS

Mr. Hardy: Mr. Chief Justice.

Unidentified Justice: Mr. Hardy, before you commence, what is the process for documentation?

The briefs are full of reference to undocumented aliens.

How does one become documented?

And who does it?

Mr. Hardy: Locally, within the Tyler Independent School District, where this case originated, in the Doe v. Tyler case, we had a local policy that was enacted by the school board to hopefully follow up to the state statute.

The state statute requiring... I am going to argue, hopefully, in a minute, on the residency-non-residency status, but the local policy was that if anyone that wanted to attend the Tyler Independent School District or the local school district on a tuition-free basis, all they had to show was legal residence within our district, then that could be done even if they could show any entitlement or that they were seeking entitlement to be admitted to this country legally, a letter to the Immigration and Naturalization Service that they were applying, any document, not that they had actually received that status, but they were at least attempting to receive that legal status.

In our case, I think it is important to note that every one of these students and their parents, they came across the border illegally.

They were illegal from the first time they walked across the river.

They did not overstay a green card or a work permit.

Unidentified Justice: If you say they are illegal, how could Texas determine that they are legal?

You say they are illegal when they come across, they stay there for six months or whatever, and you document them as being legal residents?

Mr. Hardy: Yes, if they have either authorization papers from the Immigration and Naturalization Service--

Unidentified Justice: They have to have something from the immigration authorities before you document them?

Mr. Hardy: --No, sir, they could have a birth certificate.

Unidentified Justice: From in the United States.

Mr. Hardy: From the United States.

Surely.

Unidentified Justice: So if they are still without evidence from the federal government or a birth certificate, they remain illegal and not eligible for the schools?

Mr. Hardy: That's correct.

Unidentified Justice: Well, if a parent has a green work card, does that satisfy it?

Mr. Hardy: No, sir.

It does not.

But my point--

Unidentified Justice: What is the evidence from INS that satisfies your rule?

Mr. Hardy: --If the people that have come across are residing here on a work permit, a permit that would allow--

Unidentified Justice: A work permit issued by whom?

Mr. Hardy: --INS.

Unidentified Justice: Right.

That is one.

Mr. Hardy: Yes.

Unidentified Justice: What are the others?

Mr. Hardy: Any legal status, any documentation.

We have I think it's an I-20 that it's called that the federal government has for a student permit to--

Unidentified Justice: Is that also issued by INS?

Mr. Hardy: --Yes.

Unidentified Justice: What is the green card?

Mr. Hardy: A green card is a work permit.

An orange card--

Unidentified Justice: Who issues that?

Mr. Hardy: --INS.

Unidentified Justice: Isn't that sufficient?

A green card is a commuter permit, isn't it?

Mr. Hardy: A green card is a commuter.

An orange card is a work permit.

Unidentified Justice: A green card is not sufficient?

Is that right?

If all you have is a green card, that is only a commuter card.

Mr. Hardy: No, sir, that is not sufficient.

That is basically a three-day pass that you are coming across into the country for a shopping trip or something of that nature.

Unidentified Justice: How about a work permit?

How about a work permit?

Mr. Hardy: If they have a work permit and they are residing in this country, that would allow them to attend the schools.

Unidentified Justice: Who are they?

You mean the parents?

Mr. Hardy: The parents' children.

If the parents--

Unidentified Justice: They may bring their children with them, if they have a work permit?

Mr. Hardy: --We allow them and would allow them with a work permit to have their children in the school free of charge.

I would like--

Unidentified Justice: Mr. Hardy, under Texas law, is it possible for an undocumented alien to become a legal domiciliary of Texas?

Mr. Hardy: --An illegal alien become a legal domiciliary?

I--

Unidentified Justice: To become a domiciliary?

Mr. Hardy: --I believe it is not.

And I will turn--

Unidentified Justice: Are there any Texas cases dealing with that question, do you know?

Mr. Hardy: --Justice O'Connor, if there are, I haven't found them, and I know of none.

Unidentified Justice: Well, certainly you can't become a legal resident of the United States without some evidence from the federal authorities.

Mr. Hardy: I agree.

Unidentified Justice: Isn't that right?

Mr. Hardy: That's correct.

Unidentified Justice: And so you are telling me that without some documentation it doesn't make any difference how long an undocumented child is present in Texas.

You do not recognize them as entitled to go to school or have the privileges of domiciliaries or residents.

Mr. Hardy: That's correct, because if they do not have legal resident status or domiciliary status legally, it is our argument and our position that they cannot attain the resident status requiring them to attend... or allowing them to attend school free of charge.

I think that the key issue in this point is the classification in the statute.

It is not alienage or citizenship; it is between a legal resident and a non-legal resident, or a residency statute and a non-residency statute.

The statute provides that non-resident citizens and non-resident aliens are both required to pay tuition.

The state classification was based upon a judgment that the state and the school district would provide a free education for those who are legal residents, and I submit to the Court that legal residents is more than mere presence within the boundaries.

The Court has continuously held, and I think that it is an appropriate holding, that in higher education branches, that a non-resident of the state can be charged a different tuition than a resident of the state, and we are talking about a resident within the country or a non-resident on legal status, and I think that that is a distinction that has to be to carry it out there.

Unidentified Justice: What do you make out of the United States position in this case.

The United States suggests that its immigration policy does not pre-empt some efforts of Texas to do what it is doing.

At least it suggests that this provision that is at issue here is not invalid because of federal pre-emption.

Do you understand that that is what their position is?

Mr. Hardy: Yes, that if we were to try... Texas does not have the right or authority... I think that we are pre-empted from making something along the lines of what is the legal... how they can come into the country.

Unidentified Justice: Do you make out of that that the United States is also suggesting that you could treat these illegal residents or these people who... you could treat them as legal residents?

Mr. Hardy: I don't think that we can treat them as legal residents.

Unidentified Justice: The United States says that you can do... at least you can do some things without worrying about the federal law.

Mr. Hardy: I disagree with that analogy.

I don't--

Unidentified Justice: Isn't it true that before the statute was passed you received federal funds based in part on the enrollment which included illegal, undocumented children?

Mr. Hardy: --Federal funds, locally our funds are broken down 2 percent federal funds, 40--

Unidentified Justice: Well, whatever the percentage, you did get some federal money which was more because of the larger enrollment attributable to these people, didn't you?

Mr. Hardy: --Yes.

Unidentified Justice: So it is pretty hard to say that the federal government has some rule against them being there when it actually paid you money because they were there.

Mr. Hardy: Well, I would think that you would have to go back and look at the fact that the federal government has a rule that it is against federal law to--

Unidentified Justice: For the family to be there.

Correct.

Mr. Hardy: --Or for them just to walk... to come into the country without some documentation.

Otherwise, the entire Immigration and Naturalization Service laws and the laws that have been upheld by this Court would have no merit.

Unidentified Justice: Does Texas permit illegal aliens to own real property?

Mr. Hardy: Yes.

I would question the word "permit".

Unidentified Justice: Well, do you recognize their titles when they come across and manage to remain undiscovered, or even if they are discovered, if nothing is done about them?

Suppose you say--

Mr. Hardy: Well, in our case--

Unidentified Justice: --Suppose you say to INS, here are a dozen illegal aliens, why don't you deport them and have them take their children with them?

And they say, sorry, we are too busy.

And those dozen people buy property.

And I suppose there are a good many illegal aliens who aren't destitute.

Mr. Hardy: --That's correct.

There are some in this case that own, you know, own property.

Unidentified Justice: Yes, they own a good deal of real estate.

You don't prevent them from doing that.

Mr. Hardy: Absolutely not.

Unidentified Justice: Although it is your law that... with respect to property, I suppose.

Do you give them driver's licenses?

Mr. Hardy: Some of them have driver's licenses.

Unidentified Justice: Can they lawfully obtain a driver's license from Texas?

In Texas.

Mr. Hardy: I do not know the answer to that.

Unidentified Justice: And they certainly can buy cars, though, can't they?

Mr. Hardy: Yes.

Unidentified Justice: Could Texas deny them fire protection?

Mr. Hardy: Deny them fire protection?

Unidentified Justice: Yes, sir.

F-i-r-e.

Mr. Hardy: Okay.

If their home is on fire, their home is going to be protected with the local fire services just--

Unidentified Justice: Could Texas pass a law and say they cannot be protected?

Mr. Hardy: --I don't believe so.

Unidentified Justice: Why not?

If they could do this, why couldn't they do that?

Mr. Hardy: Because... I am going to take the position that that is an entitlement of the... Justice Marshal, let me think a second.

You... that is... I don't know.

That is a tough question.

Unidentified Justice: Somebody's house is more important than his child.

Aren't they here at their peril?

Mr. Hardy: I am sorry?

Unidentified Justice: Aren't they here at their peril?

They take all the risks, no protection from the government, if they want to come here illegally?

Mr. Hardy: No.

I think that they are afforded all the due process procedures and the other problems that are attributable to that.

We are not talking about denying them all rights.

I am talking and attempting to talk about the resident and non-resident--

Unidentified Justice: You are talking about denying them all rights that every other similarly situated person has, such as fire protection, police protection, garbage collection, things like that.

You could take all those things away, it seems to me, under the state's argument.

Mr. Hardy: --I don't believe so.

That is not our position.

Unidentified Justice: Let me suggest this.

If a Virginian went to Texas to spend a year, but had no intention of becoming a domiciliary of Texas, would you allow him or her to attend a Texas public school for free?

Mr. Hardy: You are placing a one-year requirement on me?

Unidentified Justice: No, let's say six months.

Let's say six months.

Mr. Hardy: I know the court's rule on a one-year requirement.

Unidentified Justice: Let's say six months.

To make it realistic, let's say six months, for one term.

Would you allow the Virginian to go to the University of Texas tuition-free?

Mr. Hardy: I think we would have to look to the merits of that individual case, on the basis of, did they actually set up a legal residence here.

They have a right to set up a legal residence here.

Unidentified Justice: You don't have a one-year rule such as Virginia does, for example?

Mr. Hardy: No.

Unidentified Justice: Would you hazard a guess as to whether if one came to Virginia from Texas, and his house was on fire three days after he arrived, that Virginia would have any obligation to put the fire out?

Mr. Hardy: The difference here is that Texas has oil wells for its university and Virginia doesn't.

0 [Generallaughter.]

Unidentified Justice: Doesn't Texas have a non-resident tuition?

Mr. Hardy: Yes.

Unidentified Justice: What is a non-resident?

Mr. Hardy: It is the same--

Unidentified Justice: Somebody who... if somebody can acquire a residence in a day, whenever they come to the university, they become a resident immediately, don't they?

Mr. Hardy: --That's possible.

Unidentified Justice: Is it possible or not?

If there is a non-resident tuition, it means that it is not enough just to be there.

You are going to have to pay tuition as a non-resident.

Mr. Hardy: Yes, Your Honor.

If I might save the rest of my time for rebuttal.

Unidentified Justice: Mr. Hardy, before you sit down, please, how do you compare the children of the undocumented or illegal alien with the illegitimate children that the Court considered in Lalli?

The children themselves have a status over which they have no control, the children of these illegal aliens.

Does the Texas statute then punish these children for something over which they have absolutely no control?

Mr. Hardy: At a certain age, I would have to argue that, yes, that the children... I am realistic enough to know that they don't have either the know-how or the knowledge to go through the process at INS.

But I believe that one of the key issues is that the federal government has the law that provides that these people are illegal.

They have violated those laws.

They cannot attain a resident status.

They cannot become a legal resident or a local domiciliary of this country or the state of Texas, and getting away from the equal protection argument and going to the resident, non-resident status and the difference on the basis of tuition charging on that basis I think is appropriate.

Unidentified Justice: Well, if the Court were to find that equal protection clause applies to these children, then how do we deal with the question of these children with relation to children such as illegitimate children?

Do we have to apply then a heightened... standard if equal protection applies?

Mr. Hardy: With all due respect, may I ask that the state address that question in our rebuttal?

Thank you.

Unidentified Justice: Could I ask you a question before you sit down?

It is unfair to you, I suppose, but it demonstrates the interest of the Court.

We don't charge the question time to your time, counsel, so you can proceed on that theory.

Mr. Hardy: Thank you.

Unidentified Justice: I think that we tend to confuse the situation when we ask about university tuition charges.

Suppose we have Mr. Justice Powell's Virginian going down to the University of Texas as a visiting professor, but he has three elementary school children.

He is going to be there for six months.

Do you let them into your public schools?

Mr. Hardy: Absolutely.

Unidentified Justice: Do you charge them for it?

Mr. Hardy: No.

Unidentified Justice: Why not?

Mr. Hardy: The father and family has a legal right, a legal residence, and a legal domicile within our borders.

Unidentified Justice: Well, he doesn't intend to stay there.

Mr. Hardy: But I don't think that that is the test on the domicile of someone that has the right to be within the borders.

Unidentified Justice: You are not making the distinction between the American citizen from Virginia and the Mexican American... or the Mexican citizen.

Mr. Hardy: To me the analogy is such that a Virginian or someone from Washington, D. C., coming to the state of Texas has that right.

They are legal residents of this country, and they can be domiciled under the Constitution wherever they want to be.

They have a status that cannot be gained by the people coming across the border from Mexico without some--

Unidentified Justice: So if he were a visiting professor from the University of Mexico in Mexico City, you would have no problem?

Mr. Hardy: --No, because I believe that the professor would have the proper authority and the proper identification to be here legally.

He would be here either on a work permit, a temporary resident status, or some other indication that would allow him to be here in the country.

Under some color or title or interest in law, he would be coming here as an invitee.

Unidentified Justice: Does your argument come down to the proposition of whether the person is legally or illegally in the state?

Is it not that simple?

Mr. Hardy: I think that it is that simple, but for some reason I haven't been able to boil it down that simple, that the resident and the non-resident status, I believe, is the key issue before the Court.

Unidentified Justice: Well, the states under a long line of decisions are prohibited under all but the most narrow circumstances from prohibiting migration from one state to another within the United States, so that Texas can't fence off its borders to Louisianans or... whether they be aliens or citizens or anything else.

You are saying, aren't you, that the difference is that this is a foreign country.

Mr. Hardy: Absolutely.

I think that being a... we are talking about a federal law.

Being a U. S. citizen grants certain rights regarding your movement within this country of any of the 50 states.

Unidentified Justice: Mr. Hardy, one last question so far as I am concerned.

Mr. Hardy: Yes, sir.

Unidentified Justice: Could Texas pass a law denying admission to the schools of children of convicts?

How about escaped convicts?

Mr. Hardy: I am sure they could pass a law.

I don't know--

Unidentified Justice: Would it be constitutional?

Mr. Hardy: --No, it would not.

I don't see a rational basis.

You are talking about all kinds of constitutional problems.

Unidentified Justice: We are dealing with children.

I mean here is a child that is the son of a murderer, but he can go to school, but the child that is the son of an unfortunate alien cannot?

Mr. Hardy: Basically--

Unidentified Justice: Who even pays his taxes.

The aliens, you know, they pay taxes, too.

Mr. Hardy: --I don't want to move too far... I can answer that question, but one thing that would concern me, I realize it is only a federal misdemeanor crime--

Unidentified Justice: Isn't your point the alien point only?

Isn't that it?

Mr. Hardy: --I think that, yes, sir, that is one of the main points.

Unidentified Justice: Very well.

Mr. Hardy: Thank you.

Chief Justice Burger: Mr. Schey?

ORAL ARGUMENT OF PETER A. SCHEY, ESQ., ON BEHALF OF THE APPELLEES

Mr. Schey: Mr. Chief Justice, and may it please the Court, I would like to follow up on some of the issues that the Court has already raised, and perhaps also clarify some factual questions.

Firstly, the state of Texas seems to argue that it is in a highly unique situation, and they downplay the importance of this problem to states like California, et cetera.

This Court should note that it is a matter of public record... Immigration and Naturalization Service keeps statistics on these kinds of matters... that in fact the state of California has a much larger non-citizen community than does the state of Texas.

Unidentified Justice: I have great problems with who has got accurate figures as to aliens.

I mean, do aliens register?

No.

Mr. Schey: This is a difficult--

Unidentified Justice: Are they known?

No.

What is this, a guess?

Mr. Schey: --It is a difficult figure to measure.

However, according to, Number One, apprehension statistics, which are gathered by the Immigration Service, and Number Two, numerous, in excess of hundreds of demographic studies which have been conducted both by the Department of Labor, the Department of Justice, the Department of State, they are able to ascertain where the majority of people are moving to, where the majority of people are living, where the majority of people are paying taxes, et cetera.

Unidentified Justice: Well, don't most Texas school districts, when you come for your kindergarten or first grade or whatever it is, ask you to fill out a simple form asking where you were born and what country you are a citizen of?

Mr. Schey: Yes, they do, and contrary to the position taken by counsel for Texas, the District Court specifically noted that those kinds of questions, the District Court opinion at Page 574, that those kinds of questions to produce proof of legal citizenship in this country are directly targeted against Spanish surnamed students in the schools.

Unidentified Justice: Well, you are not arguing in the District Court now.

This is the Supreme Court.

Mr. Schey: I understand that, Your Honor, but just as a finding of fact and in terms of what the proof was, I merely raise it for that reason.

I think it is important to note that not only did the state of Texas seek federal funding for both bilingual and migrant education prior to 1975, when they enacted this statute, but they have continued to do it since 1975.

In fact, the unequivocal testimony and conceded in their reply brief is that to this day they send out so-called migrant recruiters, who go out into the Mexican communities, not just by counting these people for purposes of the census count, but they actually send out what they call migrant recruiters into the Mexican communities, where they knock on doors, they go to the... they knock on residential homes, and they recruit undocumented children, which means they fill out little pieces of paper which they then send to the federal government, and pursuing this way, they not only gain a windfall by taxing the parents of these children and then not educating the children, but they gain a further windfall by submitting these pieces of paper to the federal government and by getting $250 million per year.

One quarter of the total national allocation for migrant and bilingual education goes to the state of Texas.

Unidentified Justice: Is that true of the Tyler School District?

Mr. Schey: That is true of all the school districts.

Unidentified Justice: That isn't a border--

Mr. Schey: That is true of all the school districts in the state of Texas.

Unidentified Justice: --Are you suggesting they get these slips filled out and use them to get federal funds but do not admit those children?

Mr. Schey: Precisely.

That is the finding of the District Court.

There are three or four witnesses who testified to that, including the people themselves who are going out--

Unidentified Justice: And that is true in the school district or districts involved here?

Mr. Schey: --That is correct.

Including... people testified in our trial who went out and were knocking on these doors to fill out these applications.

Some little church set up a little school where they had maybe 50 undocumented children in one big room, and these recruiters would come around and fill out little pieces of paper.

Unidentified Justice: What do you mean by recruiters?

Mr. Schey: That is just what they call them.

They call them migrant recruiters.

They are employees of the state--

Unidentified Justice: Recruiters for what?

Mr. Schey: --Excuse me?

Unidentified Justice: Recruiters for what?

Mr. Schey: They are simply recruiting these little pieces of paper, is what they are really doing.

That is the title given to them by the state of Texas.

They go out and they complete little forms which measure the total number of migrant children and the total number of children needing bilingual education in the state.

They submit this to the federal government, and the state of Texas alone ends up with one-quarter of the national federal moneys.

Unidentified Justice: Was there testimony that any of these recruiters were from the Tyler School District?

Mr. Schey: I am not sure if there was.

We had about five or six different school districts that were involved in the consolidated case.

I think that the particular recruiter who testified in our case was from the Dallas Independent School District, and we called that person, but also a statewide official testified from the Texas Education Agency.

Unidentified Justice: Dallas is a considerable distance from Tyler.

Mr. Schey: I am sorry?

Unidentified Justice: Dallas is a considerable distance from Tyler.

There must be several school districts in between.

Mr. Schey: That's correct, but... that's correct, but this is a state program, and what I am saying is that a statewide official testified that this was happening.

Unidentified Justice: But I mean there must be several school districts in between.

Mr. Schey: That's correct, and it apparently is happening in every school district in between, because it is a statewide program.

It is the Texas Education Agency that is doing this.

I would also like to point out that the residency question has raised many, many questions here.

The state has a residency law, as they have pointed out.

That residency law worked fine.

That residency law worked until 1975.

Under that residency law, people who attempted to just come across the border solely for the purpose of going to school, there is a special provision within their residency law that prevents people from simply coming across the border for the sole purpose of going to school, and a federal challenge to that statute was just completed in the Fifth Circuit, and that statute was upheld, so that a child cannot... the name of the case is Arredondo versus Brockette, and there is a petition for cert pending.

So, children cannot simply willy-nilly come into the school, stay there for a few days, solely for the purpose, leave their parents behind, and attend school in Texas.

The state of Texas defines undocumented people as residents for numerous purposes, trusts, wills, some criminal proceedings, for the payment of property taxes, so they have had no trouble... neither has the federal government, for that matter, had trouble defining people who are in a questionable immigration status, not a lawful, permanent status with the green card.

Unidentified Justice: I am having difficulty seeing what your observations have to do with this case.

The issue before the Court is whether a person illegally in the state of Texas and in the United States is... must be granted these services.

What they do in these other areas has nothing to do with this case.

Mr. Schey: Well, Your Honor, the problem with that characterization of the issue of the case, which is the way the state of Texas characterizes it--

Unidentified Justice: Well, how would you characterize it?

Mr. Schey: --illegal aliens, the problem with that is that that is a term, that is a term that you can certainly read every day of the week on the front page of the Washington Post.

It is not a term that you will find on any page of the Immigration and Nationality Act.

In other words, the problem is, and this Court addressed fully this problem in DeCanas versus Bica... let me just explain.

In DeCanas versus Bica, the state of California didn't beat the federal government to the punch.

The state of California only excluded from employment those people who the federal government had already determined could not work in the state, and even with that this Court was not satisfied, and remanded the case for a finding of potential conflict with federal law.

But here, you have a statute that every district court judge that has looked at it carefully and that has examined the Immigration and Nationality Act, that the state is going to incorporate a federal concept.

They have to do it somewhat carefully.

That is the notion of pre-emption.

And it also ties into the rationality of the statute.

Who precisely are they keeping out of school?

Well, in this particular case they keep out of school "illegal aliens".

Well, that term isn't used anywhere in the Immigration or Nationality Act.

Under the Immigration and Nationality Act, the legality of a person's presence in this country is measured against deportation statutes.

The statute says you cannot go to school if you did not enter the country legally, but there are thousands upon thousands of children who did not enter the country legally, yet they are entitled to remain in the United States.

There are numerous statutes, there are numerous regulations, and these are all covered in our brief, there are numerous policies, there are operation instructions which allow people to remain here even though they did not enter "legally" as the District Court held.

Upon looking at this carefully, this particular statute, and its implementation, has been a monument to ambiguity.

They really don't know who they are keeping out of school.

Let me give you one example.

We had a witness testify in our case, not a plaintiff... and none of our plaintiffs are under order of deportation; they all entered illegally, but every single one of them is documentable under federal immigration laws... aside from the plaintiffs, we had a witness testify.

This witness entered the United States at the age of four months.

Her father is a United States citizen born in Texas.

Her mother is a lawful permanent resident.

She has been in the United States for nine years.

She has attended school in two states.

This also gets to your question, Justice Rehnquist, about putting up a wall between other states.

She didn't come to Texas from Mexico.

She came to Texas from, I believe, Missouri, or New Jersey, where she attended school for two years.

This child will never be deportable from this country.

Maybe the New York Times would call her an illegal alien, but no immigration judge would ever call her an illegal alien.

No court would ever authorize her deportation.

Unidentified Justice: You refer to her as documentable.

What does that mean?

Mr. Schey: That means, Your Honor, that when she gathers the necessary documents, when she gathers her mother's birth certificate... her mother was born in the Yucatan, and she is represented by an immigration counsel, and her immigration counsel testified that he had been working for two years trying to get the mother's birth certificate from the Yucatan.

Then they had to get the father's birth certificate from Texas.

When they finally gather all that preliminary documentation, they can go down to the Immigration Service and begin the process of documenting that child.

We had the ex-commissioner--

Unidentified Justice: Had this been done at the time of trial?

Mr. Schey: --They were in the... for two years they had been in the process of gathering the preliminary documentation.

Now, once they go down to the Immigration Service, the Immigration Service doesn't do anything.

They have a thousand people show up every morning filing these kinds of applications.

They will only give you the kind of letter that counsel for the state of Texas keeps talking about.

Well, we will let these children in once they get a letter saying they are legally here.

The Immigration Service doesn't give out those kind of letters.

What they will do is, once they have processed the child's documentation, they will give that child a green card, or they may even decide that this particular witness is a derivative citizen, and they will then give her citizenship papers.

The ex-commissioner of the Immigration and Naturalization Service testified in our trial.

That process can take anywhere from two to seven years, given current backlogs.

He testified and an immigration judge testified subsequent to this little child testifying that the chances of this child ever being deported were simply zero.

So, we can say, well, who does this case involve?

Doesn't it simply involve legal versus illegal aliens?

Unfortunately, it is not that simple.

Here is a little child who had been for two years in a row, she had gone and tried to enroll in the Texas public schools.

She was not allowed to enroll, even though she had an immigration counselor go down to the school with her.

They wouldn't let her enroll.

She is the child of a U. S. citizen.

This immigration counselor testified he had approximately 200 open cases just like hers in Houston alone.

Children of United States citizens who could not attend the public schools in the state of Texas.

Unidentified Justice: Your time is running.

Isn't your basic position that in any event, however here, even though admitted illegally, these children are persons under the Fourteenth Amendment, entitled to protection of the equal protection clause, and that that has been denied them, and that this statute doesn't satisfy whatever the standard may be of state interest?

Isn't that your position?

Mr. Schey: That is our basic position.

Unidentified Justice: Well, are you going to argue it?

I haven't heard a word on that.

Mr. Schey: That is our basic position.

Our basic position is that regardless of a child's deportability or non-deportability, in fact, none of these children have been established to be deportable, the state has not established any rational basis for excluding these children from the Texas schools.

Unidentified Justice: Mr. Schey, would you concede that it would be possible, assuming the equal protection clause applied, that it would be possible for a state to provide its public school education only to domiciliaries of the state.

Mr. Schey: Yes, and that is precisely what happened in Texas until 1975.

In 1975, let us assume that a child--

Unidentified Justice: All right.

You would concede that that is possible.

Mr. Schey: --I think it is possible.

In other words--

Unidentified Justice: All right.

Can a child of an alien who has no authority to be in the United States of any kind, and the child is not born here, can that child become a domiciliary?

Mr. Schey: --Yes, and I believe Texas law provides for that.

Texas--

Unidentified Justice: Under Texas law.

Mr. Schey: --Under Texas law.

Unidentified Justice: How?

Mr. Schey: The Attorney General of Texas wrote a memorandum, which is in evidence in our trial, to that effect in 1975, and counsel has indicated it was in response to that memo, partly in response to that memo, that they enacted this statute.

In other words, I think that is essentially a matter of state law.

Unidentified Justice: Could a state legitimately have laws that would prevent such a person from becoming a domiciliary of the state?

Mr. Schey: I would, as a constitutional matter, I think that that is conceivable.

I think that a state law which was carefully tailored to track federal immigration laws and policies as opposed to this law where they conceded at trial they hadn't even been in touch with the immigration service for five years, to update themselves on policy, but conceivably if they were to carefully track immigration laws, regulations, and policies, and let me give you an example that I could conceive of.

A child is under a final non-appealable order of deportation.

The federal government has made a judgment on that child or that child's parents' ability to reside in this country.

I could... I am not suggesting that from a... I am not saying that that would be wise legislation, but I think conceivably it would be rational legislation.

That is what California has done.

California has a welfare and institutions code, 11-104, Which--

Unidentified Justice: You are now getting into your colleague's time, counsel.

Mr. Schey: --Thank you very much.

Chief Justice Burger: Mr. Roos?

ORAL ARGUMENT OF PETER D. ROOS, ESQ., ON BEHALF OF THE APPELLEES

Mr. Roos: Mr. Chief Justice, Members of the Court, as Mr. Schey has articulated, it is our view that the nub of this case is that undocumented children are similarly situated to their permanent resident and citizen classmates.

I would like to highlight some of those facts, and then get into the legal discussion that the Chief Justice asked about concerning... and Justice Brennan, because the issues are on the table.

With respect to the residency situation, I think it is highlighted by the fact that the plaintiffs in the Doe trial have been here for a number of years.

Indeed, the Doe family has been here since 1964.

They own property in Tyler.

They pay taxes on that property.

Their children attended schools for five or six years before they were excluded from those schools.

Unidentified Justice: But they are not legal residents or legally authorized aliens in this country?

Mr. Roos: They are unlawful aliens in this country, they came to this country unlawfully, but they have been here for 15 years.

They have paid taxes.

Their educational needs are the same as other children.

Indeed, these children... there is a lot of discussion in the briefs about the unique educational needs of undocumented children.

Indeed, undocumented children are like other children.

Some, like the Doe children, have been here for 15 years, have no English language problems, have no particular problems whatsoever.

Others are new immigrants, and as the testimony shows, like new immigrants, like all new immigrants, they may have language needs, may have various other needs, but indeed, to fence out a class of undocumented children is to fence out a class of children.

Unidentified Justice: What is your explanation for the parents' continued stay in the country unmolested by the federal government?

Mr. Roos: The testimony in both the Doe trials and in the other trial was that indeed the Immigration and Naturalization Service has very limited resources.

They do not go after families except in a rare instance.

That is in the record.

The district--

Unidentified Justice: Are you suggesting that there is a tacit or unexpressed federal policy that these people should remain in the country undisturbed?

Mr. Roos: --I think the one--

Unidentified Justice: Is there something in the record to support that?

Mr. Roos: --There certainly is something in the record.

Unidentified Justice: Is there any finding by the courts or not?

Mr. Roos: The... yes, in the In Re Alien Children case there was such a finding.

Unidentified Justice: In what case?

Mr. Roos: We have two consolidated cases that--

Unidentified Justice: Just tell me the number.

Mr. Roos: --The In Re Alien Children number is 1934.

Unidentified Justice: 1934?

Mr. Roos: 1934, Your Honor, and that finding is based upon testimony of Leon L. Castillo.

Unidentified Justice: What is the finding?

Mr. Roos: The finding is that there is a de facto amnesty policy in the United States.

Unidentified Justice: So they are de facto legally resident in the United States?

Mr. Roos: That is correct, Your Honor.

Unidentified Justice: You think that is the finding?

Mr. Roos: Yes, and that was the testimony of Mr. Castillo's.

That is not the official policy, but that is the de facto policy.

When you have--

Unidentified Justice: But can any person who is here in violation of an Act of Congress be a de facto legal resident if the Act of Congress says he is not a legal resident?

Mr. Roos: --I suppose without getting into... I think when the term was used by the former commissioner of the Immigration and Naturalization Service, he was not using it as a term of art, he was using it to describe the situation.

These children are here.

They are going to remain here.

And that testimony was repeatedly... repeatedly repeated by his subordinates, the director of the Immigration and Naturaliation Service in Dallas and the director in Houston, that indeed they do not find families.

Families generally are not reported to the Immigration and Naturalization Service, and thus in fact will remain here.

Mr. Castillo also in making the statement observed that, as others observed in the record, that indeed there are something like 250 INS border patrol agents for 2,000 20 miles of Texas border, a number that is substantially fewer than the number of police in Dallas, Texas.

Those statistics, I think, tell us something about the commitment to manning the border, and certainly tell us the likelihood of these children ever being identified and deported.

Unidentified Justice: May I ask you, would it be contrary to federal law if state authorities when they found aliens who were illegally in the country to escort them to the border and tell them to go home?

Is that contrary to federal law?

Mr. Roos: I believe it would, Your Honor, under--

Unidentified Justice: Well, is there some case that says that?

Mr. Roos: --Well, Hines versus Davidowitz, and the line of cases under pre-emption.

Those cases make clear that regulating the ebb and flow of a national border is exclusively a federal--

Unidentified Justice: Of course, that was a state law.

That was a state law.

But suppose just as a self-help matter, the state escorted people to the border.

Do you think that is contrary to... they would have no authority to do that?

Mr. Roos: --I would certainly argue that they would not, and the policy reasons that underline Hines and those cases would militate against permitting such a policy.

Unidentified Justice: What about a posse comitatus, where a judge is theoretically, he may have difficulty doing it, but he is entitled to call upon bystanders to enforce an order of a court.

Wouldn't the people escorting these people to the border be much like a posse comitatus?

They are not officially endowed with status, but they are helping to enforce a federal statute?

Mr. Roos: I would think, Your Honor, if there were an express policy of the federal government permitting states to engage in this sort of activity, that the policy implications of Hines and other cases would not be... would not be implicated, but absent essentially a deputizing of state officials--

Unidentified Justice: Well, what about DeCanas?

Mr. Roos: --What about?

Unidentified Justice: What about our employment case?

Mr. Roos: DeCanas, Your Honor.

I suppose it is notable for purposes of this case that of course DeCanas was not an equal protection case.

Unidentified Justice: Well, I was Just talking pre-emption.

That is all you were talking just a moment ago.

Mr. Roos: Yes.

Well, as I read DeCanas, it allows states to enact laws that have purposes other than regulating the border, and if those purposes have--

Unidentified Justice: What if the purpose is to deter coming to this country?

What about DeCanas?

Mr. Roos: --Your Honor, we believe that such a purpose ought to be declared impermissible under the equal protection clause, putting aside any implications it may have under pre-emption, that under this Court's rulings, that for a state to go about regulating the border, to have as a--

Unidentified Justice: So you think if the state of Texas passed a law that said aliens illegally in the country may not be employed, that it would be unconstitutional?

Mr. Roos: --Your Honor, we have given that matter considerable thought.

Unidentified Justice: I would think you would.

Mr. Roos: It seems to us that this Court's alienage decisions, equal protection decisions have always kept one eye on what the federal government has done, and in this particular area, when we are talking about employment, the federal government has essentially prohibited the employment of undocumented aliens.

Now, it is our belief that indeed, that not only is this legislation irrational, but indeed ought to be measured under a compelling state interest test.

Unidentified Justice: But suppose it isn't.

Mr. Roos: Even supposing it isn't, Your Honor, we believe that where there is an express federal purpose, such as barring undocumented people from work, that if a state passes a law to essentially implement that express federal purpose, then this Court ought to look at that with the deference it gives to Congressional--

Unidentified Justice: Well, the federal government has a law against illegally entering the country, a criminally law, illegally entering the country.

And they budget a lot of money to keep people out.

Now, a state says, we would like to held the federal government do that, just like... just in the same way you said they could supplement the federal with respect to employment.

Mr. Roos: --First, I suppose there are two level of response, Your Honor.

The first level is that--

Unidentified Justice: Mr. Roos, why don't you use the Fourteenth Amendment in one of your responses?

Well, I am asking him about pre-emption.

I am not asking about the Fourteenth Amendment--

--I haven't heard the Fourteenth Amendment or whether or not this is a person yet, and this is about five minutes from the end of the argument.

Mr. Roos: --I will address that.

Unidentified Justice: Two minutes.

Two minutes.

Mr. Roos: Yes, Your Honor.

Unidentified Justice: I think some time we ought to get an argument on whether or not these children are persons within the Fourteenth Amendment.

Mr. Roos: Your Honor, if you would address your question again.

Unidentified Justice: You are on your own.

0 [Generallaughter.]

Mr. Roos: Let me address Justice Marshal's question briefly.

It obviously is a central--

Unidentified Justice: It is not mine.

I bet you even money some others are interested in that point.

Mr. Roos: --The equal protection clause speaks in terms of coverage of persons, and it is to be contrasted historically with the clause that immediately precedes the equal protection and due process clause, which grants privileges and immunities to citizens.

This Court has looked to the due process and equal protection clause, or to the due process clause and have said that persons are undocumented... include undocumented persons, because they are indeed persons.

The legislative history which we have set forth in our brief tells us really two things.

It first of all tells us that the primary framers of the Fourteenth Amendment clearly thought of, at least in terms of coverage, of the due process clause and the equal protection clause as protecting the same group of people.

In our brief, we cite to Representative Bingham, who was commonly acknowledged to be the author of Section One of the Fourteenth Amendment, and he spoke of the due process and equal protection clauses alike as protecting the citizen and the stranger.

Unidentified Justice: Do you think Representative Bingham's comments throughout those debates were consistent with one another?

Mr. Roos: Were--

Unidentified Justice: Consistent with one another?

Mr. Roos: --Certainly with respect to coverage.

We have found, and there is not cited in any opposing brief, and there are, as the Court is aware, any number of opposing briefs--

Unidentified Justice: Well, there is the Congressional vote, too.

Mr. Roos: --Certainly.

We found nothing that would indicate that insofar as coverage is concerned, that Representative Bingham said anything inconsistent with that.

Likewise, on the floor of the Senate, the floor manager was Senator Howard, and Senator Howard spoke of the two clauses in terms of coverage in the same words, and spoke of them together, and when he spoke of them, he spoke of them as protecting whomever should be within the country.

So, I believe on the basis of the clear language of those provisions, the history, and indeed the logic which has been pointed out earlier, absent the right of coverage under the equal protection clause, the state could do, could treat undocumented people arbitrarily and irrationally.

What would be the limitations upon a state should there not be the minimal protection of the equal protection clause?

So, as well as the clear language and history of that clause, we believe that logic compels a similar finding.

Unidentified Justice: If Texas is giving... is required to give free bilingual education to all the illegals who want to come to the United States from Mexico, which they apparently can do almost without any limit or hindrance, does that tend to encourage or discourage the continuance of this illegal migration north?

Mr. Roos: The evidence quite clearly reflects that education is a minimal pull factor in terms of illegal immigration.

Unidentified Justice: What evidence?

Mr. Roos: That is repeatedly--

Unidentified Justice: What evidence are you referring to?

Mr. Roos: --I am referring to testimony by the state's own witnesses.

We would, for example, refer to Shane Davies, who said, as an attractive factor, no, it is not.

We would refer to the testimony of the director of the Immigration and Naturalization Service in Dallas, a Mr. Heston, who said, no, indeed, immigration, unlawful immigration has little to do with... or education has little to do with unlawful immigration.

I would also point this Court to, with respect to undocumented people returning to Mexico after the statute, the evidence by, again, the state's own witness, the superintendent of Brownsville, said, no matter what, these children will remain here.

So, I think that the fact is, they will remain here, that indeed education is a minimal pull factor, and the preclusion of education will not appreciably deal with the unlawful immigration problem.

Unidentified Justice: Mr. Roos--

--Mr. Roos--

--After you, Justice Brennan.

After you.

Go on.

Is the question of domicile a matter of state law?

Mr. Roos: Your Honor, I am aware of cases that have gone up and down on Elkins--

Unidentified Justice: What did this Court hold in Elkins against Moreno?

Mr. Roos: --This is not certainly a domicile law.

As we have pointed out, some--

Unidentified Justice: My question is, is it a question of state law?

Mr. Roos: --It is... it would certainly be my view that one could not use domicile as a proxy for alienage.

For example, well, that if undocumented persons are indeed persons under the equal protection clause, and thus a state legislation must treat them minimally rationally, and indeed we believe insofar as they are denied... innocent children are denied an education with heightened scrutiny, that that indeed... it could not then turn around and say, we have got a domiciliary law, aliens cannot become domiciliaries, and then keep all these innocent children out of school.

That would seem to be contrary to any sort of basic notions of justice or of the Fourteenth Amendment.

Unidentified Justice: Mr. Roos, are you arguing that even if this statute were to be regarded as implementing a federal policy to exclude illegal aliens, even so regarded, that nevertheless, you are entitled to a holding that the equal protection clause renders the statute unconstitutional, even if it is implementing of a federal policy?

Mr. Roos: If there were an express federal policy excluding--

Unidentified Justice: I know.

Take my hypothetical.

Not if there were.

Assume that there is an express federal policy, and that this statute implements that policy.

Mr. Roos: --If there were an express federal policy saying undocumented children should not attend school, then it would be our position that Texas might well be able to--

Unidentified Justice: That is not my question, Mr. Roos.

My question is, if the Federal policy is to exclude illegal aliens from the United States, and this statute is to be regarded as implementing that federal policy, are you arguing that nevertheless the statute violates the equal protection clause?

Mr. Roos: --We are arguing that, and indeed, as indicated, this has minimal impact on keeping undocumented people out of the country.

Unidentified Justice: Mr. Roos, this is why I have been trying to get in here.

It seems to me that, or else I am confused, that just what Mr. Justice Brennan has asked you is driving you from any pre-emption argument into the equal protection argument.

Aren't you confronted flatly with the DeCanas case?

Mr. Roos: We are--

Unidentified Justice: How can you avoid it?

Mr. Roos: --With respect to equal protection... as the Court has recognized, indeed, the primary thrust of this case is an equal protection case.

We do not argue pursuant to DeCanas that this statute, because it has an incidental effect on immigration, is thus pre-empted.

Now, we do make other pre-emption arguments that the Court should be aware of.

Indeed, it is our position that federal education policy as found primarily in the Elementary and Secondary Education Act expresses a federal policy that all children, especially those children who are most in need, and in many instances those are undocumented children, should be provided with education if they are to be here.

Unidentified Justice: And would you distinguish DeCanas then by restricting it to the employment field?

Mr. Roos: I would restrict DeCanas to dealing with the employment field and the incidental effect on unlawful immigration.

Unidentified Justice: And on that basis, you are not to be driven off your pre-emption argument?

Mr. Roos: No, the pre-emption argument is predicated upon a different federal statute or set of statutes, the Elementary and Secondary Education Act, which in our view mandate that all children, especially those in need, receive free public education, and we would point out, as we do in our brief, that there are a number of federal titles to the elementary and secondary education act which would have been... would invited openings by Congress if it had been so inclined.

For example, there is the Federal Bilingual Education Act, Title VII of the Elementary and Secondary Education Act.

And in that Act, one of the definitions of who is entitled to a program are people born in another country.

They have never said anything about undocumented aliens.

There is obviously a common assumption that undocumented aliens frequently are migrant children.

There is a Title I migrant program.

Never has Congress said, we exclude from inclusion in the Title I migrant programs undocumented children.

Unidentified Justice: Mr. Roos, let me interrupt you to ask a refinement of Justice Brennan's question.

You answered, when he said, supposing that the state statute implements the federal policy of keeping aliens, unlawfully admitted aliens out, you said you would nevertheless make the equal protection claim.

Would you make the same argument if you... if it were demonstrated that the state statute substantially implements the federal policy, not just theoretically or minimally, but if it could be shown that there is a substantial deterrent as a result of a state statute?

Mr. Roos: The distinction that we draw, and I tried to draw with Justice Brennan, is that where the federal policy is expressed with respect to this particular service, education in this case--

Unidentified Justice: Well, but the policy that I think... at least I understood Justice Brennan to refer to is the policy to keep aliens out unless they are lawfully admitted, which is clearly a valid federal policy.

Mr. Roos: --We argue that it would be offensive to the principles of Hines and this Court's long line of cases that this would be... that for a state to set about to regulate the border, even if it were in pursuance of a state policy--

Unidentified Justice: I am not talking about... If this statute, just denying them an education, substantially furthered that federal policy, would you say that still was a violation of equal protection?

You can just say yes or no.

Mr. Roos: --Yes.

Unidentified Justice: All right.

I take it then you would say that if Congress passed a law saying, pursuant to our power to control immigration and naturalization, we hereby forbid states to offer education to illegal alien persons, people who are here illegally, would you say that would violate equal protection?

Would it be the equal protection component of the Fifth Amendment, or not?

Mr. Roos: Obviously--

Unidentified Justice: That can be yes or no, too.

Mr. Roos: --I am not certain that it can, but it is... I mean, each case has to be decided on its own.

Unidentified Justice: Well, how about that one?

0 [Generallaughter.]

Mr. Roos: It would be our view that if there indeed were an express federal policy excluding undocumented children from school, that if the state passed a law--

Unidentified Justice: Not if a state.

The federal government passes a law that says no illegal aliens shall be educated by the states.

Would that violate equal protection?

Mr. Roos: --I would certainly feel that there are reasons for holding that it would violate equal protection, but I understand this Court has traditionally given deference to Congressional alienage classifications.

Unidentified Justice: You spoke a while ago of a 15-year-old who came to the country when he was six.

Is Texas required to grant him admission to all its state universities and graduate schools as a resident, or could they charge him non-resident tuition?

Mr. Roos: It would certainly be--

Unidentified Justice: Illegal, now.

Mr. Roos: --Yes.

Unidentified Justice: He is illegally in the country.

Mr. Roos: There are distinctions--

Unidentified Justice: That is a yes or no, too, isn't it?

Mr. Roos: --There may be distinctions between elementary and secondary education--

Unidentified Justice: I am just asking about university, undergraduate and graduate schools.

If they charge non-residents of Texas three times as much as residents of Texas to make the stakes high, must they admit this illegal on a Texas residence rate?

Mr. Roos: --I would suggest that the answer is not a yes or no, that indeed one would have to look at the state purpose and--

Unidentified Justice: The state purpose is already there.

Many states charge non-residents, have a resident tuition fee and another.

Mr. Roos: --What they would do, I believe, under your hypothetical, would be using alienage to define resident.

If the--

Unidentified Justice: Or is it using illegal alienage?

Mr. Roos: --Well, using illegal alienage.

Unidentified Justice: This is not an alienage case.

It is an illegal presence case.

Mr. Roos: Your Honor, this Court has at various times noted that subclasses of aliens are still protected by the alienage analysis of this Court's ruling.

Unidentified Justice: Prior protection.

Due process.

We are just talking... my question is, narrowly, tuition at the University of Texas and the Texas Medical School.

Must the state of Texas give him or her residence tuition instead of three times, if that were the statute.

Mr. Roos: I think that the analysis would generally be no, Your Honor.

I think that the conclusion would generally be no, but of course each case ought to be looked at on its own.

You would be dealing with people above the age of majority so the innocent factor that was referred to earlier, certainly, the argument for compelling interest is not the same, and indeed the analysis under a rational basis would be somewhat different.

Unidentified Justice: Mr. Roos, isn't Texas somewhat caught in a bind here between the federal education policy which affords funding for bilingual education and the federal immigration policy which renders these people illegally present in the United States, and therefore in Texas, as one of the states?

What is Texas supposed to do?

Mr. Roos: Well, I suppose the answer is that 49 other states admit these children because they feel that they are here and it is their obligation to educate people who are in their boundaries and who in fact need education.

Texas alone among the states poses this terrible dilemma, and I think it is important to emphasize, as Mr. Schey mentioned earlier, that indeed California, for example, the testimony reflects likely has twice as many undocumented persons as does Texas, yet the Court will note that an amicus curiae brief was filed by the California State Board of Education.

No, I think that the Texas dilemma is something that has been suggested as--

Unidentified Justice: Well, but Texas and California are free to follow two different policies on the matter, are they not, unless they violate an Act of Congress or a provision of the federal Constitution?

Mr. Roos: --They certainly are, and it is our position here, of course, that this violates the federal Constitution.

Chief Justice Burger: Mr. Arnett?

ORAL ARGUMENT OF RICHARD L. ARNETT, ESQ., ON BEHALF OF THE APPELLANTS -- REBUTTAL

Mr. Arnett: I don't have time to answer all the misrepresentations and if not direct, implied, concerning the record.

The... Texas gets 25 percent of the migrant funds.

Texas gets far more than 25 percent of the migrant pupils, legal pupils in the state.

Unidentified Justice: Mr. Arnett, would you concede that there are children who were not legally admitted to the United States but which later obtain a status that would entitle them to remain as residents, and that the Texas statute would preclude those children from being in school tuition-free?

Mr. Arnett: Your Honor, I certainly would agree that they can gain the status at a later date.

When they gain that status, they will be entitled to go to school.

Furthermore--

Unidentified Justice: But the Texas statute as it is written applies to exclude those who are--

Mr. Arnett: --That has been construed to mean legally present.

The school districts construe that to mean, if they are legally living here.

And I might note that the example of the particular children involved, those children never went through the hearing process of the state board of education to determine their entitlement, notwithstanding any lack of documentation they may have if they were in the process of application.

Unidentified Justice: --Is this just a matter of application in the school districts, or do we have a Texas decision?

Mr. Arnett: We were proposing regulations on it at the time we were enjoined from--

Unidentified Justice: Are there any adopted now?

Mr. Arnett: --No, Your Honor, but they can be adopted very easily, as soon as we are not enjoined and it becomes meaningful.

I would like to address the point you asked about the innocent children, and I would like to point out that in Dandridge, in Lalli, in Matthews versus Lucas, all of those cases affected the right of children on the basis of the parents' conduct.

In fact, this case is much less reprehensible, if you want to use that term, than those, because here the parents' conduct is now.

The parents are free to effect the conduct in question at this time.

They were not free in Lalli once they were deceased.

They were not free once they were deceased in Matthews versus Lucas.

It is clear... and indeed, if you take the innocent children line of reasoning, all children are a suspect class or heightened scrutiny for purposes of residency, whether they be illegal aliens or not.

Our society is somewhat based on the control of parents over children, and that differentiates it from trying to control the acts of parents as to themselves with the illegitimacy through restriction on their children.

The other thing that has come up is domicile versus residency, and the reason that has been somewhat confused is, Texas does not require strict domicile to go to school.

We do not require an indefinite intent to remain.

We require sort of quasi-domicile, and I think that we call it residence under the statutes.

It has been interpreted by our courts, and there are several decisions on this point, that it is not as much as domicile, but it is more than simply staying overnight, you know.

Unidentified Justice: I take it your policy is that until you are documented or have some basis for being here legally, that no one can acquire either domicile or this quasi-residence.

Mr. Arnett: That is exactly right, and my answer to Justice O'Connor's question earlier that there was no state court decision on it, that is in the domicile area.

In the area of residency, both the legislature and the Texas Supreme Court by denying the writ in Hernandez and upholding the statute have made the decision that residency for school purposes cannot be illegal, it must be legal, and so to that extent I would say, yes, state law does make that determination.

I would also like to point out as to incentive, if it is not an incentive, why has Brownsville grown from 182 undocumented alien children one month after the order to over 1,300, 1,400 this year?

I would point out that the findings of the--

Unidentified Justice: But constitutional rights are individual rights and are not permitted to depend on intuition or anything else.

Mr. Arnett: --Your Honor, Vance versus Bradley says it is not the--

Unidentified Justice: Well, McKay versus Santa Fe and Topeka Railroad 40 or 50 years ago said just that.

Mr. Arnett: --I agree, Your Honor.

Unidentified Justice: And that is still the law.

It is an individual right.

Mr. Arnett: I would point out that Vance versus Bradley says it is not the office of findings of fact to make conclusions against the legislative judgment, and that is exactly what was done at the lower level here, and furthermore, all the evidence that they are referring to about it not being incentive have to do with adults.

It is clearly an incentive for children.

Unidentified Justice: General Arnett, I didn't understand one thing you said.

You said that as a matter of state construction of its own statutes, state law, that a person not lawfully here was not a resident within the meaning of the laws governing school attendance.

If that were so, why did they need this 1975 statute?

Mr. Arnett: Well, all I am saying is that the statute makes that determination from a legislative point of view, and that has been established by the court.

Unidentified Justice: You mean just the statute in issue here.

Mr. Arnett: Yes, Your Honor.

Unidentified Justice: Oh, I see.

Mr. Arnett: I think that is a legislative definition.

I think it clearly is.

Unidentified Justice: It intended... it was a reaction to the Attorney General's opinion, was it?

Mr. Arnett: I think it's pretty clear that it was.

Unidentified Justice: Yes.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.