Martinez v. Bynum - Oral Argument

ORAL ARGUMENT OF EDWARD J. TUDDENHAM, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Oralia Martinez against Raymon Bynum.

Mr. Tuddenham, I think you may proceed whenever you're ready.

Mr. Tuddenham: Mr. Chief Justice, and may it please the Court:

This case is in many respects a companion case to last term's decision in Plyler versus Doe.

It is another attempt by the state of Texas to exclude unwanted Mexican children from the schools of Texas, and to deter them from migrating to the state.

What the state does here is far less defensible than what it did in Plyler versus Doe.

The children that the state is depriving of an education in this case are, in fact, United States citizens.

Citizens whose parents are Mexican nationals.

But these citizen children have an absolute constitutional right to establish their homes in the United States.

And the mechanism used by the state to exclude these children from school is to define them as non-residents.

The statute at issue here states that a child who lives apart from his parents for the purpose of obtaining an education is a non-resident if he is moved apart from his parents in order to obtain an education.

Unidentified Justice: Mr. Tuddenham, where in your brief is that statute set out?

Mr. Tuddenham: It is set out... Your Honor, I believe it's on page 2 of the brief.

It's subsection (d), the section challenged here.

But of course, it's precisely children like Roberto Morales and other children whose parents are Mexican nationals who must move apart from their parents in order to obtain the education they need if they are to participate in American society and exercise their birthright, their American citizenship.

Unidentified Justice: Well certainly, the statute can serve some legitimate purposes, can't it?

I don't suppose that wealthy parents can live in a poor school district that doesn't do much in the way of taxing property and have a constitutional right to have their child live with a step-sister in a very wealthy school district.

Mr. Tuddenham: Well, there are several answers to that.

If the child is simply commuting from one district to another and, in fact, returns at night to live with its parents, then--

Unidentified Justice: No, I'm assuming that the parents don't want to pay the school taxes in the high taxing district, but they want their child to be educated there and they're perfectly willing to have the child take up legal residence with a step-sister.

Mr. Tuddenham: --If the child, in fact, moves and establishes a residence with a sister in another school district and residence is the criteria for admission to school, then I should think that that child would have the right to attend school.

But I would point out that this statute does more than that.

The problem with the example you're giving... and I think it is the essential problem of the case... is this notion that if a child has a choice between two districts, there's something somehow wrong with him choosing one district over another.

Well, setting that problem aside for the moment, that's not what this statute prohibits.

Unidentified Justice: But doesn't the state have a perfectly legitimate interest in seeing that what you say the statute doesn't prohibit doesn't happen?

Mr. Tuddenham: The state has an interest in protecting its schools from excessive problems of migration, but it can't do that by prohibiting migration.

And I think that the problem that you pose is really more in the minds of the school administrators than the evidence in this case would demonstrate.

In fact, several states such as New York, Pennsylvania, New Jersey and Connecticut, and I also believe Colorado, have statutes that would allow parents to do just what you have said in your example here.

Unidentified Justice: But the fact that New York and Pennsylvania might allow parents to do this doesn't mean that Texas, under the Constitution, has to allow it, does it?

Mr. Tuddenham: Well, I would argue that if the child has a right to travel and a right to establish his home in another district, then he can.

But--

Unidentified Justice: You would argue, then, that if I'm a parent and live in a very wealthy school district and my 14-year old child... rather, I'm a parent who lives in a poor district but I want my child to go to a district where there is a good deal better education because of a high tax rate but I don't want to move into that district because I don't want to pay the high tax rate, so I simply farm my child out to a step-sister in the high tax rate district, that the state can't prevent that under the Constitution, because a 14-year old child has a right to travel from one school district to another?

Mr. Tuddenham: --To establish a new home, yes.

But, Your Honor, understand that in this case, Texas doesn't prohibit what you're saying.

Unidentified Justice: Do you think the child has a right, independent of the parent, if the child is unemancipated, to establish his own residency independently--

Mr. Tuddenham: Perhaps, again, where there is a choice between school districts, there might be some grounds for limitation, although I think if there are going to be limitations on a child's constitutional rights as opposed to an adult's, it must have something intrinsic to do with the child, some disability of the child.

But the state of Texas has made clear that it does not care whether children move from one district to another to live with a sister, so long as they can come up with some other reason for doing it.

And--

Unidentified Justice: --What is the general test of residency for school purposes in Texas?

Mr. Tuddenham: --The only test for school residency in Texas is de facto residence.

There is no requirement of prior residence, there's no requirement of intent to remain.

All you have to do is be present in the district, and that goes--

Unidentified Justice: What do you cite for that?

Mr. Tuddenham: --Well, the statute itself simply refers to residence, but last year in Plyler versus Doe the state argued that... I believe the example was someone coming from Virginia for six months could bring their child and stay for six months with the fixed intention to return to Virginia, and during that six months they would be--

Unidentified Justice: Other than the arguments in Plyler.

Mr. Tuddenham: --There is also evidence in the record, Your Honor, in the school applications that were submitted as Plaintiff's Exhibit 8.

There are a number of examples there.

The one that comes to my mind right now is one of a mother who sent her child to live with a grandmother in south Texas for a few months.

There was some problem; the mother just couldn't take care of the child at that moment, but was going to come and take the child back to Houston in December after one semester.

That child was admitted as a resident.

Unidentified Justice: What do you say the state does prohibit that it can't?

Mr. Tuddenham: What it prohibits is... the state says that a child can establish residence apart from its parent or guardian for any reason it wants to.

So they have no problem with the capacity of the child to establish residence apart from its parent.

It simply then takes one class of those children and says you cannot establish residence apart from your parents because you've come for the purpose of obtaining an education.

And to go back to your question, Justice Rehnquist, the fact that the state may have a legitimate concern about children district-hopping, I believe is the way the respondents referred to it, this statute doesn't stop that.

If a parent has enough money to obtain a guardianship, or if he can concoct a reason other than the need for an education, then the child can transfer.

Unidentified Justice: Yes, but I suppose if district-hopping is what they want they may have a tough time coming up with a phony reason that passes muster.

Mr. Tuddenham: Well, the district court found that any reason would suffice; any reason other than the desire to obtain an education.

Unidentified Justice: But if, in fact, the reason is the desire to obtain an education, I suppose that whoever decides whether the reason is true or not would make some inquiry into that.

Mr. Tuddenham: Well, there is inquiry into what is your purpose for being here.

And if the purpose... very often, in moving from one district to another, from one state to another, that purpose may represent educational needs as desperate as Roberto Morales'.

What has happened here is Roberto Morales has no other school that he can attend.

He is not being precluded from choosing one district over another.

He--

Unidentified Justice: Counsel, may I ask you a question?

Are you making a facial attack on this statute, or as applied to a particular client?

Mr. Tuddenham: --Well, in the district court we amended our complaint to drop the claim that the statute is being discriminatorily applied.

Unidentified Justice: So you're not arguing that the statute has been applied discriminatorily, are you?

Mr. Tuddenham: That is correct.

But on its face,--

Unidentified Justice: And Judge Garza found as a fact that it was not being so applied, didn't he?

Mr. Tuddenham: --I believe his finding was that if you had any other reason for getting in, they would let you in.

There was no statistical evidence to show that--

Unidentified Justice: He didn't find any discriminatory enforcement, did he?

Mr. Tuddenham: --That was not presented to him.

That issue did not come up.

There was no analysis done of the school applications to show that children coming from Mexico were excluded more frequently than children coming from other states or--

Unidentified Justice: But on the face of the statute, it applies equally to children coming from Mexico as it would to children coming from any other school district in the state, wouldn't it?

Mr. Tuddenham: --Absolutely, it does.

But the legislative history makes clear that the purpose for this statute was to deter migration.

It was not to control inter-district transfers.

It was to deter migration from Mexico, to keep children whose parents cannot enter the country from coming here because they're citizens and obtaining an education.

Unidentified Justice: Counsel, I was going to ask exactly the same question, because I think the record for me is somewhat confusing as to whether you were making a facial or an as-applied challenge, and I take it your answer to Justice Powell is that now you're making a facial challenge.

Mr. Tuddenham: It is a facial challenge, but on its face--

Unidentified Justice: What do you do, then, about the boarding house situation?

Mr. Tuddenham: --Boarding home situation?

The state could deal with that if that is a problem.

The state could deal with that in any number of less restrictive ways.

Many states, for instance, make the reasonable assumption that who is providing the care and clothing for the child is... in other words, who's supporting the child... is a legitimate criteria to look at to determine the child's residence.

And that would be a far less broad definition, and it would take care of the boarding home problem because, of course, the boarding home would be a commercial operation receiving pay from the parents.

Unidentified Justice: Does the record show that this petitioner intends to stay in the United States after he's been educated?

Mr. Tuddenham: The record states that he intended to stay until he completed his high school education.

When we submitted that evidence, Roberto Morales was nine years old and didn't really know what he wanted to do.

Last week when I talked to him he said he wanted to grow up and be a doctor and live in McAllen.

Unidentified Justice: Well, this takes us right back to the question I think that was implicit in something that Justice O'Connor asked.

Who's boss here, the parents or the child?

Mr. Tuddenham: I think this has to be looked at... it's a family situation.

Obviously, when a child is nine, Roberto Morales may or may not have known what was in his best interest.

His parents, I think, recognized that since he was a United States citizen and he was going to live in the United States as an adult, he had to learn how to speak English.

And he couldn't wait until he was 18 and could make up his mind to move to the United States and learn English then, because by then it would be too late.

These people are indigent and they cannot simply move at age 18 and start adult education classes.

So his parents were the ones, I imagine, when he was nine who, as a family, made the sacrifice to send their child away so that his life would not be forever stigmatized by the fact that he did not learn what it was to be an American citizen.

Unidentified Justice: I suppose it's irrelevant, but how did he happen to be born in the United States?

Mr. Tuddenham: That is not in the record, although the way this comes up is the parents are either here temporarily... Mexican parents are either in Texas temporarily on visas or they're here illegally.

But when the child is born in the United States, he then becomes a U.S. citizen.

And that brings up an important comparison between this case and Plyler, because I think what's going on here, what was in the minds... or what the legislative history indicates... is that the reason these children are being excluded from school is the notion that somehow, they really aren't U.S. citizens.

That they were born here because their parents managed to get across the river, and for that reason, they can be deprived of the education that is made available to all other citizens of Texas.

Unidentified Justice: What would be your argument if the child was not a citizen.

Mr. Tuddenham: Well, if he were entering, say, on a visa, say, if the federal government had granted him a permanent residence visa--

Unidentified Justice: No, not permanent.

Suppose they just let him in to get an education.

Mr. Tuddenham: --Well, if he came in legally, under the federal immigration laws I should think that there would be a supremacy problem for the state then--

Unidentified Justice: Well, you'd be making the same argument, wouldn't you?

Mr. Tuddenham: --If he had entered legally I would be making the same argument.

Now, there would be the additional argument that if the federal government, in its exercise of its powers of immigration, had decided that it was all right for this child to enter the country, then the state could not burden that right by then saying well, you can come into the country, but if you've gotten permission to come in to go to school we're not going to let you in the school.

Unidentified Justice: So the fact that this child is a citizen is rather irrelevant, isn't it?

Mr. Tuddenham: Only that his right is not a supremacy right of immigration; it's that he is a citizen.

He has a right under the Constitution to enter this country and live here.

Unidentified Justice: Well, it's irrelevant to your argument.

I'm sure it's not irrelevant generally.

Mr. Tuddenham: Well, perhaps if he is entering illegally for the purpose of attending school, the state could draw a narrower statute to exclude those children.

Unidentified Justice: Under Plyler?

Mr. Tuddenham: Well, there is a footnote in Justice Powell's concurrence with respect to if the child is entering for the purpose of attending school, then you could make a pretty good logical argument that excluding him would be consistent with the federal policy of deterring immigration.

That is, if he's coming by himself because they're the only children being affected by this statute.

But his citizenship is what gives him the right to come into the country, and that right... what I'm arguing is that that right cannot be conditioned because the state doesn't approve of his reason for coming here.

Unidentified Justice: To what extent do you rely on a constitutional right to travel?

Mr. Tuddenham: It is our argument that this case should be reversed based on the same equal protection analysis utilized in Doe v. Plyler.

But here, this Court should apply strict scrutiny because it is his fundamental right to travel that is being burdened, in addition to the fact that he is being deprived of an education.

Unidentified Justice: So you must be taking the position that a child of three, four, five, six years of age has the same constitutional right to travel as an adult citizen.

Mr. Tuddenham: Obviously, children's rights, to a certain extent, are not co-extensive with an adult's rights.

But what I would submit here is that there is no reason shown in this record for limiting Roberto Morales' right to travel.

The state of Texas has already decided under its probate code that there is a responsible adult taking care of him.

His sister is perfectly okay with the state of Texas.

If he is moving from Louisiana or from Peru, if he comes and lives with his sister, the state of Texas thinks that's just fine, as long as he isn't coming for the purpose of attending school.

So there's nothing intrinsic about the fact that he is a child that argues that his right to travel should be--

Unidentified Justice: Texas doesn't object to the right to travel back to Mexico, does it?

Mr. Tuddenham: --No, it does not, Your Honor.

In fact, that's precisely what the state of Texas suggests.

They suggest that there is no deprivation of education here because Roberto Morales can go back to Texas.

And they recognize that if he does not have an education, he can't just sit in McAllen on the streets all day, although he did that for one year.

For one year he stayed in McAllen waiting to become eligible for school.

Even though with the strictest one-year residency requirements which were struck down in Shapiro and Dunn and in Maricopa County, he would have qualified as a resident after waiting that year.

But under this statute, he is still called a non-resident even after five and a half years of continual residence.

He is absolutely indistinguishable from any other resident in Texas, any other child living with a custodian, and the sole reason that he's... his motive.

Unidentified Justice: Do you think that the state has a legitimate interest in requiring children who are living apart from their parents to live with a legal guardian as a pre-condition to admission to public school?

Mr. Tuddenham: The state has a legitimate interest in assuring that the child lives with a responsible adult.

Absolutely.

But the state of Texas has determined that Roberto Morales' sister is a sufficiently responsible adult under the state laws.

Now, under--

Unidentified Justice: You think it would be valid for a state to say if the child is living apart from the parents, we require as a condition of going to school that the child be living with a legal guardian?

Mr. Tuddenham: --It would depend on their reason for requiring that.

If the reason for requiring a guardian--

Unidentified Justice: Well, what can we assume?

That the child might need medical care and might need other permission to be given for various activities and the school needs to be able to look to someone who is legally in a position to do those things.

Mr. Tuddenham: Absolutely a state has interest in doing that, but if the state law will allow a custodian to do all of those things as it does in Texas, then the guardian would not be needed for those purposes.

Justice Marshall: Does the record show, when this child was admitted, what did the sister sign on the application blank?

I assume that Texas has an admission card.

Mr. Tuddenham: No, there were no admission cards at the time that this child was--

Justice Marshall: --They have no records?

Mr. Tuddenham: The only records that were kept were kept by the order of the District Court and that was after Roberto Morales--

Justice Marshall: --Then what records does the school have as to who to call up if the child drops dead?

Mr. Tuddenham: Oh, the child is in school now, they have his sister, Oralia Martinez's name.

Justice Marshall: As what, guardian?

Mr. Tuddenham: As custodian.

Justice Marshall: Custodian.

Mr. Tuddenham: I think the way it's referred to in the statute is person having lawful control.

Unidentified Justice: --I'm not interested in the statute; I'm interested in this case.

Does this record show what position she has insofar as the school is concerned?

If she is a legal guardian she's one thing.

If she is a disinterested passerby, she's another thing.

Mr. Tuddenham: So far as the school is concerned she is not a disinterested passerby.

Unidentified Justice: Well, is that in the record?

Mr. Tuddenham: It is in the record that the state schools accept children who live with relatives, or friends even.

Unidentified Justice: Well, does it show that she signed as a relative, as a parent, as a substitute parent, or what?

Mr. Tuddenham: When a child applies to school... it's not in the record, but I imagine that they would get the name of the parent, or whoever the child is living with, and... but what I would show the Court is that it is clear under the statute and through the applications kept in the... as Plaintiff's Exhibit A... that the school districts do admit children if they are living with non-guardians; with relatives or friends.

And whatever the paperwork the school does to assure that they have the names of those people is done.

The district court found, as a finding of fact, that the sister was entitled to give medical permission and other kinds of permission for the child.

I know the school has her name now.

Unidentified Justice: May I ask you a question?

I understood you to say a moment ago that the child was in school now.

Is that right?

Mr. Tuddenham: That is correct.

He is--

Unidentified Justice: Is that pursuant to court order, or how does--

Mr. Tuddenham: --It's an injunction pending appeal.

Yes, Your Honor.

Unidentified Justice: --I had missed that in the papers.

Mr. Tuddenham: He was out of school for a year and then the injunction came and he was admitted.

Unidentified Justice: And the court of appeals left that injunction in force and has not ruled against you.

Mr. Tuddenham: That is correct.

Unidentified Justice: I see.

Counsel, you rely on the fundamental right to travel.

Does that mean that in the United States a child may pick any school district it wishes to pick, so long as it complies with the residence provisions of that school district, or has a constitutional right to go there, regardless of where his parents may live?

Mr. Tuddenham: In the first place, a child's right to travel is obviously limited by the parents' wishes.

Unidentified Justice: Well, perhaps not in this case, but there may be many similar cases.

Mr. Tuddenham: But I would suggest to the Court that that--

Unidentified Justice: Let's take my simple question.

Suppose a child lives very close to a state that has excellent schools.

I think Justice Rehnquist suggested this sort of problem.

He lives right close to the boundary line.

By going across, the child can attend schools of much superior quality.

You suggest he has an absolute right to go?

Mr. Tuddenham: --Well, let me answer that first by saying that is not necessarily the case before the Court here.

The case here is the child has no other choice.

Unidentified Justice: I know.

I'm going back to your statement.

Mr. Tuddenham: Okay.

But leaving that aside, if the parent and the custodian, whoever it is, and the child have made the decision that this is what is in the best interest of the child, to give up living with his parents, give up the day-to-day... the parents giving up control over the day-to-day upbringing of their child, then I would think that there would be a strong argument that the state would have to show a compelling interest to interfere with that choice.

However, that's not the case here.

Also, I would point out that this statute does not stop that in any way.

It only stops that for indigents.

If they can afford a guardianship, they can do it now, and the state of Texas doesn't care.

Unidentified Justice: But you have people here in your case who are perfectly willing... if they were willing to accept the child, the child could attend the schools.

But they elect not to do so.

Mr. Tuddenham: If they were willing to become guardians.

Unidentified Justice: Yes.

Mr. Tuddenham: Even if they were... there are problems with the guardianship requirement in Texas in that it could mean giving up permanent custody of the child, such that it would require a second proceeding to get custody of your child back.

But even so, the expenses involved in obtaining a guardianship are considerable for an indigent.

They may, in fact, be far greater than the cost of tuition.

Unidentified Justice: Do you have legal aid in this county?

Mr. Tuddenham: There is legal aid, Your Honor, but as the people are rejected under... in Plaintiff's Exhibit A, the 30 examples of people rejected, most of those people did not make it to our doors for help.

Unidentified Justice: Are you suggesting that the fundamental right to travel on which you rely applies only to indigents?

Mr. Tuddenham: No, it applies to all.

I'm simply pointing out that what your... the concern of the Court in terms of people choosing districts is going on every day right now for everyone but indigents.

And I don't think that recognizing the right of indigents to move to obtain an education is going to substantially affect the school districts in this country.

Unidentified Justice: I'm not sure I understand why this is limited to indigents.

Supposing you have an American family living in Mexico City, a very wealthy family, but they don't like the schools there and they want to send their wealthy child to this school in this school district and they have a friend who will take the child in.

The only way they can do that, as I understand it, is have a guardian appointed, and you said well, you can't do that without severing the parental relationship.

Mr. Tuddenham: They could also pay tuition.

Unidentified Justice: But supposing it doesn't happen to be a private school in this district.

They don't have to... say they don't want to pay tuition.

They want to go to this school.

They have a very good faculty and a good student body and a good football team.

They have a constitutional right to do it, don't they?

Mr. Tuddenham: Is this a United States citizen child?

Unidentified Justice: Yes.

And United States citizen parents who, for personal reasons, live in Paris or London or someplace.

Don't they have the same constitutional right that you're talking about here?

Mr. Tuddenham: Yes, they do.

And in fact, a child like--

Unidentified Justice: So indigency really has nothing to do with the case.

Mr. Tuddenham: --Well, the only reason that indigency comes up is that those parents can do that right now by paying the minimal amount of tuition--

Unidentified Justice: But they say they don't want.

They don't want to.

They'd rather use their money for something else.

Mr. Tuddenham: --If they would rather stand on their constitutional right, I suppose they could.

Unidentified Justice: You would represent them?

Mr. Tuddenham: No, they wouldn't be eligible.

Unidentified Justice: But when you said constitutional right, their constitutional right to travel that I had put to you before?

Mr. Tuddenham: That's right.

The constitutional right to travel; travel in the sense of move and to create a home, to live and abide in that place.

Establish your home there.

Unidentified Justice: Now, if this Court should decide that an infant child has no constitutional right to travel, does that wash your case out?

Mr. Tuddenham: No, I don't believe so because still, under Doe v. Plyler, this child is being absolutely deprived of an education in a place where he lives.

The state of Texas can't deport him from McAllen.

They might exclude him from school, but they cannot deport him.

He's a citizen.

And under the laws of Texas he can live with his sister and continue to live there with his sister.

Unidentified Justice: But as a constitutional matter, could not this particular... could not Texas require that if any child is to live separate and apart from his parents, he must have a legal guardian appointed?

As a constitutional matter, could they impose--

Mr. Tuddenham: It would depend on their reason for doing it.

If the sole reason for doing that was to determine--

Unidentified Justice: --The reason that Justice O'Connor referred to, they want to have someone who is legally responsible for decisionmaking on behalf of the child.

Mr. Tuddenham: --If that were the reason I should think that would be constitutional.

But Texas doesn't need a guardian to do that.

Texas has decided that the custodian is sufficient for that purpose.

Unidentified Justice: Well, it's interesting, though, that you have stipulated in this case that none of these children live with his or her parents or a legal guardian, or a person having lawful control of him or her, on the order of the court.

Mr. Tuddenham: By order of the court.

Unidentified Justice: That none of them has a parent, legal guardian or other person having lawful control of them under an order of court, living within the school district.

Mr. Tuddenham: That's the statutory language, Your Honor.

There is a distinction made between a person having lawful control, which is a sister, a custodian... and that's accepted by the state of Texas... and a person having lawful control by order of court.

There is no such beast under the laws of Texas.

That's a guardian.

That's just the statutory language.

He is living with a person who has complete legal authority over him, under the laws of Texas.

There is no question about that.

The only reason he's being excluded from school--

Unidentified Justice: Not if... not contrary to the wishes of the parents.

Mr. Tuddenham: --If it were... that's right, that would be a different case.

But that's not this case.

The parents here want him to be able to obtain an education.

Unidentified Justice: Do you think your statement is consistent with the stipulation of fact that Justice White just read to you?

Mr. Tuddenham: Absolutely.

The court order... the person having lawful control under order of court is the statutory language to distinguish that from a person who simply has lawful control.

If you're with someone under lawful control by order of court, then you can go to school even if you have the prohibited motive.

If you're simply living with a sister, whom the state recognizes has lawful control, then you can't go to school if you have the prohibited motive.

I'll reserve the rest of my time for rebuttal.

Thank you.

Chief Justice Burger: Mr. Arnett.

ORAL ARGUMENT OF RICHARD L. ARNETT, Esq. ON BEHALF OF THE RESPONDENTS

Mr. Arnett: Mr. Chief Justice, and may it please the Court:

I think first we probably ought to straighten out the history of this provision.

It was codified in 1977; however, this is a rule of Texas law that dates back at least to 1905.

It's a rule of American law that dates back at least to 1851 in what was apparently the first school residence case in the nation.

It was introduced into jurisprudence by the New Hampshire Supreme Court at that time.

In 1905, the Texas attorney general's opinion expressly relied on this rule, stating that the child was not entitled to go to school in a little town called Rockdale in central Texas if the main purpose of the child being there was to obtain an education in that district, and this child did not live with parents or guardians.

He equated the main purpose of being there for an education with an ostensible residence as opposed to substantial residence.

Just to show the dissimilarity of this rule of law with the rule of law at issue in Plyler versus Doe, some 15 years later while this rule was still in effect in Texas, the Texas attorney general ruled that they also had to admit any illegal aliens in the school.

It didn't matter... and you'll find that in the record of the Plyler case, reference to that 1920 decision in the 1975 opinion of the attorney general.

In 1973, this question recurred... the question in this instant case... recurred several times, right on up until 1973 where the attorney general reviewed all the decision up to date and reiterated that the test for residence in Texas to go to school is not domicile, it's not an intent to remain permanently, it's what is termed a bona fide residence, and a bona fide residence can be acquired apart from a parent or guardian if your purpose for residing in that district and being present in that district is not for the primary purpose of going to school.

And Justice O'Connor, that is the Texas test of residency and has been now for 77 years at least.

For school purposes.

Unidentified Justice: By case law?

Mr. Arnett: By administrative interpretation.

These were advice from the attorney general to the Texas... to the education, to the state agency, as to what children were required to be admitted by the various local school districts.

Unidentified Justice: Is it a de facto residency?

Mr. Arnett: It's not simply de facto.

It is what is termed a bona fide residency, and you see that occurring throughout the opinions of this court as well.

Unidentified Justice: But can you be a bona fide resident for six months for purposes of getting a free public education?

Somebody who goes temporarily to Texas?

Mr. Arnett: Not if your primary purpose is to obtain an education.

But if your primary purpose happens to be that you need to be there for some other reason,... let's say health; you need to go down to Texas for treatment for six months... then yes, you would be admitted to school.

And it has been that way in Texas, as I say, for 77 years.

This has been advice to the state superintendent of education at that time, back in 1905.

This is also stated by the Court of Civil Appeals in the DeLeon case which also preceded this codification.

And that DeLeon case, also, in that case, the Court of Civil Appeals for Corpus Christi said that that was really what they meant to say in Gamboa as well, which Gamboa has some dicta that tends to go the other way.

Unidentified Justice: What if parents decide that they like the public schools in Corpus Christi, Texas and they decide to move from New Mexico to Corpus Christi, Texas so their children can attend the public schools there, and for no other purpose.

Is that all right?

Mr. Arnett: Yes, Your Honor, that is all right.

Unidentified Justice: Because they're with their parents.

Mr. Arnett: Yes, Your Honor, because when their parents move into that district as a family unit on another situation where a child resides with the guardian... and the reason we have a guardianship provision is some children need to have guardians.

Application for guardianship in Texas has to specify the necessity for a guardian's appointment, so it's not at all clear that the statute can be frustrated in the method contemplated and suggested by the petitioner.

But getting back to your question, you have a Shapiro type of case there.

You have a family relocating for all purposes.

Now, their primary purpose may be to change school districts, but on the other hand,--

Unidentified Justice: Under my assumption, that is their only reason.

Mr. Arnett: --Okay.

But at the same time, they have joined the polity of that district, for 100 percent of all purposes.

They can vote there, they are going to live there, they're presumably going to work there.

Unidentified Justice: They're going to pay the taxes, too.

Mr. Arnett: They're going to pay taxes there, their work is going to support the local economy there.

They as a family unit reside in Corpus Christi, whatever their reasons are.

The parents will be participating in the local school district or certainly will have the right to, will be voting for the school board.

And to that extent, that's fully consistent with our concept of democracy.

It doesn't really matter why someone as a family unit moves there.

Children are different.

Unidentified Justice: What if the family from New Mexico doesn't want to move into Texas, but they want to send their child down there, and they say what's your tuition, and you tell them and they say, we'll pay it.

Mr. Arnett: That's a local option matter.

School districts are not required to allow anyone in the school.

Unidentified Justice: Well, do some districts permit that?

Mr. Arnett: I think probably most districts do it.

Unidentified Justice: All right.

If you can pay a tuition.

Mr. Arnett: That's right.

Unidentified Justice: And they would be the only people who would be paying a tuition; otherwise, it's free, isn't it?

Mr. Arnett: Not necessarily.

There can be transfers from other districts where they don't even reside... don't even live in that district but their parents--

Unidentified Justice: They commute.

Mr. Arnett: --They commute.

And districts can take them under Texas law, subject to a review by the agency to insure that there is no intentional evasion of a desegregation order.

And I would like to throw that in here, because if you want to know what this case will really do in Texas.

You will have districts... you will have children hopping all over the state to avoid busing orders.

You know, for example, I--

Unidentified Justice: You mean if you lose the case.

Mr. Arnett: --If we lose the case, that's right.

And--

Unidentified Justice: You mean we've got to decide busing again?

[Laughter]

Mr. Arnett: --No, sir, we don't have to decide whether... the propriety of it, but just where a federal court has ordered it--

Unidentified Justice: Did you ever heard of a red herring?

Mr. Arnett: --Well, Your Honor, I have three sisters that have kids in different school districts in Texas.

All three of those districts bus children.

My district does not.

Now, I think it's folly to consider that--

Unidentified Justice: But busing is not here, is it?

Mr. Arnett: --Busing is in many Texas school districts, and--

Unidentified Justice: Is busing in this case?

Mr. Arnett: --Impliedly, it is, Your Honor, because it is an incentive to change school districts.

Unidentified Justice: Impliedly, guns are too, aren't they?

You can imply anything.

Mr. Arnett: It certainly will be one of the common reasons that would be utilized and would motivate people to change school districts on the part of their children.

There'd be other reasons.

If they like the athletic program.

Unidentified Justice: Did this child change because of busing?

Did anybody in this district change because of busing?

Mr. Arnett: You'll find nothing in the record to support many of the statements that have been made up here, and there's certainly nothing in the record to answer your question with.

There's nothing in the record to indicate that this child won't get an education or wasn't getting an education before he came across the border.

When we raised that in our reply brief, they replied by saying well, but he can't learn English.

So I assume that this enhanced scrutiny that goes with the right to an education is now going to go forward to the right to learn English.

Is it going to go forward to the right to take Calculus 2 in another district?

I mean, there must be a stopping point somewhere, and--

Unidentified Justice: Well, I suppose Texas could adopt a residency requirement for public school purposes that would require residency in the normal sense of going with an intent to remain indefinitely.

Right?

I mean, isn't that possible?

Mr. Arnett: --It would be possible.

We don't think that's very wise because that would cut an awful lot of children out of school who really need to be there.

Unidentified Justice: Isn't that what most states do?

Mr. Arnett: No, Your Honor, it's not what most states do.

Most states either go a parent or guardian residence restriction, or parent or guardian along with the Texas system of allowing custodial relationships as long as it's not for the purpose of going to school.

In this regard, I'd like to point out--

Unidentified Justice: Let me just ask you one more question in response to your response to Justice O'Connor.

I suppose if a person teaches in college, he may get a visiting professorship for a year and maybe wants to move into your district with his children.

You have a college there where he would be teaching for a year.

Now, if there were a domicile requirement of intent to remain indefinitely, he couldn't meet that, and yet he would certainly be a bona fide resident, I suppose, in terms of your statute, for a year, wouldn't he?

Mr. Arnett: --That's right.

He wouldn't have any problems.

In fact, our statute is... as we believe, it's the wisest type of statute you can have because it lets children go to school where they need to be, but doesn't create state incentives to send them different places.

Otherwise, you do.

Now, very, very few states in this nation... indeed, I haven't found a single case in my research where they use the wide-open, temporary de facto rule.

And I believe that you will have to go to a rule like that, as a matter of federal constitutional law for all 50 states in order to strike the Texas statute.

Because certainly, if the parents or guardians-only laws, which are at issue in several other states, are constitutional, then Texas's more liberal law,... or it would seem certainly would be... or at least it would take care of the right to travel question.

If the child doesn't have a right... if the parents don't have a right to send the child, the child doesn't have a right to go, for example, in one of these states that restricts it to parents or guardians only, to another district other than where his parents or guardian resides, then that fairly well ends the right to travel question.

It ends any inquiry concerning the first classification in this statute, and that is custodians versus guardians or parents.

The second classification in this statute deals with the purpose for the residence.

Now, it would seem that when you are adopting a more progressive, liberal approach than you're required to, that absent a suspect classification... and I don't believe there are any cases in this Court to indicate that the test of purpose would be suspect... that should only be reviewed under a rational basis standard.

And I believe that we have... well, in fact, the court of appeals said we had a compelling state interest in this test.

And certainly, we have vastly more than a rational basis to try to prevent students from jumping all over the state from district to district, or students coming in across state lines for only the reason of going to school without their parents and without a relocation of the family unit and participation in the democratic process in Texas.

Unidentified Justice: Is the amount of the tuition in the record, that you would have to pay if--

Mr. Arnett: This child is paying tuition, by the way.

This idea of an injunction pending appeal is truly a red herring.

The child is attending school because they posted a bond to cover his tuition.

Unidentified Justice: --So what is the tuition?

Mr. Arnett: The bond they posted was $1244.

I don't know if the record expressly states what the tuition is.

Normally, it's around $1000 in Texas school districts.

That's about what they would get from the state, although I think McAllen probably--

Unidentified Justice: So this rule really does have an incidence on people who can't pay the tuition.

Mr. Arnett: --If the district... but that's not the statute.

Unidentified Justice: You can move into the district for an education anytime you want to pay for it.

Mr. Arnett: Let me differentiate between the district's policy of accepting children with a tuition, and the state statute which denies state funding and also, does not require the districts to accept children under these circumstances.

The state's statutes, I believe, would not be in question because of the district's particular policy of whether or not they pay tuition.

Unidentified Justice: I know.

But this district's policy is to accept tuition.

This statute is being administered in this district on the basis that you may come here solely for an education if you can pay the tuition.

Mr. Arnett: That is undoubtedly correct, Your Honor.

This is also a case where the plaintiffs amended their pleadings to drop any allegations concerning the merit of the statute's application in McAllen, and the attack is on the statute on its face.

And the statute on its face does not say a word about tuition.

That was my point.

I would question what interest would support any state statute, even requiring residency, even requiring this de facto residency.

What interest would a school district have from having a child come in every day and go to school?

What interest would the state have in preventing that, other than the interests assure... that are underneath and underlie 21.031(d)?

I believe it's entirely the same interests.

The interests are that the child is part of a family unit, it is part of the democratic unit of that locale and are participants in the economy and in the political process, if they're citizens, for example, and all of the normal indicia and all the normal attributes of participating in a democratic system.

It's also obviously, to prevent people from jumping around the state for whatever reasons.

It could be because there's a football powerhouse and this fellow wants to get a scholarship at Notre Dame, so he wants to go play for this particular coach that has connections at Notre Dame.

That undoubtedly will arise.

There's certainly ample basis under the statute for the Texas statute, and indeed, the approach--

Unidentified Justice: May I interrupt you for kind of a general question?

Your opponent has said there are difficulties about getting a guardianship, and if you have a guardianship even for terminating it.

Is it expensive, and is it as much of a problem as your opponent indicates?

Do you accept his representations about that?

Mr. Arnett: --I think it would be fair to say that every child in McAllen could have a guardian appointed for him with the amount of money Legal Aid spent bringing this case up to the Supreme Court.

Unidentified Justice: Well, yes, but this is not a typical--

Mr. Arnett: It is not exorbitant.

We have pauper zones in Texas, we have legal services available.

It is not difficult.

Unidentified Justice: --But is there a procedure for having a guardian appointed for an indigent?

Mr. Arnett: Well, once again, our statutes require that an application for guardianship show the necessity for the appointment of a guardian.

Unidentified Justice: Supposing in this very case the sister came in and said she wanted to be appointed the guardian so the child could go to school.

Mr. Arnett: Well, according to the plaintiffs, in one case out of Brownsville, it was refused on that basis.

That was not deemed to be a sufficient reason.

And there are cases from other states where it's been refused also on that basis because it's an intentional frustration of the intent of the residency statute.

And--

Unidentified Justice: So we should take this case on the assumption that this child could not have obtained a guardianship.

Of course, I realize it's not an as-applied case.

Mr. Arnett: --No, couldn't do that because--

Unidentified Justice: We must take the case on the assumption that there are a significant number of children who could not get guardianships in Texas but who want to live with their sisters or some similar custodian.

Mr. Arnett: --For the purpose of going to school?

I don't even know if you can be safe in that.

I'm just saying there's been one case where a probate court refused it.

There are no appellate cases on the subject as to whether this would be deemed sufficient reason for appointment of a guardian.

So that's really an open question under Texas law.

I would argue, if I were, in fact, in state court on the question and representing a school district, I would argue that the obvious intent of the legislature is that you don't frustrate the requirements of the residence statute by letting guardians be appointed when there's no necessity.

And the only reason they want a guardian is so they can go to school.

Unidentified Justice: Does the custodian have the same decisionmaking authority as a guardian would?

Mr. Arnett: No, Your Honor, he doesn't.

The guardian's powers are co-extensive to what we call managing conservator, which are co-extensive with the parent.

A custodian has a few narrowly-specified powers granted to him in the statute more out of necessity than anything else.

He has the power to consent for medical treatment, for example, and that's obviously a necessity.

I don't really think that the ability of the custodian to consent is a major issue in this case.

I don't really believe that's one of the major underpinnings of the statute... whether or not the child is with a responsible adult, and I don't think that will be the major underpinnings in any state residency statute because they're all apt to allow the same type of system.

Unidentified Justice: It would seem to me you might have a problem if an American citizen says I want to live in this county for whatever reason, I have a right to do that, and I would like to have a guardian appointed who can make decisions for me because I'm only 12 years old or 11 years old.

And Texas might say well, we won't do that because a consequence of that might be then you might get to go to school.

Is that your position?

Mr. Arnett: Now, I think if he needs a guardian appointed for him to exercise his rights--

Unidentified Justice: Just because he's 12 years old and that's where he wants to live.

Mr. Arnett: --And to exercise his rights.

Then he undoubtedly will get a guardian appointed.

We even have a provision for out-of-state residents to have a guardian appointed where they have property in the state and some reason for it.

So if he just needs a guardian because his parents are back in Mexico and he seeks a guardian in order to have someone to represent him contractually, et cetera in the state, undoubtedly he'd be able to get one appointed.

Unidentified Justice: Even though the only reason he's there is he hopes after this guardianship has been appointed, he'd like to go to school there.

Mr. Arnett: If they're as clever as you are, they're going to beat the system.

[Laughter]

Unidentified Justice: It doesn't take... you're not very clever to figure that one out.

Mr. Arnett: Well, I just point out that if the guardian... if the probate court was satisfied that the only purpose for the appointment of a guardian was to establish school residency, I can't promise this Court that a guardianship would be granted.

Now, if he has some other legitimate reasons, then it's highly unlikely it wouldn't be granted.

It's much the same as Judge Garza and Judge Case and both district judges that reviewed the facts in this case and reviewed the reports filed by the district said, that the way the district applies this, although it's not before the Court, is quite liberal.

And if they can find another reason for the child to be here other than to take advantage of school, they'd let him in.

I think the same type of thing is going to--

Unidentified Justice: I must confess I have a lot of difficulty understanding a facial attack on a statute brought by a litigant, and we don't care how the statute applies to the particular litigant.

It's a very puzzling constitutional posture for a case of this kind, for me.

Maybe I just have a problem that others don't have.

Mr. Arnett: --Well, in terms of the way the statute applies to this particular litigant even, their argument could only be that the state has a constitutional duty to discriminate in his favor, because it seems to me beyond doubt that Texas can avoid the problems, both short term and long term, in terms of their effect on school districts and their control, from students hopping around different parts of the state, from students going from Dallas out to the suburbs, from students going from Houston to Austin even.

And from students going from Louisiana into Texas.

Although that's interstate travel, it's certainly not the same type of interstate travel this Court was dealing with in Shapiro and Gaddis, which involved a bona fide change in residence on the part of a family.

I don't think it's debatable.

Unidentified Justice: In Texas, do you have any problems from students from any other state other than the government of Mexico?

In Texas.

Mr. Arnett: No, there's nothing in the record.

Unidentified Justice: Isn't that your only problem?

That's what they told us in this other case.

Mr. Arnett: Well, we talked... that's the only place where we've got illegal aliens from, Your Honor.

But in terms of the potential for students coming in, I think you'll find East Texas Guidance Center versus Brockett deals with students from Louisiana.

I think that you'll find that--

Unidentified Justice: How many would that encompass?

Mr. Arnett: --That was a particular child care institution there.

Unidentified Justice: That's A-1, where you have hundreds and thousands of Mexicans, right?

Mr. Arnett: Well, the testimony of the superintendents in this case was that there will be thousands come in from interstate or international.

They didn't differentiate.

As to the numbers, there's nothing in the record, Your Honor, to support a conclusion as to what the major effect of this statute is.

Unidentified Justice: And there's nothing in the record on hopping, either, is there?

Mr. Arnett: There's certainly plenty in the case law on that.

Unidentified Justice: But there's nothing in this case.

Mr. Arnett: No, Your Honor, but I would indicate that--

Unidentified Justice: And this petitioner didn't hop to but one place.

He only made one hop.

Mr. Arnett: --Well, I imagine the other ones would only make one hop, too.

Unidentified Justice: Mr. Arnett, you and Justice Marshall were talking about moving from Mexico to Texas or from state to state, but this statute applies to moving from district to district, does it not?

Mr. Arnett: Yes, Your Honor.

Strictly speaking, the statute does not relate to interstate travel at all; it relates to inter-district travel or coming in... or actually, it doesn't relate to travel at all.

It relates to the reason for your presence in a district.

Now, you may have been in that district since you were born, you may have come from a neighboring district, you may have come from Louisiana, from Mexico or from Peru.

Unidentified Justice: Do states in remote areas so far as Mexico is concerned have similar laws?

What about North Dakota?

Mr. Arnett: Well, for example, New Hampshire has the same law.

North Dakota I'd have to check in my brief and see which one they have.

Unidentified Justice: They have the same law for what purpose?

To keep Mexicans out?

Mr. Arnett: Obviously not.

Obviously, in 1851 when New Hampshire Supreme Court set this rule, it was to preserve school districts, and to prevent--

Unidentified Justice: Do you deny that this one was to keep Mexicans out?

Mr. Arnett: --Yes, Your Honor, I deny that.

Unidentified Justice: Give me what proof you have.

Mr. Arnett: Because it's been a doctrine in Texas law since 1903.

Unidentified Justice: And there were no Mexicans in 1903?

[Laughter]

Mr. Arnett: And the case came up in 1905... this was at a time that, you have to remember, that the state also educated any Mexicans that came in and it had no rules against educating illegal aliens.

So on that basis, I think I'm fairly sound in saying that it was not aimed at them.

The attorney general's opinion concerning Rockdale makes no mention in 1905... apparently, it was farmers.

Now, it does not make a mention as to the race of the children involved.

Unidentified Justice: I thought we had a district court finding in this case on the purpose.

Mr. Arnett: You have a district court finding that one purpose of the statute was to impede people coming in from Mexico to go to school.

Unidentified Justice: Don't we have to accept that?

Mr. Arnett: Well, I think you can look at the factual underpinnings of it because the district court fell victim to what this Court rejected in O'Brien, United States versus O'Brien.

The district court used the expression of one, single legislator who was not even a sponsor of this bill.

And when you read what he said, coupled with the language of the statute, at most his intention was to do what the statute does, and that is keep people from coming in--

Unidentified Justice: But in the posture that this case is here, don't we have to accept that finding?

Mr. Arnett: --No, Your Honor, I don't believe you do.

And also, I would point out that the district court made another finding, that the main purpose was to provide a statutory guideline of residency.

That was the district court's first finding on it, and it said a purpose, one purpose, was--

Now, if you look at the factual underpinnings of that in order to understand what the district court was saying, what it was really saying is that we had one legislator down there in Austin who said this.

That's the evidence.

The other legislator whose testimony is in the record was the sponsor and said primarily, it was to codify the attorney general opinions.

Unidentified Justice: The district court also mentioned, as I recall, counsel, the state's interest in the tax burden, so that children couldn't choose districts without having parents or guardians who contributed to that... who helped relieve the tax burden.

District court mentioned that, didn't it?

Mr. Arnett: The district court has a finding that children like this do not generally pay taxes, and the cost of their education will have to be borne by the bona fide residents of that district.

Unidentified Justice: And the district court also mentioned the importance of school boards being able to plan from year to year as to pupil-teacher ratio, load, et cetera, didn't it?

Mr. Arnett: He talked about overcrowding, he talked about the inter-district transfers and how they would disrupt the educational system.

He concluded with a finding that in all likelihood, if this statute did not exist it would be detrimental to the educational standards of the school districts of Texas.

And that finding was affirmed by the Fifth Circuit.

Now, I would like to get back to this motivational approach because it seems to me that that is a rather interesting point in this case.

You don't have a disparate impact.

This statute applies equally to everyone.

It in no way has a different effect on one group of persons than any other group of persons.

As such, it seems to us that United States versus O'Brien, Palmer versus Thompson, Brown versus Califano which was quoted in the proffered case last term, all say that you don't look at motive.

But in any event, the motive factually, the district court found the dominant motive was to codify or to provide a statutory definition of residence.

Previous to that, it had merely been common law as indicated by the attorney general opinions in the DeLeon court.

Now, we have used in Texas precisely the standard this Court set forth in Vlandis versus Kline for determining bona fide residency.

This purpose test was also used in Sosna versus Iowa, it is used in Starns which was affirmed by this Court, it was set forth in various decisions of the lower courts on the same issues such as the Spriggs case and the Zoben case.

We have used what we believe to be the best system.

We don't see where Colorado's system is as good.

They require the child to intend to reside there indefinitely.

Well, he may not need to reside there indefinitely for his health reasons or whatever brought him there.

This also, I would point out, allows us to have a workable system for the education of handicapped children.

Under a de facto residency approach, which analytically is the only thing one could go to to strike this statute, and a temporary de facto at that, if Houston were to place a child in Austin at a residential facility for the purposes of an education, he's paying $100,000 a year, upon his arrival to Austin he'll become a resident of Austin and Austin will become responsible for that $100,000 a year.

It doesn't make a lot of sense.

By the same token,... and that is one reason we have the disqualification concerning educational purposes, or that's one end that it serves.

On the other side of the coin, we have things called ICFMRs, Intermediate Care Facilities for the Mentally Retarded, where parents place children; they've never taken the kid to the home district.

The home district's never had a shot to see if they could provide an appropriate education for this kid, but the kid may be 500 miles across the state in an ICFMR.

By regulation, we have required the district where that ICFMR is located to provide an education to those children, so long as they are not there for an education, primarily for educational reasons.

Otherwise, we would have a very difficult time delivering services to those children because the district of responsibility would be 500 miles away and never have seen the child.

Our system works very well in Texas for a lot of different reasons.

It works very well in a number of other areas for a lot of different reasons.

It's the common law of this country in school residency matters.

And we also believe it should be upheld as constitutional.

Chief Justice Burger: You have two minutes remaining, Mr. Tuddenham.

ORAL ARGUMENT OF EDWARD J. TUDDENHAM, Esq. ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Tuddenham: Thank you.

Just to quickly, with respect to the facial challenge and the fact that this is a county residence statute, this complaint in this case was patterned on Maricopa County versus Memorial Hospital which was also a facial challenge to a county residence statute struck down on international... because it had an effect on interstate travel.

In the final minute, I would just like to reiterate to this Court that--

Unidentified Justice: Let me just ask one other question about that, if I may.

Is it correct, then, that the case as it comes to us is exactly the same as the hypothetical involving the wealthy family abroad who want their child to go the school without paying tuition?

Mr. Tuddenham: --The plaintiff before the Court is a child from Mexico; he is the... this is not a class action.

It's--

Unidentified Justice: No, but the issue... if we're not concerned with the impact on the particular litigant, is the constitutional issue is the same as the hypothetical case I posed?

Mr. Tuddenham: --I do not believe so.

The issue before the Court is the facial impact of this statute on Roberto Morales.

That's how it was litigated in the district court, and that's how it was defended.

[Laughter]

Unidentified Justice: I don't understand that.

That's hardly a facial attack.

Mr. Tuddenham: Well, that was the way it was litigated in the district court--

Unidentified Justice: We could give you all the relief you wanted by just saying that insofar as this statute impacts on... has an impact on your client, it's unconstitutional.

And you would... is that all you want?

Mr. Tuddenham: Insofar as it prevents children who have no other choice and who need an education, this is their only choice for an education in the United States--

Unidentified Justice: But this record--

--That would include Justice Stevens' example.

Yes, and I don't think this record shows... you correct me if I'm wrong... that this particular child could not have had a guardian appointed for him.

Mr. Tuddenham: --The record shows that he is indigent, and a guardian--

Unidentified Justice: Well, the record doesn't show that he ever applied for a guardianship, or had his sister apply for a guardianship and was turned down.

Mr. Tuddenham: --His parents were afraid of giving up permanent custody of their children.

Unidentified Justice: Well, the record doesn't show that she couldn't have tried that route, does it?

Mr. Tuddenham: But she is indigent and it requires a bond of up to $1000 to be posted.

Unidentified Justice: Well, they apparently posted a bond to go to school, according to your opponent.

Mr. Tuddenham: The bond was--

Unidentified Justice: We don't know the facts as to the particular litigant, is what I am saying.

Mr. Tuddenham: --Excuse me?

Unidentified Justice: We don't know the impossibility of this litigant attending this school by some other means because you haven't tried out all the aspects of the impact of the statute on this litigant.

Mr. Tuddenham: But it is clear that this statute is and was designed to create an expanding class of American citizens, whose parents are in Mexico who have no other place they can go to school, but who have a right even now as citizens to live in the United States.

So, does he live here and not go to school?

Unidentified Justice: Well, they can go to school in Mexico.

You just say they won't get the education they think they'll get in the United States.

Mr. Tuddenham: If I may respond to that, Justice White, just last year Mr. Arnett, in Plyler versus Doe, told this Court that there are over four and a half million children of school age in Mexico who are not attending school because of inadequate facilities in Mexico.

So there is no guarantee that this child can get any education--

Unidentified Justice: Does that mean that Texas should support them?

Mr. Tuddenham: --Not the children of Mexico, but this child as a United States citizen.

He has a right to establish a home in the United States today.

He can't be deported by the state of Texas.

He has a right to live there.

Thank you.

Chief Justice Burger: Thank you, gentlemen, the case is submitted.