Cases by Issue - Access to Public Education

Toll v. Moreno - Oral Argument

Fri, 09 Jan 2009 14:47:53 +0000

Case:

Toll v. Moreno

Media File:

80-2178_19820302-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF ROBERT A. ZARNOCH, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments next in Toll against Moreno.

Mr. Zarnoch, I think you may proceed when you are ready.

Mr. Zarnoch: Mr. Chief Justice, and may it please the Court, this is the second time this case has been here, the second time this Court has been called upon to examine the constitutionality of the University of Maryland's policy of denying in-state benefits to non-immigrant aliens.

The last time this case was here, it was complicated by an unresolved issue of state law and of concerns over the University's basis for treating non-immigrant aliens differently, issues that have caused this case to be certified, the question to be certified to the court of appeals of Maryland, and ultimately the case to be remanded back down to the district court.

These questions are now behind us.

This time around, however, the case raises additional and perhaps more significant constitutional questions evidenced, I think, by the fact that for the first time in this Court's history, all 50 states are participating here as amici and unified behind a single position, namely, urging the reversal of the Fourth Circuit's decision and overruling of Vlandis versus Kline.

Of the four constitutional questions raised in this case, the foremost issue, we think, is the question of whether the University's policy denies equal protection to non-immigrant aliens.

We think that if we prevail on this ground, many of the other issues in the case could quickly fall by the wayside.

Now, the equal protection issue here, we think, calls into play the very rationale for labeling certain alien classifications suspect and for according them strict scrutiny, a rationale we say that focuses in on the burdens permanent resident aliens share with citizens, and which non-immigrant aliens as a class conspicuously lack.

Although resident aliens may be saddled with disabilities, we suggest that non-immigrant aliens, on the other hand, are blessed with privilege.

At the outset, it is important to understand what is at stake here, how many persons are affected by the University's policy, and the nature of the disadvantaged class.

First, all we are talking about here is the tuition differential.

At one time, the University did have a disparate charge with respect to certain fees, for example, dorm fees.

That is no longer the policy of the University.

Only in tuition is there a difference with respect to in-state and out-of-state students.

Secondly, we are not talking about scholarships, state scholarships, that is.

The state of Maryland does not deny state scholarships to non-immigrant aliens as a class, assuming they can show financial need.

It is also important to note how many people are affected by the University's policy.

According to the record in this case, during the years 1978 and 1979, there were anywhere from 1,000 to 1,200 permanent resident aliens attending the University of Maryland.

Unidentified Justice: Annually?

Mr. Zarnoch: Annually.

And during that period, approximately 95 percent of those permanent resident aliens qualified for the in-state... were classified in-state and received the benefit.

On the other hand, there are half as many non-immigrant aliens, as few as 497, I believe, in 1978.

Unidentified Justice: In what category?

Mr. Zarnoch: These are non-immigrant aliens who are classified as out-of-state.

In terms of potential student population, the figures... the ratio is even greater.

There are seven times as many permanent resident aliens in Maryland as there are non-immigrants.

Unidentified Justice: Well, the 497 non-resident aliens, fill that in a little bit.

Who are the--

Mr. Zarnoch: Exactly.

Unidentified Justice: --What is that group composed of?

Mr. Zarnoch: Well, the class... well, it is a much smaller... it is a much smaller universe than the class of non-immigrants generally.

The class of non-immigrants generally consists of diplomats, foreign visitors, foreign students, and employees of international organizations and their families, and--

Unidentified Justice: Well, do all of them have the non-immigrant G-4 visas?

Mr. Zarnoch: --No, all of them have a non-immigrant visa, but not a G-4 visa.

Unidentified Justice: Well, this case involves only the G-4 visa people?

Mr. Zarnoch: Well, this case involves a classification that disadvantages all non-immigrant aliens.

Unidentified Justice: I see.

Mr. Zarnoch: All holders of those particular visas.

But to answer your question, Mr. Chief Justice, all those... all those particular non-immigrant categories are not represented in the class that the University... primarily they are A visa holders and J visa holders who are foreign students or cultural exchange students.

There is also the G-4 aliens, about 70 G-4 aliens roughly in that number, and diplomats.

Unidentified Justice: Let me ask you, because I am a little puzzled, you say there are 70 G-4 aliens in the class that are paying the higher tuition?

Mr. Zarnoch: Yes, during those years in question, 1978 and 1979, roughly about 65 to 70.

Unidentified Justice: Does this case involve anything but those people?

Mr. Zarnoch: Well, the persons who brought the challenge fall into that category.

The classification challenge involves the whole category of non-immigrant aliens, and in fact both the lower court and the Fourth Circuit held that it violated... the policy violated equal protection because it disadvantaged the entire class of non-immigrant aliens.

Unidentified Justice: Do they all have the same tax exemption that the G-4 people do?

Mr. Zarnoch: No, no.

Unidentified Justice: But then your rationale doesn't apply to them.

Mr. Zarnoch: Well, Your Honor, they--

Unidentified Justice: I am puzzled.

I don't know what... now I am really--

Mr. Zarnoch: --Well, Your Honor, I think, you know, the focus here, the policy itself disadvantages a class, an entire class of non-immigrant aliens.

Now, the rationale we have offered in justification of that policy focuses in to an extent on tax contributions of that class.

Unidentified Justice: --If I understand you correctly, your justification applies to 70 people in a class of 497.

Mr. Zarnoch: No, Your Honor.

No, it doesn't.

In fact, all non-immigrant aliens are treated differently with respect to taxes other than... treated differently than citizens and resident aliens.

It so happens that G-4's can point to a particular tax exemption that hurts their case, but, for example--

Unidentified Justice: Well, does the record tell us about the tax exemption of the other 427 people?

Mr. Zarnoch: --Yes, it is basically a matter of a question of law.

For example, most non-immigrant aliens, for example, are not taxed on foreign source income.

Unidentified Justice: Is this in the briefs, all this?

Mr. Zarnoch: Yes, it is, Your Honor.

Yes, it is.

In terms of foreign source income, most non-immigrants do not pay taxes on foreign source income.

Citizens and resident aliens do, on the other hand.

There are many other categories of non-immigrants that are treated better, more advantageously with respect to taxes.

For example, a foreign student from Japan who would attend the University of Maryland has a $2,000 exemption on a portion of his compensation.

There are various treaties that confer a privileged tax status on various non-immigrants.

There is even, for example, federal law confers a tax break on all international organization employees, not just the particular banks who are in this case.

So, we contend as a general matter non-immigrant aliens are treated differently for purposes of taxation.

They do not pay their full share of taxes, the class as a whole, and G-4's in particular.

In terms of the legal protection question here, we say this Court's earlier decisions in terms of alienage have all focused in on a number of characteristics when it decided to accord strict scrutiny to the classification at issue.

It looked at taxes.

This Court has indicated a number of times that resident aliens are taxed precisely like citizens.

They pay their full share of taxes.

Non-immigrant aliens, as I have tried to suggest, do not.

There are a number of non-immigrant aliens who are simply not here long enough to contribute much in the way of taxes or anything else in terms of the state's economy.

Another--

Unidentified Justice: When you say they pay all... resident aliens pay all taxes, you mean federal and state income taxes?

Mr. Zarnoch: --That's true, Your Honor.

Unidentified Justice: And all property taxes?

Mr. Zarnoch: That's true, Your Honor.

Unidentified Justice: And sales taxes?

Mr. Zarnoch: There is absolutely no... federal law draws no distinction between resident aliens and citizens.

There is no difference.

Unidentified Justice: Is there any category that ha access, for example, to tax-free stores equivalent to our post exchanges in other countries?

Mr. Zarnoch: I'm not sure, Your Honor.

I don't know.

Unidentified Justice: None in Maryland, at any rate?

Mr. Zarnoch: Not as far as I know, Your Honor.

Unidentified Justice: No.

Mr. Zarnoch: In terms of the other criteria this Court has looked at in terms of strict scrutiny, it is also emphasized that resident aliens serve in the military.

I think you ought to note here that non-immigrant aliens are excluded from... were excluded when we had a draft, and presently are not subject to draft registration, so they are not obliged to serve in the military.

The Court has also noted on occasions that resident aliens are required to obey all of our laws.

Well, here, certain categories of non-immigrants are not completely obliged to obey all our laws.

For example, diplomats are one class that because of either diplomatic immunity or statutory immunity are not fully liable for violation of certain laws, and the same is true of employees of international organizations, who by statute have a certain immunity that relieves them from the obligations of complying with all the country's laws.

Unidentified Justice: That is by federal statute, is it?

Mr. Zarnoch: That is by federal statute.

Unidentified Justice: I take it you are going to address the pre-emption argument here, too.

Mr. Zarnoch: I certainly will, Your Honor.

Unidentified Justice: Of course, many of the things you are talking about seem to me bear on the pre-emption question, don't they?

Mr. Zarnoch: That is true, Your Honor.

Unidentified Justice: Yes.

Mr. Zarnoch: Well, at your urging, I will move on to that question.

Unidentified Justice: May I ask you a question first about this class again?

Mr. Zarnoch: Sure.

Unidentified Justice: Of these 497 people, how many of them are eligible for domicile?

Mr. Zarnoch: Well, I think so far our court of appeals has only held that G-4 aliens are capable of acquiring--

Unidentified Justice: And you still exclude non-domiciliaries independently, regardless of whether they are--

Mr. Zarnoch: --That is true, Your Honor.

We exclude non... so we exclude citizens--

Unidentified Justice: --So we don't know how many of these 497 will be excluded from the in tuition rate because they are not eligible to be domiciled?

Mr. Zarnoch: --Your Honor, the policy excludes them anyway.

The policy doesn't look into the particular domicile of any non-immigrant.

The policy simply excludes them as a class.

You know, whether or not they are capable of acquiring domicile or not, because of the cost equalization rationale that we--

Unidentified Justice: Now, that is the amended policy, is it not?

Mr. Zarnoch: --Your Honor, the policy never was amended, in terms of the operation and effect.

Unidentified Justice: Oh.

Mr. Zarnoch: There was a resolution issued in June of 1978 that--

Unidentified Justice: But there was a time when domicile was important.

That is why we sent it back, was it not?

Mr. Zarnoch: --Your Honor, this case was argued, it was argued to the district court on the grounds that, in 1976, that is, on the grounds that G-4 aliens could not acquire a domicile--

Unidentified Justice: Yes.

Mr. Zarnoch: --and therefore couldn't meet the test anyway.

We have also argued consistently since then certainly that the policy is independently supported by a rational basis of cost equalization.

In fact, the students when they were informed by the University president that they were not going to be accorded state status, were given two reasons, first, the cost equalization tax notion, and secondly the fact that they couldn't acquire domicile.

Now, that issue is no longer a question.

The court has... our court of appeals has held that G-4 aliens can be domiciled.

The rationale on that decision doesn't say what other categories of non-immigrant aliens could or might or may not be domiciled in the state of Maryland, and we don't--

Unidentified Justice: We should judge this case as though all of the group that are involved here--

Mr. Zarnoch: --Could be domiciled.

Unidentified Justice: --could acquire domicile.

Mr. Zarnoch: That's true, Your Honor.

Unidentified Justice: Yes.

Mr. Zarnoch: I think you could.

Unidentified Justice: Mr. Zarnoch, then the class includes more than the G-4 aliens.

Mr. Zarnoch: Yes, Your Honor.

I think so.

I think--

Unidentified Justice: And we are dealing with all non-immigrant aliens.

Mr. Zarnoch: --That's true, Your Honor.

Unidentified Justice: Is that right?

Mr. Zarnoch: That's true.

Unidentified Justice: And they are all excluded from these tuition... the tuition break.

Mr. Zarnoch: That's true, Your Honor.

Unidentified Justice: Regardless of whether they are domiciliaries.

Mr. Zarnoch: That's true, Your Honor.

The policy--

Unidentified Justice: Based on the fact that they don't pay state income tax.

Mr. Zarnoch: --Yes.

Well, Your Honor, that's true.

Well, it's not just state income tax.

Unidentified Justice: Is that right?

Mr. Zarnoch: It is just that that class, viewed... viewing the general characteristics of that class, they don't particularly contribute fully to the support of the University of Maryland, which, as we have indicated in our brief--

Unidentified Justice: Through the income tax.

Mr. Zarnoch: --That is the chief concern, because the University--

Unidentified Justice: Because they would be paying state sales taxes if you have them or other taxes.

Mr. Zarnoch: --Yes, that is true, Your Honor, but many of the taxes cited by the G-4's as paying, they don't particularly fund the costs of the education at the University of Maryland.

For example, property taxes don't pay for... motor vehicle taxes, none of those things pay for the University education.

Unidentified Justice: In your view, does this Court have to overrule Vlandis versus Kline to uphold Maryland's scheme?

Mr. Zarnoch: No, we have indicated in our brief at least three possible ways the Court would not have to overrule Vlandis versus Kline to uphold the policy.

One would be simply to... if the Court concludes that the policy does not violate equal protection, and finds a rational basis... finds our basis for the policy rational, that is enough to survive a due process challenge.

For example, in Vlandis versus Kline, this Court noted that aside from an interest in administrative certainty, there was no rational basis for Connecticut's treatment of non-residents.

If, for example, if the Court does find a rational basis here, it is not invalid, even for Vlandis as it existed.

Unidentified Justice: Well, what about the back tuition?

How about the refund?

Don't you have to overrule Vlandis if you--

Mr. Zarnoch: Well, Your Honor, as I am saying, if it decides, you know, as I say, and the Court can address the due process question and simply say that we have a rational basis under the policy.

That is enough to meet Vlandis as modified by Salfi or whatever else.

I think--

Unidentified Justice: --You mean, even on the refund?

Mr. Zarnoch: --Well, Your Honor, I... well--

Unidentified Justice: I thought that... Didn't the Court say your former policy was invalid?

Mr. Zarnoch: --That's true.

It said--

Unidentified Justice: Under Vlandis against Kline?

Mr. Zarnoch: --It said it was invalid from the period 1976 through 1978.

Unidentified Justice: Yes.

Well, what about that period?

Mr. Zarnoch: Your Honor, we are asking the Court to reach the due process question.

The question asked by Justice O'Connor was whether you have to overrule Vlandis versus Kline to do that.

We certainly are asking the Court to address that due process question.

One way that we say to do it is, if you find a rational basis for the policy under equal protection, it is obviously rational under due process.

Unidentified Justice: Well, I understand that.

I understand that about the prospective validity of your policy, but how about the refund for that period that the Court has already held violated Vlandis against Kline?

Mr. Zarnoch: Your Honor, it would be... the policy has not changed in effect with respect to non-immigrant aliens.

I mean, non-immigrant aliens were denied before 1978 and after 1978.

If the policy was rational now, and in terms of its operation and effect, why wouldn't it have been rational since 1976?

Why wouldn't the due process conclusion of the Court, even for that particular period, fall by the wayside?

Unidentified Justice: Well, then, so you do say--

Mr. Zarnoch: I say you have to address the issue.

You just don't have to overrule Vlandis versus Kline to do it.

I think if you find a rational basis, you know, you have sustained the policy.

Unidentified Justice: --All right.

Mr. Zarnoch: We have also argued a number of grounds for getting around Vlandis versus Kline, but we do ask the Court, and we... as all 50 states do, to overrule Vlandis versus Kline, because we do think the case is really a dead letter in the law.

To turn to the supremacy clause for a moment, there are really two separate supremacy clause arguments.

One was basically premised upon an impermissible state attempt to regulate immigration, and the lower court held the policy invalid on that ground solely because it found an invidious discrimination under the equal protection clause.

No other basis was given.

So, as a practical matter, if we... if that theory prevails, we should be... if the Court finds it okay under equal protection, it should find the policy okay under the supremacy clause, under that aspect of the supremacy clause.

There is a second supremacy clause argument made here, and that was made as an alternate ground, and this was the one that was rejected by the lower court.

That argument is made that the University... the rationale of the University's in-state policy, that rationale somehow conflicts with the rationale of the international agreements conferring a tax advantage on the bank employees.

Now, the lower court rejected this purported class of rationales as too attenuated to amount to a supremacy clause violation, and we suggest that at least in this respect the lower court was right, that what the University's policy does is simply include G-4 aliens in a group of non-immigrant aliens who, for a particular reason, and it is not just, you know, this particular treaty tax exemption or a tax exemption flowing from an international agreement, for a variety of reasons do not contribute the way citizens and permanent resident aliens do to the cost of University education.

We don't pick out an international agreement or a treaty.

In fact, in some cases we don't even focus... you know, we don't focus in on the individual tax situation of anybody.

We simply drew a line, and the G-4 aliens are on the wrong side of the line for purposes of acquiring the in-state tuition.

Unidentified Justice: May I ask one other question?

Mr. Zarnoch: Sure.

Unidentified Justice: To what extent do you pursue the argument that you can treat these people differently?

Could you deny them, say, garbage collection services, or police protection, without charging them a special fee for it, say?

Mr. Zarnoch: Your Honor, I think in terms of the cost equalization rationale, it is particularly appropriate when you are talking about a university education that is funded by primarily tax, income tax remedies.

Unidentified Justice: So are you other state services.

Mr. Zarnoch: But... well, most of them are... for example, police protection is funded by local property tax.

The garbage collection would be, too.

There really is no disability, as I understand it, from any of the... any non-immigrants from contributing their full share of property taxes.

So, what I am suggesting is that the rationale, our rational basis that we are asserting here may not hold water if you are trying to justify that kind of restriction.

Unidentified Justice: You mean, because they pay property taxes--

Mr. Zarnoch: Yes.

Unidentified Justice: --as opposed to income taxes.

Mr. Zarnoch: Yes.

For example... yes.

That is right.

Unidentified Justice: Does your budget... Your University's budget is derived entirely from income tax, is it?

Mr. Zarnoch: Well, Your Honor, it is basically from three sources.

In terms of state dollars being pumped in, it is largely income tax.

Unidentified Justice: None of the property taxes go for that purpose?

Mr. Zarnoch: No.

Local property taxes pay for primary and secondary education.

State property taxes pay state bond issues.

So property taxes really aren't at issue.

Unidentified Justice: They also use federal funds.

Mr. Zarnoch: Yes, we certainly do use federal funds, but the primary source of the revenues of the state are still the income tax and the general funds in the treasury.

Unidentified Justice: Counsel, the class includes more than the G-4 aliens.

Mr. Zarnoch: That's true, Your Honor.

Unidentified Justice: And does the federal policy concerning non-liability for income tax for the G-4's extend to the other non-immigrants?

Mr. Zarnoch: Your Honor, in terms of being treated differently for income tax purposes, yes, the federal government treats most non-immigrants differently with respect to payment of foreign source income for... payment of tax on foreign source income.

The federal government doesn't tax them on that, and the state of Maryland doesn't... the state of Maryland doesn't either.

Unidentified Justice: So we should assume that everyone in the class under the federal tax structure would not be in--

Mr. Zarnoch: Well, there may be a few, and I am going to say it is not perfect, but it doesn't have to be perfect.

There may be a few classes of non-immigrants who, for example, are... don't have a tax exemption and may be classified as a resident alien for purposes of the federal income tax, which means they are treated the same.

A few might be in that category, but we suggest, judging the class by its general characteristics, only a few.

The majority of people don't.

Unidentified Justice: --Okay, and Maryland's primary concern is the fact that these people aren't contributing--

Mr. Zarnoch: To the cost--

Unidentified Justice: --state income taxes.

Mr. Zarnoch: --To the costs of the education.

Unidentified Justice: And does that mean that we do have some kind of a supremacy clause problem of some significance because the policies appear to be in opposition?

Mr. Zarnoch: Well, Your Honor, as I indicated before, that, you know, there are a few that, for example, don't have a tax break.

They simply may be classified as a resident alien for income tax purposes, but--

Unidentified Justice: Okay, but you have just told us to ignore that.

Mr. Zarnoch: --But they are still disqualified, because they are included in the broad class of non-immigrant aliens.

We don't evaluate the individual tax situation of non-immigrant aliens.

What we do is, we are including every member of that class.

You know, they are disadvantaged by the policy, without a focus in on the particular source of their tax break, be it state law, be it federal law, be it treaty, no matter where.

That is part and parcel of the general characteristics of non-immigrant aliens, and we suggest that having drawn the line there, we are not picking out, for example, a federal treaty problem or a federal tax benefit.

For example, I don't know if there is any law that requires the state of Maryland to exempt foreign source income from... the payment of taxes on foreign source income.

That federal law does not require a tax on that, but I don't know if there is any particular requirement that the states not tax that kind of income.

But in any event, the state doesn't tax it, and that is another distinguishing characteristic of a large number of members of the class.

Unidentified Justice: General, do you have any figure on what percentage of the costs tuition is?

Mr. Zarnoch: Well, I could give you some rough figures in terms of percentages.

Unidentified Justice: Is it in the record, or not?

Mr. Zarnoch: No, it is not.

It is not in the record.

But in terms of the general funds of the... roughly the University got about $160 million in a recent year.

In terms of... roughly $30 million comes in by way of tuition and fees, and that money is appropriated back to the University by our General Assembly each year.

Unidentified Justice: Do you think the total cost of... What about an undergraduate at the University of Maryland?

You must have some figure as to what your cost of educating an undergraduate for--

Mr. Zarnoch: No, I don't... I'm sorry.

I don't have that, Your Honor.

Unidentified Justice: --But there is a substantial subsidy, is there?

Mr. Zarnoch: Oh, yes, Your Honor.

I mean, as I said, in terms of tuition--

Unidentified Justice: How about for out-of-state?

Mr. Zarnoch: --Well--

Unidentified Justice: Out-of-state tuition?

Would out-of-state tuition almost, or not quite--

Mr. Zarnoch: --No, Your Honor.

Unidentified Justice: --or not even close?

Mr. Zarnoch: Absolutely not.

In terms of the tuition receipts by the University of Maryland, roughly $30 million.

In terms of general funds being pumped back into the University, $160 million, five times as much.

Unidentified Justice: Yes.

Mr. Zarnoch: It is clearly a subsidy, you know.

It is tax subsidized.

Unidentified Justice: What is the tuition differential for a resident and a non-resident?

Mr. Zarnoch: It is... it has gone up since the time of the figures stated in the Court's opinion.

It is now $900 a semester, is the differential.

Unidentified Justice: What are the two figures?

Mr. Zarnoch: The two figures, I believe, are roughly... well, in terms of yearly figures, $700 for resident and $2,500 for non-resident.

Unidentified Justice: $1,800 a year.

Mr. Zarnoch: $1,800 a year.

Unidentified Justice: What is your income tax rate in Maryland?

Mr. Zarnoch: The income tax rate is... it is 5 percent, roughly 5 percent over--

Unidentified Justice: So somebody earning $20,000 a year would pay $1,000 in taxes?

He wouldn't pay as much as the differential, would he?

Mr. Zarnoch: --Well, Your Honor, I think, you know, focusing in on non-immigrant aliens, and particularly the C-4's, for instance, you know, all the parents of the plaintiffs, for instance, here are professional employees of World Bank, making salaries well in excess of $20,000.

Even the record indicated the salaries were in the $30,000 and $40,000 range, even when this case was argued back in 1976.

So, you know, G-4's are a particularly appropriate class to contend that, you know, they are being disadvantaged with respect to an income tax contribution rationale, but, you know, the rationale goes a little further than simply contributions during the period in question.

For example, if you stay in the state for a period of time, for example, an alien with a tax exemption, or a non-immigrant alien with a tax exemption, you are likely to stay here for a number of years, you know, just beyond the four years that a student might be in college.

For example, the G-4 aliens here, many of them stick around until retirement age, having escaped income tax on their salaries for maybe 15, 20 years.

Unidentified Justice: Does the University derive income from the state sales tax?

Mr. Zarnoch: Yes, the University does derive income or funds from the sales... the state sales tax, but in terms of--

Unidentified Justice: What percentage of the state's budget comes from income taxes as compared with sales taxes?

Mr. Zarnoch: --Well, the... in terms of total, total revenues, the total revenue picture, about a quarter comes from income tax, half as much comes from the sales tax.

There is twice... there is twice as many income tax... as much income tax revenue as there are sales tax revenues.

The sales tax in fact is not even the second biggest item.

Federal funds are the second item in terms of the top draw on the budget.

Your Honor, if I may, I would like to turn to the Vlandis versus Kline question, unless there are any further questions on the other issues.

We have set forth a number of reasons why we think Vlandis should be overruled, and the foremost of which is whether the Vlandis versus Kline doctrine represents a separate analysis any more.

Typically, when a suit is brought challenging a state policy under the irrebuttable presumption doctrine, it also is challenged under an equal protection theory, and invariably lower courts, taking its key, I think, from both Salfi and Your Honors' opinion in Usery versus Turner Elkhorn Mining Company, have concluded that it doesn't matter if the state enactment is premised in the form of a presumption, as long as its operation and effect are permissible.

For example, if under equal protection there is a rational basis that supports it, we need look no further under due process, and the lower courts, the circuit courts have simply... they treat an equal protection issue first, and then automatically it is okay under due process.

So, the question is really, is there a separate analysis there any more.

Also, there is a real question as to whether a court should be inquiring, demanding more than a rational basis on... as apparently was the case in Vlandis versus Kline.

There is also a debate among the courts as to where the irrebuttable presumption doctrine belongs.

Is it equal protection?

Is it substantive due process?

Is it procedural due process?

And frankly, is not in sync with any of those particular theories.

And lastly, I think in terms of the... it really doesn't demand the rationality of a measure any more.

The way the doctrine is presently formulated, all you really need is to articulate some particular basis, an additional basis, more than one basis for your particular policy, and order them in a sufficient fashion, whether that is primary or secondary.

It doesn't demand, at least in the way it is presently formulated, that a policy be rational, and we suggest that is what the Court should be looking for, and that is really the only inquiry a court should engage in when the issue is whether a due process violation has occurred.

Unless there are any further questions, I would like to reserve the rest of my time for rebuttal.

Chief Justice Burger: Very well.

Mr. Bieke?

ORAL ARGUMENT OF JAMES R. BIEKE, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. Bieke: Mr. Chief Justice, and may it please the Court, there can be no question that the University's policy establishes a classification based on alienage, for on its face it allows citizens and immigrant aliens who are domiciled in Maryland to obtain but it totally excludes all non-immigrant aliens from doing so even if they are likewise domiciled in Maryland, and it is equally clear that this policy, this classification treats unequally only the non-immigrants who can be and are domiciled in Maryland.

Contrary to what the Assistant Attorney General said, this is not at all non-immigrants.

This Court's opinion in the Flkins case held specifically that most non-immigrants, and it listed a number of the visa categories, were precluded by the terms of their visas under the federal law from establishing domicile in this country.

Obviously, these people are not discriminated against by the University's policy, because even if they were treated like citizens and immigrants, they would fail to qualify.

The only non-immigrants treated unequally by the policy are those such as G-4's and a few other categories who are capable of being domiciled in Maryland under state and federal law.

Unidentified Justice: Were the named parties to this case all G-4's?

Mr. Bieke: Yes, indeed, Your Honor.

Unidentified Justice: Was there any objection from either party when the district court certified a broader class than G-4?

Mr. Bieke: No, the class certified, Your Honor, consisted only of G-4's.

Unidentified Justice: So that the only issue we have before us then is G-4's?

Mr. Bieke: Yes, Your Honor.

In fact... but I was trying to make a different point.

That's true.

The only issue involved in this case is G-4's.

That's the class we represent, the only class certified by the district court.

And the--

Unidentified Justice: So you disagree with the Attorney General's characterization of the class.

Mr. Bieke: --Yes, Your Honor, and that would be... it is made clear by the fact that most non-immigrants aren't hurt by the policy.

All we are--

Unidentified Justice: Well, Mr. Bieke, I am not sure your colleague said the class before the Court.

He said the class to which the University's policy applies.

Mr. Bieke: --That's true.

Unidentified Justice: You don't disagree with him on that, do you?

Mr. Bieke: Your Honor--

Unidentified Justice: I mean, on its face, it applies to all non-immigrant aliens, whether they are discriminated against or not.

Mr. Bieke: --On its face, it applies to all non-immigrants, but all non-immigrants are not treated unequally by the policy.

Unidentified Justice: I said whether or not.

That's true.

Mr. Bieke: Right.

Unidentified Justice: Right.

Mr. Bieke: That is true.

The--

Unidentified Justice: Putting it a little differently, if you win this case, only a handful of people will get a benefit, namely, the G-4's and two or three others.

Is that right?

Mr. Bieke: --That's correct.

Unidentified Justice: The rest of this 497 will still be ineligible for the lower rate because they are not eligible to be domiciled?

Mr. Bieke: That's correct.

Unidentified Justice: Yes.

Mr. Bieke: Now, this--

Unidentified Justice: Can you tell us how many people, then, you say are in the category which will be affected by this Court's determination?

Mr. Bieke: --Mr. Zarnoch correctly said that in the years around 1978, 1979, there were around 70 G-4's at the University.

The only other non-immigrant categories that we believe are capable of establishing domicile in this country are E's, who are treaty traders, and I's, who are foreign media representatives.

There is no indication that... we don't know how many of those were at the University, but not very many.

Most of them were... are people who are students who come to this country solely to go to school, and this Court in Elkins made clear that those people cannot be domiciled in this country.

Unidentified Justice: So we are really dealing only with about 70 people?

Mr. Bieke: Yes, Your Honor.

Unidentified Justice: In some of the--

Mr. Bieke: Per year.

Unidentified Justice: --All right.

Some of the amicus briefs indicate that in fact the difference of the tuition is being paid by the companies that employ these people, and the students who are constituting the class are not out of pocket anything.

If that be the case, how do they have standing?

Mr. Bieke: That is not the case, Your Honor.

We of course represent G-4, all G-4 visa holders, and these are employees of different kinds of organizations, so it is a different question for different organizations.

For the Interamerican Development Bank, their policy is to reimburse their employees one-half the tuition and fees up to $3,500, so obviously if they pay a higher rate they pay half of the higher rate.

And for the World Bank, they do have a reimbursement policy that is in the Joint Appendix, but that policy was adopted after the district court issued its initial decision and stay, and for the purpose of... the period of the stay, for the purpose of this litigation.

At the time the class was certified, the G-4 people themselves had paid the difference, and so at the time the class was certified, they represented the class, and they had been harmed.

And there are a number of organizations, and we don't know... have no reason to believe that they have any policy of reimbursement, the other... the people for the other organizations.

Now, the University's policy here, as I said, treats the non-immigrants who are domiciled in Maryland differently from citizens and immigrants domiciled, because they are the only ones, the non-immigrants are the only ones who are excluded from in-state status without reference to their domicile.

This is a classification that is based on their alienage, or more specifically, on their immigration or visa status, which is something that has been set by Congress.

In fact, the University's main justification for this discriminatory treatment, which is that they are exempt from taxes on their salaries, is also something based on a federally granted right.

In our view, this discriminatory treatment violates both the equal protection clause and the supremacy clause.

For equal protection purposes, the classification made by the universities under the Nyquist case, one based on alienage because it is directed at aliens and harms only aliens, and we believe that this classification should be subject to the same strict scrutiny that the Court has applied to other classifications based on alienage.

The reason why strict scrutiny has been established as a protective measure is that aliens are a prime example of a discreet and insular minority who have no voice in the political process and may be discriminated against by the majority unless specially protected by the courts.

Unidentified Justice: How about welfare payments?

Would they be eligible for welfare?

Mr. Bieke: Yes, Your Honor, I believe they are.

Unidentified Justice: Medicare and Medicaid, all the--

Mr. Bieke: Medicare, there is a federal statute that precludes... that draws a distinction that excludes not only non-immigrants but some permanent resident aliens, some immigrants, and that was upheld in Mathews versus Diaz on the specific ground that the federal government has power to distinguish among aliens that the states don't have.

But the non-immigrants here, that is, the rationale of strict scrutiny that I said applies equally to non-immigrants living in this country, residing this country, as it does to immigrants.

The University would have you apply to this classification, which is concededly based on alienage and singles out a class of aliens for discriminatory treatment the same lenient rational basis standard that has been applied in the economic area to classifications which don't discriminate against any particular class that has been the object of heightened judicial solicitude, but that is inconsistent with the Court's whole history of concern for aliens, and also, I should say... I will get to this latter... with the principles under the supremacy clause.

Now, Mr. Zarnoch makes a point of the fact that this Court has sometimes in prior opinions referred to certain attributes of immigrant aliens.

Generally speaking, however, those references were made in the context of applying strict scrutiny, not in determining whether strict scrutiny should be applied, but in any case.

But in any case, the non-immigrants who are disadvantaged, the non-immigrants who are treated unequally by this policy, as I said, are those who are domiciled in the state, and these are not very different from immigrant aliens.

They live in the state for many years.

They must obey all their laws, all the state's laws, and I might say, incidentally, they do not have diplomatic immunity, as Mr. Zarnoch implied.

They are assimilated into their communities.

They participate in their communities, and they pay all taxes except those on which they have a specific exemption established by international agreement, over which they have no control, and these taxes include not only sales taxes and property taxes, but income taxes on al other income except those salaries.

If their spouses work, full income taxes on their spouses' salaries.

If they get any other income from investments and so on, they pay full income taxes on that.

These people have made the state their home.

That is the meaning of domicile.

They are not going to return to some foreign country some time.

They live here, and they intend to live here permanently.

And at least when the state is treating such a class of its own domiciliaries differently from its other domiciliaries, solely on the ground that they are a particular kind of alien, that classification should be subject to the same scrutiny that this Court has applied to classifications harming immigrant aliens.

Now, the University makes a great deal of the fact that these people don't pay the full range of taxes, but as I said, that is not a reason for lowering--

Unidentified Justice: --Counsel--

Mr. Bieke: --Sorry.

Unidentified Justice: --if we were to determine that the non-immigrant aliens were not entitled to strict scrutiny, would you concede that the Maryland policy would meet the rational basis test?

Mr. Bieke: No, Your Honor.

The... Even if the Court would decide that strict scrutiny did not apply, nevertheless there is no getting around the fact that this is a classification which singles out aliens for discriminatory treatment, and shouldn't be subject to the same rational basis test that has been applied to, say, social security classifications.

At least some form of heightened scrutiny should be required, and we don't think that could be met.

Unidentified Justice: No, but get back to my question.

Assume for purposes of answering this question only that we do not apply any kind of heightened scrutiny to this class.

Then how do you have your rational basis?

Mr. Bieke: Well, there is one other thing I have to say.

Unidentified Justice: And do you have to rely on Vlandis versus Kline to do that?

Mr. Bieke: No.

We can rely on the supremacy clause.

Even if the Court should decide--

Unidentified Justice: Well, that is a whole different--

Mr. Bieke: --It is a whole different thing.

Yes.

But it requires that there... when there is a classification, a discrimination against aliens who are lawfully admitted to this country when the state is imposing discriminatory burdens on them, the supremacy clause, too, requires something more than rational basis, but... and we have argued in our brief that even apart from all of that, even apart from any strict scrutiny or any heightened scrutiny, and apart from the supremacy clause, the classification is not rational.

Now, that is a hard argument, and we don't think we would have to reach it, because of all the reasons I gave for why the scrutiny should be stronger.

But still, it is not rational.

In fact, these people do pay all taxes except those on which they have the exemption.

They pay sales taxes, property taxes, and income taxes on any other income, and over the course of the years, then, they may have made substantial contributions to that state.

Unidentified Justice: --What if the federal government as a matter of statutory law provided that G-4's should not have to pay any federal or state taxes, and the University of Maryland accordingly adopted the policy it has?

Would you say that that policy couldn't survive rational scrutiny, rational basis?

Mr. Bieke: If the federal government's policy was, they didn't have to pay any taxes?

Unidentified Justice: Yes.

Mr. Bieke: Well, that would be harder for a rational basis.

It would be better for the supremacy clause.

Unidentified Justice: Yes.

I am just asking about rational basis.

Mr. Bieke: That would be a... it is not our case.

It would be a harder question.

But there is still the fact that the University does not apply this cost equalization tax payment justification to citizens and immigrants.

There is still that aspect of irrationality, and there are a number--

Unidentified Justice: Well, but they presumably pay some taxes.

Your people have a very good deal in that regard.

Mr. Bieke: --Not all of them.

There can be... there are a number of sources of state income that go to citizens or immigrants on which... which are exempt from state taxes.

For example, immigrant visa holders working for these same international organizations, and there are hundreds of them, are likewise exempt from taxes on their salaries, and yet they are entitled to in-state status upon a showing of domicile.

Unidentified Justice: Are the immigrant visa holders exempt by virtue of the place where they work?

Mr. Bieke: By virtue of the international agreements establishing the organizations for which they work.

That's right.

Unidentified Justice: Mr. Bieke, which... is the supremacy issue here?

It is, isn't it?

Mr. Bieke: Yes, indeed.

Unidentified Justice: Which... if you were going to win, which ground would you prefer?

Mr. Bieke: Your Honor, I think that they are both entirely sufficient to win.

Unidentified Justice: Yes, I think they may be sufficient, but there are certainly different consequences, I suppose.

Mr. Bieke: There are some different consequences.

Unidentified Justice: So I ask you again, which would you prefer?

Mr. Bieke: I think that I can only say that I--

Unidentified Justice: Which is better?

Which is best for your clients?

Mr. Bieke: --They both have exactly the same results.

Our clients who are... as I say, all we are seeking here is equal treatment with citizens and immigrants.

Unidentified Justice: Well, suppose we decide on the supremacy clause basis, and then Congress, instead of saying the aliens should be exempt from further taxes, say that, and furthermore, the states may charge non-immigrants out-of-state tuition?

Mr. Bieke: If Congress said that, then we would... the supremacy clause ground would be gone, of course.

Unidentified Justice: Yes, and so... but if we decide it on equal protection grounds, like you suggest, Congress couldn't say that.

Mr. Bieke: Congress could not say that, but Congress could say that they could no longer... they could reach the same result by saying that they could change the domicile point and say that we are now going to treat them just like most non-immigrants, say they can't be domiciled.

Unidentified Justice: Well, I know, but Congress couldn't... Congress then, they might say, get rid of the supremacy clause, but they couldn't get rid of the equal protection problem.

Mr. Bieke: Yes, they could, in the way I said.

The supremacy clause only requires that people be equally treated.

Most non-immigrants are not being treated unequally by this because they can't be domiciled here under federal law.

Congress could say that these non-immigrants--

Unidentified Justice: Well, that is--

Mr. Bieke: --could not be domiciled here under federal law either.

Unidentified Justice: --Yes.

Yes.

Mr. Bieke: They haven't done that, and they haven't done anything like what you suggest for supremacy clause.

Unidentified Justice: Yes.

Mr. Bieke: I think that both--

Unidentified Justice: Well, of course, there are 50 states in here.

Mr. Bieke: --Yes, there are.

Unidentified Justice: Fifty states, and this judgment is going to control not just the few handful of people that you suggest who live in Maryland, but all over the country, I suppose.

Mr. Bieke: This judgment is going to control only those non-immigrants who are capable--

Unidentified Justice: Yes, yes.

Mr. Bieke: --of being domiciled in this country--

Unidentified Justice: Yes, but there are more--

Mr. Bieke: --and there aren't very many of them.

There... most of the G-4's live in... around Washington and New York, because that is where the international organizations are.

There aren't a lot of people throughout the country and the states.

Unidentified Justice: --Well, there are going to be more than live in Maryland, though.

Mr. Bieke: Yes, that's true.

Unidentified Justice: Yes.

Mr. Bieke: Now, let me--

Unidentified Justice: This will embrace all of the UN personnel and the subsidiary agencies, will it not?

Mr. Bieke: --Yes.

Yes, Your Honor, and they live mostly around New York.

Now, let me address the supremacy clause issue.

Under this Court's decisions in the cases of Takahashi, Graham against Richardson, DeCanas against Bica, it is established that it is up to the federal government to decide the terms and conditions upon which aliens will be admitted to this country and will reside in this country, and once it has done so, the states may not impose additional discriminatory burdens on them... excuse me... not contemplated by Congress, and they especially may not do so on account of their immigration status assigned by Congress.

Here, Congress has assigned the various classes of immigrants and non-immigrants, and has decided on the restrictions applicable to them, and as this Court held in Flkins, Congress has deliberately decided that the G-4 visa holders and a few other categories are entitled to be domiciled in this country, unlike most non-immigrants.

In this situation, the states may not rely on their immigration status to impose 45 restrictions not imposed on other domiciliaries of the state.

To do that is to impose on their residents in this country discriminatory burdens not contemplated by Congress.

This may be justified, but only in the most exceptional circumstances, such as, for example, where the state is regulating in the area of traditional state sovereignty, defining qualifications for voting or for holding elective offices.

There that... there may be a good reason for what the state has done, but nothing like that is involved here.

Here, Congress has decided that these non-immigrants can be domiciled here, as a matter of federal immigration law.

And but for their status under the federal immigration law, they would be entitled to these benefits.

In this situation, the state cannot on account of their immigration status deny them the benefits that it grants to all other domiciliaries.

That is inconsistent with Congress's decision in admitting them.

That is an encroachment on the exclusive federal authority over immigration, and is in violation of the supremacy clause.

Unidentified Justice: I don't know that I follow that argument completely.

I mean, isn't the state entitled to take the factual situation which confronts it as 46 brought about by the Act of Congress and deal with that accordingly?

Mr. Bieke: Certainly there are situations in which the state may rely on the federal decision.

For example, here, the federal decision is that most categories of non-immigrants can't be domiciled in this country, and there is nothing wrong with the states relying on that to exclude them from in-state status, assuming that citizens and immigrants were treated on the basis of domicile, but here, the only difference between these non-immigrants and immigrants is their immigration status, and--

Unidentified Justice: Well, also the fact they don't pay state income tax, I take it.

Mr. Bieke: --Your Honor, that is true, but that is also based on a federally granted right.

Unidentified Justice: Right, and the state isn't trying to collect state income tax.

It is just saying that for people who don't pay state income tax, we are going to treat them differently than people who do.

That doesn't strike me as anything very arbitrary.

Mr. Bieke: That... well, it is not... it is not saying that completely.

That is, it is not applying that cost equalization justification to immigrants and citizens.

As I said, some immigrants and citizens are 47 exempt from taxes, and yet the University is allowing them to obtain in-state status upon a showing of domicile.

The real crucial difference between these people, non-immigrants domiciled in the state and immigrants domiciled in the state, and citizens, is their immigration, their visa status, and that, the University cannot rely on because it is imposing additional discriminatory burdens not contemplated by Congress.

But even if the University says no, that is not why we are treating them differently, we are treating them differently because they don't pay taxes, that is no good either.

That is a violation of the supremacy clause as well, because for most G-4's, those employed by the organizations listed in our Addendum A to our brief, they have been granted by the international agreements which have established them--

Unidentified Justice: What if Maryland were to conduct a lottery, and the only way you could get into the lottery was by filing a receipt for your income tax return last year, so that in effect the lottery was limited to people who paid Maryland income tax.

Now, these people obviously couldn't participate in the lottery.

Would you--

Mr. Bieke: --Most of them could if they... because most of them pay income tax, on other than their salary.

Unidentified Justice: --Well, take the example of those few who don't pay an income tax on their salary, or whose salary is their only income, so that they would be disqualified.

Would you say that the lottery violates the supremacy clause?

Mr. Bieke: Well, I don't know.

That would be an interesting question.

The principle... but the principle is... I would have to think about that for a minute.

Let me... The principle is that the state, even... there need not be a direct conflict between the language of the policy and the language of the international agreements.

It is established that the state may not penalize them on account of something granted by... an exemption granted by federal law, and I think they might have an argument in that case.

Certainly they have an argument here that the objective of the international agreements is that these people are supposed to have an income tax exemption, and that carries with it the implication that they are not to be penalized by the state, not to be subjected to burdens by the state on account of their federally granted income tax exemption.

Unidentified Justice: Mr. Bieke, until now, at least, this Court has not applied a supremacy clause analysis to cases involving aliens, has it?

Mr. Bieke: Oh, yes, Your Honor, in many cases, starting with--

Unidentified Justice: Relying on the supremacy ground, in your view?

Mr. Bieke: --The Graham against Richardson relied on both grounds.

The Takahashi case also both grounds.

Unidentified Justice: There is some language in it to that effect, but do you think we can really say they were based on that argument?

Mr. Bieke: Well, they were... certainly appeared to be independent grounds, and the DeCanas case, DeCanas against Bica, was a case that upheld a classification that harmed illegal aliens, but that case made clear the principles, and that was only a supremacy clause case, and said specifically that it is up to Congress to decide the conditions on which aliens will be admitted to this country, and that states may not impose additional discriminatory burdens not contemplated by Congress, and we believe that principle applies here.

Unidentified Justice: Has the Court applied, in your view, heightened scrutiny to cases of non-immigrant 50 aliens?

Mr. Bieke: No, the cases in fact that this Court has decided to date have all applied strict scrutiny, but none have involved only non-immigrants.

Unidentified Justice: Right.

Mr. Bieke: They have involved either all aliens or permanent resident aliens.

But as I said, these people are not very different from permanent resident aliens.

Unidentified Justice: I suppose your position would be the same with respect to a non-resident hunting license, for example.

Mr. Bieke: It would depend on--

Unidentified Justice: Suppose they charge $50 to go duck hunting in Maryland, but $100 for non-residents.

Mr. Bieke: --That would be okay, if they treated citizens and immigrants the same as non-immigrants.

Unidentified Justice: No, citizen, $50, your category, your class of people $100.

Mr. Bieke: Citizens of the United States resident in Virginia pay $50, and so do immigrants.

Non-immigrants resident of Virginia, even if domiciled there, pay $100.

I think that there would be a strong argument in that case that they would not be treating them equally.

It would depend on the justification in that case.

If it was that they didn't pay taxes, we would have a problem.

Now, there is a case--

Unidentified Justice: What if Maryland had a rule that people who don't pay the income tax shall pay a slightly higher property tax?

Mr. Bieke: --I think that would be penalizing them on account of something granted by the federal government.

Now, there is a good case not cited in our brief on this point, a case called Perez against Campbell.

It is in 402 of the United States Reports.

That case involved the Federal Bankruptcy Act, which allowed people to obtain full discharges in bankruptcy, and the Court, there held that it was a violation of the supremacy clause for the state to have a statute which required suspension of their driver's licenses for non-payment of judgments arising from auto accidents, even when there had been a discharge in bankruptcy, and the reason was that that penalized them on account of something granted by federal law.

Unidentified Justice: You mean, penalized them as compared with other people.

Mr. Bieke: Yes, indeed, penalized them as compared to other people.

Unidentified Justice: So you don't... if Maryland said, well, we will just start taxing these people on their foreign source income?

Mr. Bieke: That wouldn't be... that wouldn't be penalizing them if that was true of other people as well.

Unidentified Justice: Well, I know, but wouldn't... say they just, people who are not, who are exempt from federal income tax, we are going to start charging, taxing their foreign source income.

Mr. Bieke: I think that it would be... if they were being treated differently than citizens and immigrants, and on account of the fact that they had a federal tax exemption, then that would not be something that would be consistent with the federal tax exemption.

Congress--

Unidentified Justice: But if they taxed the foreign source income of all aliens.

Of course, they do tax foreign source income of citizens now, I suppose.

Mr. Bieke: --They do in most situations.

Unidentified Justice: Yes.

Yes.

But if they taxed the foreign source income of all aliens, you wouldn't have much of a beef.

Mr. Bieke: Well, they might have a classification there that would be treating all aliens differently, which we know is subject to strict 53 scrutiny.

But the--

Unidentified Justice: As compared to whom?

Mr. Bieke: --As compared to citizens.

Unidentified Justice: Well, they are getting a--

Mr. Bieke: If citizens were being taxed--

Unidentified Justice: --We are going to... well, citizens do pay taxes.

Mr. Bieke: --Well, then, they would not--

Unidentified Justice: On foreign source income.

Mr. Bieke: --Then we would have no beef.

Unidentified Justice: Yes.

Mr. Bieke: Now, it is not... we don't know exactly which ground the university ultimately relies on.

It appears to say that these G-4 visa holders domiciled in Maryland are treated differently from other domiciliaries because of their immigration status.

It not that it just appears to be so.

That is what the policy says.

The only difference between them is their immigration status, and that is something that is treating them differently on account of their visa status, which is assigned by Congress, and that they can't do.

They cannot impose discriminatory burdens on them on account of that.

And if their reliance is on the tax ground, the fact that they don't pay full taxes on the salaries, then that must fall, too, for the 54 same reason.

They are being penalized on account of their tax exemption.

Here, the University's discriminatory treatment of G-4 visa holders who are domiciled in Maryland is inconsistent with the federal judgment that they are entitled both to be domiciled in this country and to have a tax exemption.

All we are seeking, in other words, is equal treatment with citizens and immigrants, and the University's failure to provide that violates the equal protection clause and the supremacy clause.

Thank you.

ORAL ARGUMENT OF ROBERT A. ZARNOCH, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL

Mr. Zarnoch: Your Honor, I will just be very, very brief.

First--

Chief Justice Burger: You have four minutes remaining.

Mr. Zarnoch: --Four minutes, Your Honor?

Your Honor, in terms of the assertion that most spouses of G-4 aliens pay some tax, the record... the only record references to the actual payment of tax would show that two out of the three parents of the named plaintiffs do not have spouses earning income tax.

The record would rebut that contention.

Your Honor, in terms of the class affected, the question here that we are only dealing with a small number of non-immigrant aliens, first, diplomats, A visa holders, aren't any different than G visa holders.

There are 72 of them at the University of Maryland during the period in question.

So you would add another 72 on.

There are additional classes that really aren't terribly different than G-4's in terms of not having a federal disability.

Moreover, the question of whether any of the categories of non-immigrant aliens can be domiciled in Maryland is a question for the Maryland courts to decide, as this Court indicated itself in Elkins versus Moreno the first time this case was here.

The courts across the country differ widely on visa categories, whether they are able to acquire domicile in a jurisdiction for a particular purpose.

There is absolutely no consistency, no guarantee that the court of appeals wouldn't find every category of non-immigrant capable of being domiciled in the state of Maryland.

Moreover, the class struck down by the Fourth Circuit and by the lower court included all non-immigrant aliens.

If you judge the class--

Unidentified Justice: Well, but the part of the submission here is that... on the supremacy clause ground is that Maryland may not deny them domicile.

Mr. Zarnoch: --Your Honor, if all Maryland does is--

Unidentified Justice: I mean, isn't that their submission, part of it?

Mr. Zarnoch: --May not deny them domicile?

Unidentified Justice: Yes.

The federal government--

Mr. Zarnoch: Well--

Unidentified Justice: --The federal government says they may be domiciled in this country.

Mr. Zarnoch: --But in terms of their... their position is they can't be denied the benefit, rather than domicile.

But even if you assume all categories of non-immigrant aliens can be domiciled here, you know, we suggest that the cost equalization rationale cuts across that line.

We don't pick out G-4 aliens, their treaty benefits.

We focus on simply the status of being non-immigrant, and we think that is justifiable.

Thank you, Your Honor.

Unidentified Justice: May I ask one--

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Plyler v. Doe - Oral Argument

Fri, 09 Jan 2009 14:47:36 +0000

Case:

Plyler v. Doe

Media File:

80-1538_19811201-lq-argument.mp3

Related Transcript:

1981_80_1538_argument.xml

Transcript:

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.

Attribution:

The OYEZ Project

Featured:

Nyquist v. Mauclet - Oral Argument

Sun, 08 Aug 2010 17:07:33 +0000

Case:

Nyquist v. Mauclet

Media File:

76-208_19770322-argument.mp3

Related Transcript:

76-208_19770322-argument.xml

Transcript:

Argument of Judith A. Gordon

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unfortunately, Your Honor we cannot project that.

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

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

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

Now region scholarships share.

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

Ms Judith A. Gordon: Exactly Your Honor?

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

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

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

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

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

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

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

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

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

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

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

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

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

Now if...

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

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

You mean the State government or the Federal government.

Unknown Speaker: Federal government.

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

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

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

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

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

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

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

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

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

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

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

Ms Judith A. Gordon: Pardon me Your Honor.

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

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

We are just worrying about the influx problem.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: Cannot participate in one sense, voting?

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

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

I don't think you can assume them.

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

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

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

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

Unknown Speaker: And the difference is?

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

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

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

Now, the whole purpose and some independent colleges.

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

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

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

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

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

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

Unknown Speaker: From admission.

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

Unknown Speaker: New York State University.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ms Judith A. Gordon: Yes Your Honor.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That's a huge amount.

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

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

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

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

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

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

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

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

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

Mr. Davidson.

Argument of Michael Davidson

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

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

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

If the judgment.

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Michael Davidson: No it does not.

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

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

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

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

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

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

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

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

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

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

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

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

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

Unknown Speaker: You mean more bankrupt?

Mr. Michael Davidson: More bankrupt.

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

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

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

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

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

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

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

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

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

The program is more than a program of largesse.

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

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

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

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

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

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

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

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

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

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

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

Mr. Michael Davidson: A Written examination.

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

Mr. Michael Davidson: Well that tuition assistance program.

Unknown Speaker: Depending upon the need of course.

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

Unknown Speaker: All schools of higher education.

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

Unknown Speaker: Post High school.

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

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

But, the only requirements.

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

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

Unknown Speaker: From the TAT?

Mr. Michael Davidson: That's right.

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

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

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

His focus is entirely on Tuition Assistance Program.

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

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

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

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

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

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

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

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

Unknown Speaker: Grand children.

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

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

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

Well, let's choose citizens as well.

These are integrated programs.

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

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

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

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

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

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

He may become a citizen later on.

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

It only places in a minimum period of time.

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

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

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

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

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

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

Chief Justice Warren E. Burger: Very well.

Mr. Greenberg.

Argument of Gary J. Greenberg

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

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

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

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

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

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

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

Unknown Speaker: Where are you reading?

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

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

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

No reference to citizen, simply recognition?

Unknown Speaker: The same Legislature that excluded the aliens.

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

Unknown Speaker: You have details about all?

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

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

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

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

Could they do it under their constitution?

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

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

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

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

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

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

There are no statistics as to in general.

Unknown Speaker: Percentages.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Gary J. Greenberg: Oh! Absolutely.

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

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

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

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

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

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

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

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

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

He has never actually applied for a loan.

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

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

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

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

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

Finally, we would point to the supremacy.

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

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

Unknown Speaker: That's what, I thought.

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

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

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

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

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

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

Thank You.

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

Rebuttal of Judith A. Gordon

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I think because it was obviously gross error.

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

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

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

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

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

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

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

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

Of course, the additional subsidy provided by the program.

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

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

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

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

Unknown Speaker: What could be the sense?

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

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

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

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

Unknown Speaker: Could he do that?

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

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

When there is no way he could get it.

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

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

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

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

Thank you, Your Honor.

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

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

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

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

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

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

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

Unknown Speaker: So, your answer is...

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

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

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you.

The case is submitted.

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