Plyler v. Doe

No. 80-1538

Argued December 1, 1981

Decided June 15, 1982 *

457 U.S. 202

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

Syllabus



Held:  A Texas statute which withholds from local school districts any

state funds for the education of children who were not "legally

admitted" into the United States, and which authorizes local school

districts to deny enrollment to such children, violates the Equal

Protection Clause of the Fourteenth Amendment.





(a) The illegal aliens who are plaintiffs in these cases challenging the

statute may claim the benefit of the Equal Protection Clause, which

provides that no State shall "deny to any person within its jurisdiction

the equal protection of the laws."  Whatever his status under the

immigration laws, an alien is a "person" in any ordinary sense of that

term.  This Court's prior cases recognizing that illegal aliens are

"persons" protected by the Due Process Clauses of the Fifth and

Fourteenth Amendments, which Clauses do not include the phrase "within

its jurisdiction," cannot be distinguished on the asserted ground that

persons who have entered the country illegally are not "within the

jurisdiction" of a State even if they are present within its boundaries

and subject to its laws.  Nor do the logic and history of the Fourteenth

Amendment support such a construction.  Instead, use of the phrase

"within its jurisdiction" confirms the understanding that the Fourteenth

Amendment's protection extends to anyone, citizen or stranger, who is

subject to the laws of a State, and reaches into every corner of a

State's territory.



(b) The discrimination contained in the Texas statute cannot be

considered rational unless it furthers some substantial goal of the

State.  Although undocumented resident aliens cannot be treated as a

"suspect class," and although education is not a "fundamental right," so

as to require the State to justify the statutory classification by

showing that it serves a compelling governmental interest, nevertheless

the Texas statute imposes a lifetime hardship on a discrete class of

children not accountable for their disabling status.  These children can

neither affect their parents' conduct nor their own undocumented status.

The deprivation [457 U.S. 203] of public education is not like the

deprivation of some other governmental benefit.  Public education has a

pivotal role in maintaining the fabric of our society and in sustaining

our political and cultural heritage; the deprivation of education takes

an inestimable toll on the social, economic, intellectual, and

psychological wellbeing of the individual, and poses an obstacle to

individual achievement.  In determining the rationality of the Texas

statute, its costs to the Nation and to the innocent children may

properly be considered.



(c) The undocumented status of these children vel non does not establish

a sufficient rational basis for denying them benefits that the State

affords other residents.  It is true that, when faced with an equal

protection challenge respecting a State's differential treatment of

aliens, the courts must be attentive to congressional policy concerning

aliens.  But in the area of special constitutional sensitivity presented

by these cases, and in the absence of any contrary indication fairly

discernible in the legislative record, no national policy is perceived

that might justify the State in denying these children an elementary

education.



(d) Texas' statutory classification cannot be sustained as furthering

its interest in the "preservation of the state's limited resources for

the education of its lawful residents."  While the State might have an

interest in mitigating potentially harsh economic effects from an influx

of illegal immigrants, the Texas statute does not offer an effective

method of dealing with the problem.  Even assuming that the net impact

of illegal aliens on the economy is negative, charging tuition to

undocumented children constitutes an ineffectual attempt to stem the

tide of illegal immigration, at least when compared with the alternative

of prohibiting employment of illegal aliens.  Nor is there any merit to

the suggestion that undocumented children are appropriately singled out

for exclusion because of the special burdens they impose on the State's

ability to provide high-quality public education.  The record does not

show that exclusion of undocumented children is likely to improve the

overall quality of education in the State.  Neither is there any merit

to the claim that undocumented children are appropriately singled out

because their unlawful presence within the United States renders them

less likely than other children to remain within the State's boundaries

and to put their education to productive social or political use within

the State.



No. 80-1638, 628 F.2d 448, and No. 80-1934, affirmed.



BRENNAN, J., delivered the opinion of the Court, in which MARSHALL,

BLACKMUN, POWELL, and STEVENS, JJ., joined.  MARSHALL, J.,post, p.

230, BLACKMUN, J., post, p. 231, and POWELL, J., post, p. 236,

filed concurring opinions.  BURGER, C.J., filed a dissenting opinion, in

which WHITE, REHNQUIST, and O'CONNOR, JJ., joined,post,  [457 U.S. 205]

BRENNAN, J., lead opinion



JUSTICE BRENNAN delivered the opinion of the Court.



The question presented by these cases is whether, consistent with the

Equal Protection Clause of the Fourteenth Amendment, Texas may deny to

undocumented school-age children the free public education that it

provides to children who are citizens of the United States or legally

admitted aliens. I



Since the late 19th century, the United States has restricted

immigration into this country.  Unsanctioned entry into the United

States is a crime, 8 U.S.C.  1325, and those who have entered unlawfully

are subject to deportation, 8 U.S.C.  1251, 1252 (1976 ed. and Supp.

IV).  But despite the existence of these legal restrictions, a

substantial number of persons have succeeded in unlawfully entering the

United States, and now live within various States, including the State

of Texas.



In May, 1975, the Texas Legislature revised its education laws to

withhold from local school districts any state funds for the education

of children who were not "legally admitted" into the United States.  The

1975 revision also authorized local school districts to deny enrollment

in their public schools to children not "legally admitted" to the

country.  Tex. Educ.Code Ann.  21.031 (Vernon Supp.1981).  These cases

involve constitutional challenges to those provisions. [457 U.S. 206]

No. 8158 Plyler v. Doe



This is a class action, filed in the United States District Court for

the Eastern District of Texas in September, 1977, on behalf of certain

school-age children of Mexican origin residing in Smith County, Tex.,

who could not establish that they had been legally admitted into the

United States.  The action complained of the exclusion of plaintiff

children from the public schools of the Tyler Independent School

District.  The Superintendent and members of the Board of Trustees of

the School District were named as defendants; the State of Texas

intervened as a party-defendant.  After certifying a class consisting of

all undocumented school-age children of Mexican origin residing within

the School District, the District Court preliminarily enjoined

defendants from denying a free education to members of the plaintiff

class.  In December, 1977, the court conducted an extensive hearing on

plaintiffs' motion for permanent injunctive relief. [457 U.S. 207]



In considering this motion, the District Court made extensive findings

of fact.  The court found that neither  21.031 nor the School District

policy implementing it had "either the purpose or effect of keeping

illegal aliens out of the State of Texas."  458 F.Supp. 569, 575 (1978).

Respecting defendants' further claim that  21.031 was simply a financial

measure designed to avoid a drain on the State's fisc, the court

recognized that the increases in population resulting from the

immigration of Mexican nationals into the United States had created

problems for the public schools of the State, and that these problems

were exacerbated by the special educational needs of immigrant Mexican

children.  The court noted, however, that the increase in school

enrollment was primarily attributable to the admission of children who

were legal residents.  Id. at 575-576.  It also found that, while the

"exclusion of all undocumented children from the public schools in Texas

would eventually result in economies at some level," id. at 576, funding

from both the State and Federal Governments was based primarily on the

number of children enrolled.  In net effect, then, barring undocumented

children from the schools would save money, but it would "not

necessarily" improve "the quality of education."  Id. at 577.  The court

further observed that the impact of  21.031 was borne primarily by a

very small subclass of illegal aliens, "entire families who have

migrated illegally and -- for all practical purposes -- permanently to

the United States."  Id. at 578.  Finally, the court noted that, under

current laws and practices, "the illegal alien of today may well be the

legal alien of tomorrow," and that, without an education, these

undocumented [457 U.S. 208] children, [a]lready disadvantaged as a

result of poverty, lack of English-speaking ability, and undeniable

racial prejudices, . . . will become permanently locked into the lowest

socio-economic class. Id. at 577.



The District Court held that illegal aliens were entitled to the

protection of the Equal Protection Clause of the Fourteenth Amendment,

and that  21.031 violated that Clause.  Suggesting that the state's

exclusion of undocumented children from its public schools . . . may

well be the type of invidiously motivated state action for which the

suspect classification doctrine was designed, the court held that it was

unnecessary to decide whether the statute would survive a "strict

scrutiny" analysis because, in any event, the discrimination embodied in

the statute was not supported by a rational basis.  Id. at 585.  The

District Court also concluded that the Texas statute violated the

Supremacy Clause.  Id. at 590-592.



The Court of Appeals for the Fifth Circuit upheld the District Court's

injunction.  628 F.2d 448 (1980).  The Court of Appeals held that the

District Court had erred in finding the Texas statute preempted by

federal law.  With respect to [457 U.S. 209] equal protection, however,

the Court of Appeals affirmed in all essential respects the analysis of

the District Court, id. at 454-458, concluding that  21.031 was

"constitutionally infirm regardless of whether it was tested using the

mere rational basis standard or some more stringent test," id. at 458. 

We noted probable jurisdiction. 451 U.S. 968 (1981). No. 8194 In re

Alien Children Education Litigation



During 1978 and 1979, suits challenging the constitutionality of 21.031

and various local practices undertaken on the authority of that

provision were filed in the United States District Courts for the

Southern, Western, and Northern Districts of Texas.  Each suit named the

State of Texas and the Texas Education Agency as defendants, along with

local officials.  In November, 1979, the Judicial Panel on Multidistrict

Litigation, on motion of the State, consolidated the claims against the

state officials into a single action to be heard in the District Court

for the Southern District of Texas.  A hearing was conducted in February

and March, 1980.  In July, 1980, the court entered an opinion and order

holding that  21.031 violated the Equal Protection Clause of the

Fourteenth Amendment.  In re Alien Children Education Litigation, 501

F.Supp. 544.  The court held that the absolute deprivation of education

should trigger strict judicial scrutiny, particularly when the absolute

deprivation is the result of complete inability to pay for the desired

benefit. Id. at 582.  The court determined that the State's concern for

fiscal integrity was not a compelling state interest, id. at 582-583;

that exclusion of these children had not been shown to be necessary to

improve education within the State, id. at 583; and that the educational

needs of the children statutorily excluded were not different from the

needs of children not excluded, ibid.  The court therefore concluded

that [457 U.S. 210]  21.031 was not carefully tailored to advance the

asserted state interest in an acceptable manner. Id. at 583-584.  While

appeal of the District Court's decision was pending, the Court of

Appeals rendered its decision in No. 80-1538. Apparently on the strength

of that opinion, the Court of Appeals, on February 23, 1981, summarily

affirmed the decision of the Southern District.  We noted probable

jurisdiction, 452 U.S. 937 (1981), and consolidated this case with No.

80-1538 for briefing and argument. II



The Fourteenth Amendment provides that [n]o State shall . . . deprive

any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of

the laws. (Emphasis added.)  Appellants argue at the outset that

undocumented aliens, because of their immigration status, are not

"persons within the jurisdiction" of the State of Texas, and that they

therefore have no right to the equal protection of Texas law.  We reject

this argument.  Whatever his status under the immigration laws, an alien

is surely a "person" in any ordinary sense of that term.  Aliens, even

aliens whose presence in this country is unlawful, have long been

recognized as "persons" guaranteed due process of law by the Fifth and

Fourteenth Amendments.  Shaughnessv v. Mezei, 345 U.S. 206, 212 (1953);

Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yick Wo v.

Hopkins, 118 U.S. 356, 369 (1886).  Indeed, we have clearly held that

the Fifth Amendment protects aliens whose presence in this country is

unlawful from invidious discrimination by the Federal Government.

Mathews v. Diaz, 426 U.S. 67, 77 (1976). [457 U.S. 211]



Appellants seek to distinguish our prior cases, emphasizing that the

Equal Protection Clause directs a State to afford its protection to

persons within its jurisdiction, while the Due Process Clauses of the

Fifth and Fourteenth Amendments contain no such assertedly limiting

phrase.  In appellants' view, persons who have entered the United States

illegally are not "within the jurisdiction" of a State even if they are

present within a State's boundaries and subject to its laws.  Neither

our cases nor the logic of the Fourteenth Amendment support that

constricting construction of the phrase "within its

jurisdiction."{10}  We have never suggested that the class of persons

who might avail themselves of the equal protection guarantee is less

than coextensive with that entitled to due process.  To the contrary, we

have recognized [457 U.S. 212] that both provisions were fashioned to

protect an identical class of persons, and to reach every exercise of

state authority.



The Fourteenth Amendment to the Constitution is not confined to the

protection of citizens.  It says: Nor shall any state deprive any person

of life, liberty, or property without due process of law; nor deny to

any person within its jurisdiction the equal protection of the laws.

These provisions are universal in their application, to all persons

within the territorial jurisdiction, without regard to any differences

of race, of color, or of nationality, and the protection of the laws is

a pledge of the protection of equal laws. Yick Wo, supra, at 369

(emphasis added).



In concluding that "all persons within the territory of the United

States," including aliens unlawfully present, may invoke the Fifth and

Sixth Amendments to challenge actions of the Federal Government, we

reasoned from the understanding that the Fourteenth Amendment was

designed to afford its protection to all within the boundaries of a

State.  Wong Wing, supra, at 238.{11}  Our cases applying the Equal

Protection Clause reflect the same territorial theme:{12} [457 U.S.

213] Manifestly, the obligation of the State to give the protection of

equal laws can be performed only where its laws operate, that is, within

its own jurisdiction.  It is there that the equality of legal right must

be maintained.  That obligation is imposed by the Constitution upon the

States severally as governmental entities, each responsible for its own

laws establishing the rights and duties of persons within its borders.

Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350 (1938).



There is simply no support for appellants' suggestion that "due process"

is somehow of greater stature than "equal protection," and therefore

available to a larger class of persons.  To the contrary, each aspect of

the Fourteenth Amendment reflects an elementary limitation on state

power.  To permit a State to employ the phrase "within its jurisdiction"

in order to identify subclasses of persons whom it would define as

beyond its jurisdiction, thereby relieving itself of the obligation to

assure that its laws are designed and applied equally to those persons,

would undermine the principal purpose for which the Equal Protection

Clause was incorporated in the Fourteenth Amendment.  The Equal

Protection Clause was intended to work nothing less than the abolition

of all caste-based and invidious class-based legislation.  That

objective is fundamentally at odds with the power the State asserts here

to classify persons subject to its laws as nonetheless excepted from its

protection. [457 U.S. 214]



Although the congressional debate concerning  1 of the Fourteenth

Amendment was limited, that debate clearly confirms the understanding

that the phrase "within its jurisdiction" was intended in a broad sense

to offer the guarantee of equal protection to all within a State's

boundaries, and to all upon whom the State would impose the obligations

of its laws.  Indeed, it appears from those debates that Congress, by

using the phrase "person within its jurisdiction," sought expressly to

ensure that the equal protection of the laws was provided to the alien

population.  Representative Bingham reported to the House the draft

resolution of the Joint Committee of Fifteen on Reconstruction (H.R. 63)

that was to become the Fourteenth Amendment.{13}  Cong.Globe, 39th

Cong., 1st Sess., 1033 (1866).  Two days later, Bingham posed the

following question in support of the resolution:



Is it not essential to the unity of the people that the citizens of each

State shall be entitled to all the privileges and immunities of citizens

in the several States?  Is it not essential to the unity of the

Government and the unity of the people that all persons, whether

citizens or strangers, within this land, shall have equal protection in

every State in this Union in the rights of life and liberty and

property? Id. at 1090.



Senator Howard, also a member of the Joint Committee of Fifteen, and the

floor manager of the Amendment in the Senate, was no less explicit about

the broad objectives of the Amendment, and the intention to make its

provisions applicable to all who "may happen to be" within the

jurisdiction of a State: [457 U.S. 215]



The last two clauses of the first section of the amendment disable a

State from depriving not merely a citizen of the United States, but any

person, whoever he may be, of life, liberty, or property without due

process of law, or from denying to him the equal protection of the laws

of the State.  This abolishes all class legislation in the States and

does away with the injustice of subjecting one caste of persons to a

code not applicable to another. . . .  It will, if adopted by the

States, forever disable every one of them from passing laws trenching

upon those fundamental rights and privileges which pertain to citizens

of the United States, and to all person who may happen to be within

their jurisdiction. Id. at 2766 (emphasis added).



Use of the phrase "within its jurisdiction" thus does not detract from,

but rather confirms, the understanding that the protection of the

Fourteenth Amendment extends to anyone, citizen or stranger, who is

subject to the laws of a State, and reaches into every corner of a

State's territory.  That a person's initial entry into a State, or into

the United States, was unlawful, and that he may for that reason be

expelled, cannot negate the simple fact of his presence within the

State's territorial perimeter.  Given such presence, he is subject to

the full range of obligations imposed by the State's civil and criminal

laws.  And until he leaves the jurisdiction -- either voluntarily, or

involuntarily in accordance with the Constitution and laws of the United

States -- he is entitled to the equal protection of the laws that a

State may choose to establish.



Our conclusion that the illegal aliens who are plaintiffs in these cases

may claim the benefit of the Fourteenth Amendment's guarantee of equal

protection only begins the inquiry.  The more difficult question is

whether the Equal Protection Clause has been violated by the refusal of

the State of Texas to reimburse local school boards for the education of

children who cannot demonstrate that their presence within the [457 U.S.

216] United States is lawful, or by the imposition by those school

boards of the burden of tuition on those children.  It is to this

question that we now turn. III



The Equal Protection Clause directs that "all persons similarly

circumstanced shall be treated alike."  F. S. Royster Guano Co. v.

Virginia, 253 U.S. 412, 415 (1920).  But so too, "[t]he Constitution

does not require things which are different in fact or opinion to be

treated in law as though they were the same."  Tigner v. Texas, 310 U.S.

141, 147 (1940).  The initial discretion to determine what is

"different" and what is "the same" resides in the legislatures of the

States.  A legislature must have substantial latitude to establish

classifications that roughly approximate the nature of the problem

perceived, that accommodate competing concerns both public and private,

and that account for limitations on the practical ability of the State

to remedy every ill.  In applying the Equal Protection Clause to most

forms of state action, we thus seek only the assurance that the

classification at issue bears some fair relationship to a legitimate

public purpose.



But we would not be faithful to our obligations under the Fourteenth

Amendment if we applied so deferential a standard to every

classification.  The Equal Protection Clause was intended as a

restriction on state legislative action inconsistent with elemental

constitutional premises.  Thus, we have treated as presumptively

invidious those classifications that disadvantage a "suspect

class,"{14} or that impinge upon [457 U.S. 217] the exercise of a

"fundamental right."{15}  With respect to such classifications, it is

appropriate to enforce the mandate of equal protection by requiring the

State to demonstrate that its classification has been precisely tailored

to serve a compelling governmental interest.  In addition, we have

recognized that certain forms of legislative classification, while not

facially invidious, nonetheless give rise to recurring constitutional

difficulties; in these limited circumstances, we have sought the

assurance that the classification reflects a reasoned judgment

consistent with the ideal of equal protection by inquiring whether it

may fairly be viewed as furthering a [457 U.S. 218] substantial interest

of the State.{16}  We turn to a consideration of the standard

appropriate for the evaluation of  21.031. A



Sheer incapability or lax enforcement of the laws barring entry into

this country, coupled with the failure to establish an effective bar to

the employment of undocumented aliens, has resulted in the creation of a

substantial "shadow population" of illegal migrants -- numbering in the

millions -- within our borders.{17}  This situation raises the

specter of a permanent [457 U.S. 219] caste of undocumented resident

aliens, encouraged by some to remain here as a source of cheap labor,

but nevertheless denied the benefits that our society makes available to

citizens and lawful residents.{18}  The existence of such an

underclass presents most difficult problems for a Nation that prides

itself on adherence to principles of equality under law.{19}



The children who are plaintiffs in these cases are special members of

this underclass.  Persuasive arguments support the view that a State may

withhold its beneficence from those whose very presence within the

United States is the product of their own unlawful conduct.  These

arguments do not apply [457 U.S. 220] with the same force to

classifications imposing disabilities on the minor children of such

illegal entrants.  At the least, those who elect to enter our territory

by stealth and in violation of our law should be prepared to bear the

consequences, including, but not limited to, deportation.  But the

children of those illegal entrants are not comparably situated.  Their

"parents have the ability to conform their conduct to societal norms,"

and presumably the ability to remove themselves from the State's

jurisdiction; but the children who are plaintiffs in these cases "can

affect neither their parents' conduct nor their own status."  Trimble

v. Gordon, 430 U.S. 762, 770 (1977).  Even if the State found it

expedient to control the conduct of adults by acting against their

children, legislation directing the onus of a parent's misconduct

against his children does not comport with fundamental conceptions of

justice. [V]isiting . . . condemnation on the head of an infant is

illogical and unjust.  Moreover, imposing disabilities on the . . .

child is contrary to the basic concept of our system that legal burdens

should bear some relationship to individual responsibility or

wrongdoing.  Obviously, no child is responsible for his birth, and

penalizing the . . . child is an ineffectual -- as well as unjust -- way

of deterring the parent. Weber v. Aetna Casualty & Surety Co., 406

U.S. 164, 175 (1972) (footnote omitted).



Of course, undocumented status is not irrelevant to any proper

legislative goal.  Nor is undocumented status an absolutely immutable

characteristic, since it is the product of conscious, indeed unlawful,

action.  But  21.031 is directed against children, and imposes its

discriminatory burden on the basis of a legal characteristic over which

children can have little control.  It is thus difficult to conceive of a

rational justification for penalizing these children for their presence

within the United States.  Yet that appears to be precisely the effect

of  21.031. [457 U.S. 221]



Public education is not a "right" granted to individuals by the

Constitution.  San Antonio Independent School Dist. v. Rodriguez, 411

U.S. 1, 35 (1973).  But neither is it merely some governmental

"benefit" indistinguishable from other forms of social welfare

legislation.  Both the importance of education in maintaining our basic

institutions and the lasting impact of its deprivation on the life of

the child mark the distinction.  The "American people have always

regarded education and [the] acquisition of knowledge as matters of

supreme importance."  Meyer v. Nebraska, 262 U.S. 390, 400 (1923).

We have recognized "the public schools as a most vital civic institution

for the preservation of a democratic system of government," Abington

School District v. Schempp, 374 U.S. 203, 230 (1963) (BRENNAN, J.,

concurring), and as the primary vehicle for transmitting "the values on

which our society rests."  Ambach v. Norwick, 441 U.S. 68, 76

(1979). [A]s . . . pointed out early in our history, . . . some degree

of education is necessary to prepare citizens to participate effectively

and intelligently in our open political system if we are to preserve

freedom and independence. Wisconsin v. Yoder, 406 U.S. 205, 221

(1972).  And these historic perceptions of the public schools as

inculcating fundamental values necessary to the maintenance of a

democratic political system have been confirmed by the observations of

social scientists. Ambach v. Norwick, supra, at 77.  In addition,

education provides the basic tools by which individuals might lead

economically productive lives to the benefit of us all.  In sum,

education has a fundamental role in maintaining the fabric of our

society.  We cannot ignore the significant social costs borne by our

Nation when select groups are denied the means to absorb the values and

skills upon which our social order rests.



In addition to the pivotal role of education in sustaining our political

and cultural heritage, denial of education to some isolated group of

children poses an affront to one of the goals [457 U.S. 222] of the

Equal Protection Clause:  the abolition of governmental barriers

presenting unreasonable obstacles to advancement on the basis of

individual merit.  Paradoxically, by depriving the children of any

disfavored group of an education, we foreclose the means by which that

group might raise the level of esteem in which it is held by the

majority.  But more directly, "education prepares individuals to be

self-reliant and self-sufficient participants in society."  Wisconsin v.

Yoder, supra, at 221.  Illiteracy is an enduring disability.  The

inability to read and write will handicap the individual deprived of a

basic education each and every day of his life.  The inestimable toll of

that deprivation on the social, economic, intellectual, and

psychological wellbeing of the individual, and the obstacle it poses to

individual achievement, make it most difficult to reconcile the cost or

the principle of a status-based denial of basic education with the

framework of equality embodied in the Equal Protection Clause.{20}

What we said 28 years ago in Brown v. Board of Education, 347 U.S.

483 (1954), still holds true:



Today, education is perhaps the most important function of state and

local governments.  Compulsory school [457 U.S. 223] attendance laws and

the great expenditures for education both demonstrate our recognition of

the importance of education to our democratic society.  It is required

in the performance of our most basic public responsibilities, even

service in the armed forces.  It is the very foundation of good

citizenship.  Today it is a principal instrument in awakening the child

to cultural values, in preparing him for later professional training,

and in helping him to adjust normally to his environment.  In these

days, it is doubtful that any child may reasonably be expected to

succeed in life if he is denied the opportunity of an education.  Such

an opportunity, where the state has undertaken to provide it, is a right

which must be made available to all on equal terms. Id. at 493. B



These well-settled principles allow us to determine the proper level of

deference to be afforded  21.031.  Undocumented aliens cannot be treated

as a suspect class, because their presence in this country in violation

of federal law is not a "constitutional irrelevancy."  Nor is education

a fundamental right; a State need not justify by compelling necessity

every variation in the manner in which education is provided to its

population.  See San Antonio Independent School Dist. v. Rodriguez,

supra, at 28-39.  But more is involved in these cases than the

abstract question whether  21.031 discriminates against a suspect class,

or whether education is a fundamental right.  Section 21.031 imposes a

lifetime hardship on a discrete class of children not accountable for

their disabling status.  The stigma of illiteracy will mark them for the

rest of their lives.  By denying these children a basic education, we

deny them the ability to live within the structure of our civic

institutions, and foreclose any realistic possibility that they will

contribute in even the smallest way to the progress of our Nation.  In

determining [457 U.S. 224] the rationality of  21. 031, we may

appropriately take into account its costs to the Nation and to the

innocent children who are its victims.  In light of these countervailing

costs, the discrimination contained in  21.031 can hardly be considered

rational unless it furthers some substantial goal of the State. IV



It is the State's principal argument, and apparently the view of the

dissenting Justices, that the undocumented status of these children vel

non establishes a sufficient rational basis for denying them benefits

that a State might choose to afford other residents.  The State notes

that, while other aliens are admitted "on an equality of legal

privileges with all citizens under nondiscriminatory laws," Takahashi

v. Fish & Game Comm'n, 334 U.S. 410, 420 (1948), the asserted right of

these children to an education can claim no implicit congressional

imprimatur.{21}  Indeed, in the State's view, Congress' apparent

disapproval of the presence of these children within the United States,

and the evasion of the federal regulatory program that is the mark of

undocumented status, provides authority for its decision to impose upon

them special disabilities.  Faced with an equal protection challenge

respecting the treatment of aliens, we agree that the courts must be

attentive to congressional policy; the exercise of congressional power

might well affect the State's prerogatives to afford differential

treatment to a particular class of aliens.  But we are unable to find in

the congressional immigration scheme any statement of policy that might

weigh significantly [457 U.S. 225] in arriving at an equal protection

balance concerning the State's authority to deprive these children of an

education.



The Constitution grants Congress the power to "establish an uniform Rule

of Naturalization."  Art. I.,  8, cl. 4.  Drawing upon this power, upon

its plenary authority with respect to foreign relations and

international commerce, and upon the inherent power of a sovereign to

close its borders, Congress has developed a complex scheme governing

admission to our Nation and status within our borders.  See Mathews

v. Diaz, 426 U.S. 67 (1976); Harisiades v. Shaughnessy, 342 U.S. 580,

588-589 (1952).  The obvious need for delicate policy judgments has

counseled the Judicial Branch to avoid intrusion into this field.

Mathews, supra, at 81.  But this traditional caution does not

persuade us that unusual deference must be shown the classification

embodied in  21.031.  The States enjoy no power with respect to the

classification of aliens.  See Hines v. Davidowitz, 312 U.S. 52

(1941).  This power is "committed to the political branches of the

Federal Government."  Mathews, 426 U.S. at 81.  Although it is "a

routine and normally legitimate part" of the business of the Federal

Government to classify on the basis of alien status, id. at 85, and

to "take into account the character of the relationship between the

alien and this country," id. at 80, only rarely are such matters

relevant to legislation by a State.  See Id. at 84-85; Nyquist v.

Mauclet, 432 U.S. 1, 7, n. 8 (1977)



As we recognized in De Canas v. Bica, 424 U.S. 351 (1976), the States

do have some authority to act with respect to illegal aliens, at least

where such action mirrors federal objectives and furthers a legitimate

state goal.  In De Canas, the State's program reflected Congress'

intention to bar from employment all aliens except those possessing a

grant of permission to work in this country.  Id. at 361.  In

contrast, there is no indication that the disability imposed by  21.031

corresponds to any identifiable congressional policy.  The [457 U.S.

226] State does not claim that the conservation of state educational

resources was ever a congressional concern in restricting immigration.

More importantly, the classification reflected in  21.031 does not

operate harmoniously within the federal program.



To be sure, like all persons who have entered the United States

unlawfully, these children are subject to deportation.  8 U.S.C.  1251,

1252 (1976 ed. and Supp. IV).  But there is no assurance that a child

subject to deportation will ever be deported.  An illegal entrant might

be granted federal permission to continue to reside in this country, or

even to become a citizen.  See, e.g., 8 U.S.C.  1252, 1253(h), 1254

(1976 ed. and Supp. IV).  In light of the discretionary federal power to

grant relief from deportation, a State cannot realistically determine

that any particular undocumented child will in fact be deported until

after deportation proceedings have been completed.  It would, of course,

be most difficult for the State to justify a denial of education to a

child enjoying an inchoate federal permission to remain.



We are reluctant to impute to Congress the intention to withhold from

these children, for so long as they are present in this country through

no fault of their own, access to a basic education.  In other contexts,

undocumented status, coupled with some articulable federal policy, might

enhance state authority with respect to the treatment of undocumented

aliens.  But in the area of special constitutional sensitivity presented

by these cases, and in the absence of any contrary indication fairly

discernible in the present legislative record, we perceive no national

policy that supports the State in denying these children an elementary

education.  The State may borrow the federal classification.  But to

justify its use as a criterion for its own discriminatory policy, the

State must demonstrate that the classification is reasonably adapted to

"the purposes for which the state desires to use it."  Oyama v.

California, 332 U.S. 633, 664-665 (1948) (Murphy, J., concurring)

(emphasis added).  We therefore turn to the state objectives that are

said to support  21.031. [457 U.S. 227] V



Appellants argue that the classification at issue furthers an interest

in the "preservation of the state's limited resources for the education

of its lawful residents."{22}  Brief for Appellants 26.  Of course, a

concern for the preservation of resources, standing alone, can hardly

justify the classification used in allocating those resources. Graham

v. Richardson, 403 U.S. 365, (1971).  The State must do more

than justify its classification with a concise expression of an

intention to discriminate.  Examining Board v. Flores de Otero, 426

U.S. 572, 605 (1976).  Apart from the asserted state prerogative to

act against undocumented children solely on the basis of their

undocumented status -- an asserted prerogative that carries only minimal

force in the circumstances of these cases -- we discern three colorable

state interests that might support  21.031. [457 U.S. 228]



First, appellants appear to suggest that the State may seek to protect

itself from an influx of illegal immigrants.  While a State might have

an interest in mitigating the potentially harsh economic effects of

sudden shifts in population,{23}  21.031 hardly offers an effective

method of dealing with an urgent demographic or economic problem.  There

is no evidence in the record suggesting that illegal entrants impose any

significant burden on the State's economy.  To the contrary, the

available evidence suggests that illegal aliens underutilize public

services, while contributing their labor to the local economy and tax

money to the state fisc.  458 F.Supp. at 578; 501 F.Supp. at 570-571.

The dominant incentive for illegal entry into the State of Texas is the

availability of employment; few if any illegal immigrants come to this

country, or presumably to the State of Texas, in order to avail

themselves of a free education.{24}  Thus, even making the doubtful

assumption that the net impact of illegal aliens on the economy of the

State is negative, we think it clear that "[c]harging tuition to

undocumented children constitutes a ludicrously ineffectual attempt to

stem the tide of illegal immigration," at least when compared with the

alternative of [457 U.S. 229] prohibiting the employment of illegal

aliens.  458 F.Supp. at 585.  See 628 F.2d at 461; 501 F.Supp. at 579,

and n. 88.



Second, while it is apparent that a State may "not . . . reduce

expenditures for education by barring [some arbitrarily chosen class of]

children from its schools," Shapiro v. Thompson, 394 U.S. 618, 633

(1969), appellants suggest that undocumented children are appropriately

singled out for exclusion because of the special burdens they impose on

the State's ability to provide high-quality public education.  But the

record in no way supports the claim that exclusion of undocumented

children is likely to improve the overall quality of education in the

State.{25}  As the District Court in No. 801934 noted, the State

failed to offer any credible supporting evidence that a proportionately

small diminution of the funds spent on each child [which might result

from devoting some state funds to the education of the excluded group]

will have a grave impact on the quality of education. 501 F.Supp. at

583.  And, after reviewing the State's school financing mechanism, the

District Court in No. 80-1538 concluded that barring undocumented

children from local schools would not necessarily improve the quality of

education provided in those schools.  458 F.Supp. at 577.  Of course,

even if improvement in the quality of education were a likely result of

barring some number of children from the schools of the State, the State

must support its selection of this group as the appropriate target for

exclusion.  In terms of educational cost and need, however, undocumented

children are "basically indistinguishable" from legally resident alien

children.  Id. at 589; 501 F.Supp. at 583, and n. 104.



Finally, appellants suggest that undocumented children are appropriately

singled out because their unlawful presence [457 U.S. 230] within the

United States renders them less likely than other children to remain

within the boundaries of the State, and to put their education to

productive social or political use within the State.  Even assuming that

such an interest is legitimate, it is an interest that is most difficult

to quantify.  The State has no assurance that any child, citizen or not,

will employ the education provided by the State within the confines of

the State's borders.  In any event, the record is clear that many of the

undocumented children disabled by this classification will remain in

this country indefinitely, and that some will become lawful residents or

citizens of the United States.  It is difficult to understand precisely

what the State hopes to achieve by promoting the creation and

perpetuation of a subclass of illiterates within our boundaries, surely

adding to the problems and costs of unemployment, welfare, and crime. It

is thus clear that whatever savings might be achieved by denying these

children an education, they are wholly insubstantial in light of the

costs involved to these children, the State, and the Nation. VI



If the State is to deny a discrete group of innocent children the free

public education that it offers to other children residing within its

borders, that denial must be justified by a showing that it furthers

some substantial state interest.  No such showing was made here.

Accordingly, the judgment of the Court of Appeals in each of these cases

is



Affirmed. MARSHALL, J., concurring



JUSTICE MARSHALL, concurring.



While I join the Court opinion, I do so without in any way retreating

from my opinion in San Antonio Independent School District v.

Rodriguez, 411 U.S. 1, 70-133 (1973) (dissenting opinion).  I

continue to believe that an individual's interest in education is

fundamental, and that this view is amply supported by the unique status

accorded public education by our society, and by the close relationship

between education and some of our most basic constitutional values. [457

U.S. 231] Id. at 111.  Furthermore, I believe that the facts of these

cases demonstrate the wisdom of rejecting a rigidified approach to equal

protection analysis, and of employing an approach that allows for

varying levels of scrutiny depending upon the constitutional and

societal importance of the interest adversely affected and the

recognized invidiousness of the basis upon which the particular

classification is drawn. Id. at 99.  See also Dandridge v.

Williams, 397 U.S. 471, (1970) (MARSHALL, J., dissenting). It

continues to be my view that a class-based denial of public education is

utterly incompatible with the Equal Protection Clause of the Fourteenth

Amendment. BLACKMUN, J., concurring



JUSTICE BLACKMUN, concurring.



I join the opinion and judgment of the Court.



Like JUSTICE POWELL, I believe that the children involved in this

litigation "should not be left on the streets uneducated."  Post at

238.  I write separately, however, because, in my view, the nature of

the interest at stake is crucial to the proper resolution of these

cases.



The "fundamental rights" aspect of the Court's equal protection analysis

-- the now-familiar concept that governmental classifications bearing on

certain interests must be closely scrutinized -- has been the subject of

some controversy.  Justice Harlan, for example, warned that [v]irtually

every state statute affects important rights. . . .  [T]o extend the

"compelling interest" rule to all cases in which such rights are

affected would go far toward making this Court a "superlegislature."

Shapiro v. Thompson, 394 U.S. 618, 661 (1969) (dissenting

opinion).  Others have noted that strict scrutiny under the Equal

Protection Clause is unnecessary when classifications infringing

enumerated constitutional rights are involved, for a state law that

impinges upon a substantive right or liberty created or conferred by the

Constitution is, of course, presumptively invalid, whether or not the

law's purpose or effect is to create any classifications. San Antonio

[457 U.S. 232] Independent School Dist. v. Rodriguez, 411 U.S. 1, 61

(1973) (Stewart, J., concurring).  See Shapiro v. Thompson, 394 U.S. at

659 (Harlan, J., dissenting).  Still others have suggested that

fundamental rights are not properly a part of equal protection analysis

at all, because they are unrelated to any defined principle of equality.



These considerations, combined with doubts about the judiciary's ability

to make fine distinctions in assessing the effects of complex social

policies, led the Court in Rodriguez to articulate a firm rule:

fundamental rights are those that "explicitly or implicitly [are]

guaranteed by the Constitution."  411 U.S. at 33-34.  It therefore

squarely rejected the notion that "an ad hoc determination as to the

social or economic importance" of a given interest is relevant to the

level of scrutiny accorded classifications involving that interest, id.

at 32, and made clear that "[i]t is not the province of this Court to

create substantive constitutional rights in the name of guaranteeing

equal protection of the laws."  Id. at 33.



I joined JUSTICE POWELL's opinion for the Court in Rodriguez, and I

continue to believe that it provides the appropriate model for resolving

most equal protection disputes.  Classifications infringing substantive

constitutional rights necessarily will be invalid, if not by force of

the Equal Protection Clause, then through operation of other provisions

of the Constitution.  Conversely, classifications bearing on

nonconstitutional interests -- even those involving "the most basic

economic needs of impoverished human beings," Dandridge v. Williams,

397 U.S. 471, 485 (1970) -- generally are not subject to special

treatment under the Equal Protection Clause, because they are not

distinguishable in any relevant way from other regulations in "the area

of economics and social welfare."  Ibid.



With all this said, however, I believe the Court's experience has

demonstrated that the Rodriguez formulation does [457 U.S. 233] not

settle every issue of "fundamental rights" arising under the Equal

Protection Clause.  Only a pedant would insist that there are no

meaningful distinctions among the multitude of social and political

interests regulated by the States, and Rodriguez does not stand for

quite so absolute a proposition.  To the contrary, Rodriguez implicitly

acknowledged that certain interests, though not constitutionally

guaranteed, must be accorded a special place in equal protection

analysis.  Thus, the Court's decisions long have accorded strict

scrutiny to classifications bearing on the right to vote in state

elections, and Rodriguez confirmed the "constitutional underpinnings of

the right to equal treatment in the voting process."  411 U.S. at 34,

n. 74.  Yet "the right to vote, per se, is not a constitutionally

protected right," id. at 35, n. 78.  See Harper v. Virginia Board

of Elections, 383 U.S. 663, 665 (1966); Rodriguez, 411 U.S. at 59,

n. 2 (Stewart, J., concurring).  Instead, regulation of the electoral

process receives unusual scrutiny because "the right to exercise the

franchise in a free and unimpaired manner is preservative of other basic

civil and political rights."  Reynolds v. Sims, 377 U.S. 533, 562

(1964).  See Dunn v. Blumstein, 405 U.S. 330, 336 (1972).  In

other words, the right to vote is accorded extraordinary treatment

because it is, in equal protection terms, an extraordinary right:  a

citizen cannot hope to achieve any meaningful degree of individual

political equality if granted an inferior right of participation in the

political process.  Those denied the vote are relegated, by state fiat,

in a most basic way to second-class status.



It is arguable, of course, that the Court never should have applied

fundamental rights doctrine in the fashion outlined above.  Justice

Harlan, for one, maintained that strict equal protection scrutiny was

appropriate only when racial or analogous [457 U.S. 234] classifications

were at issue.  Shapiro v. Thompson, 394 U.S. at (dissenting

opinion).  See Reynolds v. Sims, 377 U.S. at (Harlan, J.,

dissenting).  But it is too late to debate that point, and I believe

that accepting the principle of the voting cases -- the idea that state

classifications bearing on certain interests pose the risk of allocating

rights in a fashion inherently contrary to any notion of "equality" --

dictates the outcome here.  As both JUSTICE POWELL and THE CHIEF JUSTICE

observe, the Texas scheme inevitably will create "a subclass of

illiterate persons," post at 241 (POWELL, J., concurring); see post

at 242, 254 (BURGER, C.J., dissenting); where I differ with THE

CHIEF JUSTICE is in my conclusion that this makes the statutory scheme

unconstitutional, as well as unwise.



In my view, when the State provides an education to some and denies it

to others, it immediately and inevitably creates class distinctions of a

type fundamentally inconsistent with those purposes, mentioned above, of

the Equal Protection Clause.  Children denied an education are placed at

a permanent and insurmountable competitive disadvantage, for an

uneducated child is denied even the opportunity to achieve.  And when

those children are members of an identifiable group, that group --

through the State's action -- will have been converted into a discrete

underclass.  Other benefits provided by the State, such as housing and

public assistance, are, of course, important; to an individual in

immediate need, they may be more desirable than the right to be

educated.  But classifications involving the complete denial of

education are, in a sense, unique, for they strike at the heart of equal

protection values by involving the State in the creation of permanent

class distinctions.  Cf. Rodriguez, 411 U.S. at 115, n. 74 (MARSHALL,

J., dissenting).  In a sense, then, denial of an education is the

analogue of denial of the right to vote:  the former relegates the

individual to second-class social status; the latter places him at a

permanent political disadvantage. [457 U.S. 235]



This conclusion is fully consistent with Rodriguez.  The Court there

reserved judgment on the constitutionality of a state system that

"occasioned an absolute denial of educational opportunities to any of

its children," noting that no charge fairly could be made that the

system [at issue in Rodriguez] fails to provide each child with an

opportunity to acquire . . . basic minimal skills. Id. at 37.  And it

cautioned that, in a case involv[ing] the most persistent and difficult

questions of educational policy, . . . [the] Court's lack of specialized

knowledge and experience counsels against premature interference with

the informed judgments made at the state and local levels. Id. at 42.

Thus Rodriguez held, and the Court now reaffirms, that "a State need not

justify by compelling necessity every variation in the manner in which

education is provided to its population."  Ante at 223. Similarly, it

is undeniable that education is not a "fundamental right" in the sense

that it is constitutionally guaranteed.  Here, however, the State has

undertaken to provide an education to most of the children residing

within its borders.  And, in contrast to the situation in Rodriguez, it

does not take an advanced degree to predict the effects of a complete

denial of education upon those children targeted by the State's

classification.  In such circumstances, the voting decisions suggest

that the State must offer something more than a rational basis for its

classification.



Concededly, it would seem ironic to discuss the social necessity of an

education in a case that concerned only undocumented aliens "whose very

presence in the state and this country is illegal."  Post at 250

(BURGER, C.J., dissenting).  But because of the nature of the federal

immigration laws and the preeminent role of the Federal Government in

[457 U.S. 236] regulating immigration, the class of children here is not

a monolithic one.  Thus, the District Court in the Alien Children

Education case found as a factual matter that a significant number of

illegal aliens will remain in this country permanently, 501 F.Supp. 544,

558-559 (SD Tex.1980); that some of the children involved in this

litigation are "documentable," id. at 573; and that "[m]any of the

undocumented children are not deportable.  None of the named plaintiffs

is under an order of deportation."  Id. at 583, n. 103.  As the Court's

alienage cases demonstrate, these children may not be denied rights that

are granted to citizens, excepting only those rights bearing on

political interests.  See Nyquist v. Mauclet, 432 U.S. 1 (1977). And,

as JUSTICE POWELL notes, the structure of the immigration statutes makes

it impossible for the State to determine which aliens are entitled to

residence, and which eventually will be deported.  Post at 

n. 6.  Indeed, any attempt to do so would involve the State in the

administration of the immigration laws.  Whatever the State's power to

classify deportable aliens, then -- and whatever the Federal

Government's ability to draw more precise and more acceptable alienage

classifications -- the statute at issue here sweeps within it a

substantial number of children who will in fact, and who may well be

entitled to, remain in the United States.  Given the extraordinary

nature of the interest involved, this makes the classification here

fatally imprecise.  And, as the Court demonstrates, the Texas

legislation is not otherwise supported by any substantial interests.



Because I believe that the Court's carefully worded analysis recognizes

the importance of the equal protection and preemption interests I

consider crucial, I join its opinion as well as its judgment. POWELL,

J., concurring



JUSTICE POWELL, concurring.



I join the opinion of the Court, and write separately to emphasize the

unique character of the cases before us. [457 U.S. 237]



The classification in question severely disadvantages children who are

the victims of a combination of circumstances.  Access from Mexico into

this country, across our 2,000-mile border, is readily available and

virtually uncontrollable.  Illegal aliens are attracted by our

employment opportunities, and perhaps by other benefits as well.  This

is a problem of serious national proportions, as the Attorney General

recently has recognized.  See ante at  n. 17.  Perhaps

because of the intractability of the problem, Congress -- vested by the

Constitution with the responsibility of protecting our borders and

legislating with respect to aliens -- has not provided effective

leadership in dealing with this problem.  It therefore is certain that

illegal aliens will continue [457 U.S. 238] to enter the United States

and, as the record makes clear, an unknown percentage of them will

remain here.  I agree with the Court that their children should not be

left on the streets uneducated.



Although the analogy is not perfect, our holding today does find support

in decisions of this Court with respect to the status of illegitimates.

In Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972),

we said:  "[V]isiting . . . condemnation on the head of an infant" for

the misdeeds of the parents is illogical, unjust, and "contrary to the

basic concept of our system that legal burdens should bear some

relationship to individual responsibility or wrongdoing."



In these cases, the State of Texas effectively denies to the school-age

children of illegal aliens the opportunity to attend the free public

schools that the State makes available to all residents.  They are

excluded only because of a status resulting from the violation by

parents or guardians of our immigration laws and the fact that they

remain in our country unlawfully.  The appellee children are innocent in

this respect.  They can "affect neither their parents' conduct nor their

own status."  Trimble v. Gordon, 430 U.S. 762, 770 (1977)



Our review in a case such as these is properly heightened.  See id. at

767.  Cf. Craig v. Boren, 429 U.S. 190 (1976).  The classification

at issue deprives a group of children of the opportunity for education

afforded all other children simply because they have been assigned a

legal status due to a violation of law by their parents. These children

thus have been [457 U.S. 239] singled out for a lifelong penalty and

stigma.  A legislative classification that threatens the creation of an

underclass of future citizens and residents cannot be reconciled with

one of the fundamental purposes of the Fourteenth Amendment.  In these

unique circumstances, the Court properly may require that the State's

interests be substantial and that the means bear a "fair and substantial

relation" to these interests.  See Lalli v. Lalli, 439 U.S. 259,

265 (1978) ("classifications based on illegitimacy . . . are invalid

under the Fourteenth Amendment if they are not substantially related to

permissible state interests"); id. at 271 ("[a]s the State's

interests are substantial, we now consider the means adopted").



In my view, the State's denial of education to these children bears no

substantial relation to any substantial state interest.  Both of the

District Courts found that an uncertain but significant percentage of

illegal alien children will remain in Texas as residents, and many

eventually will become citizens.  The discussion by the Court, ante at

Part V, of the State's purported interests demonstrates that they are

poorly served by the educational exclusion.  Indeed, the interests

relied upon by the State would seem to be insubstantial in view of the

consequences to the State itself of wholly uneducated persons living

indefinitely within its borders.  By contrast, access to the public

schools is made available to the children of lawful residents without

regard to the temporary [457 U.S. 240] nature of their residency in the

particular Texas school district.  The Court of Appeals and the District

Courts that addressed these cases concluded that the classification

could not satisfy even the bare requirements of rationality.  One need

not go so far to conclude that the exclusion of appellees' class of

children from state-provided education is a type of punitive

discrimination based on status that is impermissible under the Equal

Protection Clause.



In reaching this conclusion, I am not unmindful of what must be the

exasperation of responsible citizens and government authorities in Texas

and other States similarly situated.  Their responsibility, if any, for

the influx of aliens is slight compared to that imposed by the

Constitution on the Federal Government.  So long as the ease of entry

remains inviting, [457 U.S. 241] and the power to deport is exercised

infrequently by the Federal Government, the additional expense of

admitting these children to public schools might fairly be shared by the

Federal and State Governments.  But it hardly can be argued rationally

that anyone benefits from the creation within our borders of a subclass

of illiterate persons, many of whom will remain in the State, adding to

the problems and costs of both State and National Governments attendant

upon unemployment, welfare, and crime. [457 U.S. 242] BURGER, J.,

dissenting



CHIEF JUSTICE BURGER, with whom JUSTICE WHITE, JUSTICE REHNQUIST, and

JUSTICE O'CONNOR join, dissenting.



Were it our business to set the Nation's social policy, I would agree

without hesitation that it is senseless for an enlightened society to

deprive any children -- including illegal aliens -- of an elementary

education.  I fully agree that it would be folly -- and wrong -- to

tolerate creation of a segment of society made up of illiterate persons,

many having a limited or no command of our language.  However, the

Constitution does not constitute us as "Platonic Guardians," nor does it

vest in this Court the authority to strike down laws because they do not

meet our standards of desirable social policy, "wisdom," or "common

sense."  See TVA v. Hill, 437 U.S. 153, (1978).  We

trespass on the assigned function of the political branches under our

structure of limited and separated powers when we assume a policymaking

role as the Court does today.



The Court makes no attempt to disguise that it is acting to make up for

Congress' lack of "effective leadership" in dealing with the serious

national problems caused by the influx of uncountable millions of

illegal aliens across our borders.  [457 U.S. 243] See ante at

(POWELL, J., concurring).  The failure of enforcement of the

immigration laws over more than a decade and the inherent difficulty and

expense of sealing our vast borders have combined to create a grave

socioeconomic dilemma.  It is a dilemma that has not yet even been fully

assessed, let alone addressed.  However, it is not the function of the

Judiciary to provide "effective leadership" simply because the political

branches of government fail to do so.



The Court's holding today manifests the justly criticized judicial

tendency to attempt speedy and wholesale formulation of "remedies" for

the failures -- or simply the laggard pace -- of the political processes

of our system of government.  The Court employs, and, in my view,

abuses, the Fourteenth Amendment in an effort to become an omnipotent

and omniscient problem solver.  That the motives for doing so are noble

and compassionate does not alter the fact that the Court distorts our

constitutional function to make amends for the defaults of others. I



In a sense, the Court's opinion rests on such a unique confluence of

theories and rationales that it will likely stand for little beyond the

results in these particular cases.  Yet the extent to which the Court

departs from principled constitutional adjudication is nonetheless

disturbing.



I have no quarrel with the conclusion that the Equal Protection Clause

of the Fourteenth Amendment applies to aliens who, after their illegal

entry into this country, are indeed physically "within the jurisdiction"

of a state.  However, as the Court concedes, this "only begins the

inquiry."  Ante at 215.  The Equal Protection Clause does not mandate

identical treatment of different categories of persons.  Jefferson v.

Hackney, 406 U.S. 535, 549 (1972); Reed v. Reed, 404 U.S. 71,

75 (1971); Tigner v. Texas, 310 U.S. 141, 147-148 (1940).



The dispositive issue in these cases, simply put, is whether, for

purposes of allocating its finite resources, a state has a legitimate

reason to differentiate between persons [457 U.S. 244] who are lawfully

within the state and those who are unlawfully there.  The distinction

the State of Texas has drawn -- based not only upon its own legitimate

interests but on classifications established by the Federal Government

in its immigration laws and policies -- is not unconstitutional. A



The Court acknowledges that, except in those cases when state

classifications disadvantage a "suspect class" or impinge upon a

"fundamental right," the Equal Protection Clause permits a state

"substantial latitude" in distinguishing between different groups of

persons.  Ante at   Moreover, the Court expressly -- and

correctly -- rejects any suggestion that illegal aliens are a suspect

class, ante at 219, n.19, or that education is a fundamental right,

ante at 221, 223.  Yet by patching together bits and pieces of

what might be termed quasi-suspect-class and quasi-fundamental-rights

analysis, the Court spins out a theory custom-tailored to the facts of

these cases.



In the end, we are told little more than that the level of scrutiny

employed to strike down the Texas law applies only when illegal alien

children are deprived of a public education, see ante at   If

ever a court was guilty of an unabashedly result-oriented approach, this

case is a prime example. (1)



The Court first suggests that these illegal alien children, although not

a suspect class, are entitled to special solicitude under the Equal

Protection Clause because they lack "control" over or "responsibility"

for their unlawful entry into this country.  Ante at 220, 

Similarly, the Court appears to take the position that  21.031 is

presumptively "irrational" because it has the effect of imposing

"penalties" [457 U.S. 245] on "innocent" children.  Ibid.  See also ante

at (POWELL, J., concurring).  However, the Equal Protection

Clause does not preclude legislators from classifying among persons on

the basis of factors and characteristics over which individuals may be

said to lack "control."  Indeed, in some circumstances, persons

generally, and children in particular, may have little control over or

responsibility for such things as their ill health, need for public

assistance, or place of residence.  Yet a state legislature is not

barred from considering, for example, relevant differences between the

mentally healthy and the mentally ill, or between the residents of

different counties simply because these may be factors unrelated to

individual choice or to any "wrongdoing." The Equal Protection Clause

protects against arbitrary and irrational classifications, and against

invidious discrimination stemming from prejudice and hostility; it is

not an all-encompassing "equalizer" designed to eradicate every

distinction for which persons are not "responsible." [457 U.S. 246]



The Court does not presume to suggest that appellees' purported lack of

culpability for their illegal status prevents them from being deported

or otherwise "penalized" under federal law.  Yet would deportation be

any less a "penalty" than denial of privileges provided to legal

residents?  Illegality of presence in the United States does not -- and

need not -- depend on some amorphous concept of "guilt" or "innocence"

concerning an alien's entry.  Similarly, a state's use of federal

immigration status as a basis for legislative classification is not

necessarily rendered suspect for its failure to take such factors into

account.



The Court's analogy to cases involving discrimination against

illegitimate children -- see ante at 220; ante at (POWELL,

J., concurring) -- is grossly misleading.  The State has not thrust any

disabilities upon appellees due to their "status of birth."  Cf.

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 176 (1972).

Rather, appellees' status is predicated upon the circumstances of their

concededly illegal presence in this country, and is a direct result of

Congress' obviously valid exercise of its "broad constitutional powers"

in the field of immigration and naturalization.  U.S.Const., Art. I,  8,

Cl. 4; see Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419 (1948).

This Court has recognized that, in allocating governmental benefits to a

given class of aliens, one "may take into account the character of the

relationship between the alien and this country."  Mathews v. Diaz,

426 U.S. 67, 80 (1976).  When that "relationship" is a federally

prohibited one, there can, of course, be no presumption that a state has

a constitutional duty to include illegal aliens among the recipients of

its governmental benefits. [457 U.S. 247] (2)



The second strand of the Court's analysis rests on the premise that,

although public education is not a constitutionally guaranteed right,

"neither is it merely some governmental `benefit' indistinguishable from

other forms of social welfare legislation."  Ante at 221.  Whatever

meaning or relevance this opaque observation might have in some other

context it simply has no bearing on the issues at hand.  Indeed, it is

never made clear what the Court's opinion means on this score.



The importance of education is beyond dispute.  Yet we have held

repeatedly that the importance of a governmental service does not

elevate it to the status of a "fundamental right" for purposes of equal

protection analysis.  San Antonio Independent School Dist. v.

Rodriguez, 411 U.S. 1, 301 (1973); Lindsey v. Normet, 405 U.S. 56,

73-74 (1972).  In San Antonio Independent School Dist., supra,

JUSTICE POWELL, speaking for the Court, expressly rejected the

proposition that state laws dealing with public education are subject to

special scrutiny under the Equal Protection Clause.  Moreover, the Court

points to no meaningful way to distinguish between education and other

governmental benefits [457 U.S. 248] in this context.  Is the Court

suggesting that education is more "fundamental" than food, shelter, or

medical care?



The Equal Protection Clause guarantees similar treatment of similarly

situated persons, but it does not mandate a constitutional hierarchy of

governmental services.  JUSTICE POWELL, speaking for the Court in San

Antonio Independent School Dist., supra, at 31, put it well in

stating that, to the extent this Court raises or lowers the degree of

"judicial scrutiny" in equal protection cases according to a transient

Court majority's view of the societal importance of the interest

affected, we "assum[e] a legislative role, and one for which the Court

lacks both authority and competence."  Yet that is precisely what the

Court does today.  See also Shapiro v. Thompson, 394 U.S. 618,

(1969) (Harlan, J., dissenting).



The central question in these cases, as in every equal protection case

not involving truly fundamental rights "explicitly or implicitly

guaranteed by the Constitution," San Antonio Independent School Dist.,

supra, at 33-34, is whether there is some legitimate basis for a

legislative distinction between different classes of persons.  The fact

that the distinction is drawn in legislation affecting access to public

education -- as opposed to legislation allocating other important

governmental benefits, such as public assistance, health care, or

housing -- cannot make a difference in the level of scrutiny applied. B



Once it is conceded -- as the Court does -- that illegal aliens are not

a suspect class, and that education is not a fundamental right, our

inquiry should focus on and be limited to whether the legislative

classification at issue bears a rational relationship to a legitimate

state purpose.  Vance v. Bradley, 440 U.S. 93, 97 (1979);

Dandridge v. Williams, 397 U.S. 471, (1970); see ante at

216. [457 U.S. 249]



The State contends primarily that  21.031 serves to prevent undue

depletion of its limited revenues available for education, and to

preserve the fiscal integrity of the State's school-financing system

against an ever-increasing flood of illegal aliens -- aliens over whose

entry or continued presence it has no control.  Of course such fiscal

concerns alone could not justify discrimination against a suspect class

or an arbitrary and irrational denial of benefits to a particular group

of persons.  Yet I assume no Member of this Court would argue that

prudent conservation of finite state revenues is, per se, an

illegitimate goal.  Indeed, the numerous classifications this Court has

sustained in social welfare legislation were invariably related to the

limited amount of revenues available to spend on any given program or

set of programs.  See, e.g., Jefferson v. Hackney, 406 U.S. at

 Dandridge v. Williams, supra, at 487.  The significant

question here is whether the requirement of tuition from illegal aliens

who attend the public schools -- as well as from residents of other

states, for example -- is a rational and reasonable means of furthering

the State's legitimate fiscal ends.{10} [457 U.S. 250]



Without laboring what will undoubtedly seem obvious to many, it simply

is not "irrational" for a state to conclude that it does not have the

same responsibility to provide benefits for persons whose very presence

in the state and this country is illegal as it does to provide for

persons lawfully present.  By definition, illegal aliens have no right

whatever to be here, and the state may reasonably, and constitutionally,

elect not to provide them with governmental services at the expense of

those who are lawfully in the state.{11}  In De Canas v. Bica, 424

U.S. 351, 357 (1976), we held that a State may protect its fiscal

interests and lawfully resident labor force from the deleterious effects

on its economy resulting from the employment of illegal aliens. And,

only recently, this Court made clear that a State has a legitimate

interest in protecting and preserving the quality of its schools and

"the right of its own bona fide residents to attend such institutions on

a preferential tuition basis."  Vlandis v. Kline, 412 U.S. 441,

453 (1973) (emphasis added).  See also Elkins v. Moreno, 435 U.S.

647, (1978).  The Court has failed to offer even a plausible

explanation why illegality of residence [457 U.S. 251] in this country

is not a factor that may legitimately bear upon the bona fides of state

residence and entitlement to the benefits of lawful residence.{12}



It is significant that the Federal Government has seen fit to exclude

illegal aliens from numerous social welfare programs, such as the food

stamp program, 7 U.S.C.  2015(f) (1976 ed. and Supp. IV) and 7 CFR 273.4

(1981), the old-age assistance, aid to families with dependent children,

aid to the blind, aid to the permanently and totally disabled, and

supplemental security income programs, 45 CFR  233.50 (1981), the

Medicare hospital insurance benefits program, 42 U.S.C.  1395i-2 and 42

CFR  405.205(b) (1981), and the Medicaid hospital insurance benefits for

the aged and disabled program, 42 U.S.C.  1395o and 42 CFR 405.103(a)(4)

(1981).  Although these exclusions do not conclusively demonstrate the

constitutionality of the State's use of the same classification for

comparable purposes, at the very least they tend to support the

rationality of excluding illegal alien residents of a state from such

programs so as to preserve the state's finite revenues for the benefit

of lawful residents.  See Mathews v. Diaz, 426 U.S. at 80; see also

n. 7, supra.



The Court maintains -- as if this were the issue -- that "barring

undocumented children from local schools would not necessarily improve

the quality of education provided in those [457 U.S. 252] schools." Ante

at 229.  See 458 F.Supp. 569, 577 (ED Tex.1978).{13} However, the

legitimacy of barring illegal aliens from programs such as Medicare or

Medicaid does not depend on a showing that the barrier would "improve

the quality" of medical care given to persons lawfully entitled to

participate in such programs.  Modern education, like medical care, is

enormously expensive, and there can be no doubt that very large added

costs will fall on the State or its local school districts as a result

of the inclusion of illegal aliens in the tuition-free public schools.

The State may, in its discretion, use any savings resulting from its

tuition requirement to "improve the quality of education" in the public

school system, or to enhance the funds available for other social

programs, or to reduce the tax burden placed on its residents; each of

these ends is `legitimate.'"  The State need not show, as the Court

implies, that the incremental cost of educating illegal aliens will send

it into bankruptcy, or have a "`grave impact on the quality of

education,'" ante at 229; that is not dispositive under a "rational

basis" scrutiny.  In the absence of a constitutional imperative to

provide for the education of illegal aliens, the State may "rationally"

choose to take advantage of whatever savings will accrue from limiting

access to the tuition-free public schools to its own lawful residents,

excluding even citizens of neighboring States.{14}



Denying a free education to illegal alien children is not a choice I

would make were I a legislator.  Apart from compassionate

considerations, the long-range costs of excluding any children from the

public schools may well outweigh the costs of educating them.  But that

is not the issue; the fact [457 U.S. 253] that there are sound policy

arguments against the Texas Legislature's choice does not render that

choice an unconstitutional one. II



The Constitution does not provide a cure for every social ill, nor does

it vest judges with a mandate to try to remedy every social problem.

Lindsey v. Normet, 405 U.S. at 74.  See Reynolds v. Sims, 377 U.S.

533, 624 625 (1964) (Harlan, J., dissenting).  Moreover, when this

Court rushes in to remedy what it perceives to be the failings of the

political processes, it deprives those processes of an opportunity to

function.  When the political institutions are not forced to exercise

constitutionally allocated powers and responsibilities, those powers,

like muscles not used, tend to atrophy.  Today' cases, I regret to say,

present yet another example of unwarranted judicial action which, in the

long run, tends to contribute to the weakening of our political

processes.{15}



Congress, "vested by the Constitution with the responsibility of

protecting our borders and legislating with respect to aliens," ante at

237 (POWELL, J., concurring), bears primary responsibility for

addressing the problems occasioned by the millions of illegal aliens

flooding across our southern border.  Similarly, it is for Congress, and

not this Court, to [457 U.S. 254] assess the "social costs borne by our

Nation when select groups are denied the means to absorb the values and

skills upon which our social order rests."  Ante at 221; see ante at

  While the "specter of a permanent caste" of illegal Mexican

residents of the United States is indeed a disturbing one, see ante at

 it is but one segment of a larger problem, which is for the

political branches to solve.  I find it difficult to believe that

Congress would long tolerate such a self-destructive result -- that it

would fail to deport these illegal alien families or to provide for the

education of their children.  Yet instead of allowing the political

processes to run their course -- albeit with some delay -- the Court

seeks to do Congress' job for it, compensating for congressional

inaction.  It is not unreasonable to think that this encourages the

political branches to pass their problems to the Judiciary.



The solution to this seemingly intractable problem is to defer to the

political processes, unpalatable as that may be to some. Footnotes

BRENNAN, J., lead opinion (Footnotes)



* Together with No. 80-1934, Texas et al. v. Certain Named and Unnamed

Undocumented Alien Children et al., also on appeal from the same court.



1. That section provides, in pertinent part:



(a) All children who are citizens of the United States or legally

admitted aliens and who are over the age of five years and under the age

of 21 years on the first day of September of any scholastic year shall

be entitled to the benefits of the Available School Fund for that year.



(b) Every child in this state who is a citizen of the United States or a

legally admitted alien and who is over the age of five years and not

over the age of 21 years on the first day of September of the year in

which admission is sought shall be permitted to attend the public free

schools of the district in which he resides or in which his parent,

guardian, or the person having lawful control of him resides at the time

he applies for admission.



(c) The board of trustees of any public free school district of this

state shall admit into the public free schools of the district free of

tuition all persons who are either citizens of the United States or

legally admitted aliens and who are over five and not over 21 years of

age at the beginning of the scholastic year if such person or his

parent, guardian or person having lawful control resides within the

school district.



2. Despite the enactment of  21.031 in 1975, the School District had

continued to enroll undocumented children free of charge until the

1977-1978 school year.  In July, 1977, it adopted a policy requiring

undocumented children to pay a "full tuition fee" in order to enroll.

Section 21.031 had not provided a definition of "a legally admitted

alien."  Tyler offered the following clarification: A legally admitted

alien is one who has documentation that he or she is legally in the

United States, or a person who is in the process of securing

documentation from the United States Immigration Service, and the

Service will state that the person is being processed and will be

admitted with proper documentation. App. to Juris.Statement in No.

80-1538, p. A-38.



3. The court contrasted this group with those illegal aliens who entered

the country alone in order to earn money to send to their dependents in

Mexico, and who, in many instances, remained in this country for only a

short period of time.  458 F.Supp. at 578.



4. Plaintiffs' expert, Dr. Gilbert Cardenas, testified that "fifty to

sixty per cent . . . of current legal alien workers were formerly

illegal aliens."  Id. at 577.  A defense witness, Rolan Heston, District

Director of the Houston District of the Immigration and Naturalization

Service, testified that undocumented children can and do live in the

United States for years, and adjust their status through marriage to a

citizen or permanent resident. Ibid.  The court also took notice of

congressional proposals to "legalize" the status of many unlawful

entrants.  Id. at 577-578.  See also n. 17, infra.



5. The court found  21.031 inconsistent with the scheme of national

regulation under the Immigration and Nationality Act, and with federal

laws pertaining to funding and discrimination in education.  The court

distinguished De Canas v. Bica, 424 U.S. 351 (1976), by emphasizing

that the state bar on employment of illegal aliens involved in that case

mirrored precisely the federal policy, of protecting the domestic labor

market, underlying the immigration laws.  The court discerned no express

federal policy to bar illegal immigrants from education.  458 F.Supp. at

590-592.



6. The Court of Appeals noted that De Canas v. Bica, supra, had not

foreclosed all state regulation with respect to illegal aliens, and

found no express or implied congressional policy favoring the education

of illegal aliens.  The court therefore concluded that there was no

preemptive conflict between state and federal law.  628 F.2d at 451-454.



7. The court concluded that  21.031 was not preempted by federal laws or

international agreements.  501 F.Supp. at 584-596.



8. Appellees in both cases continue to press the argument that  21.031

is preempted by federal law and policy.  In light of our disposition of

the Fourteenth Amendment issue, we have no occasion to reach this claim.



9. It would be incongruous to hold that the United States, to which the

Constitution assigns a broad authority over both naturalization and

foreign affairs, is barred from invidious discrimination with respect to

unlawful aliens, while exempting the States from a similar limitation.

See 426 U.S. at 84-86.



10. Although we have not previously focused on the intended meaning of

this phrase, we have had occasion to examine the first sentence of the

Fourteenth Amendment, which provides that "[a]ll persons born or

naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States. . . ."  (Emphasis added.)

Justice Gray, writing for the Court in United States v. Wong Kim Ark,

169 U.S. 649 (1898), detailed at some length the history of the

Citizenship Clause, and the predominantly geographic sense in which the

term "jurisdiction" was used.  He further noted that it was impossible

to construe the words "subject to the jurisdiction thereof," in the

opening sentence [of the Fourteenth Amendment], as less comprehensive

than the words "within its jurisdiction," in the concluding sentence of

the same section; or to hold that persons "within the jurisdiction" of

one of the States of the Union are not "subject to the jurisdiction of

the United States." Id. at 687.



Justice Gray concluded that [e]very citizen or subject of another

country, while domiciled here, is within the allegiance and the

protection, and consequently subject to the jurisdiction, of the United

States. Id. at 693.  As one early commentator noted, given the

historical emphasis on geographic territoriality, bounded only, if at

all, by principles of sovereignty and allegiance, no plausible

distinction with respect to Fourteenth Amendment "jurisdiction" can be

drawn between resident aliens whose entry into the United States was

lawful, and resident aliens whose entry was unlawful.  See C. Bouve,

Exclusion and Expulsion of Aliens in the United States 425-427 (1912).



11. In his separate opinion, Justice Field addressed the relationship

between the Fifth and Fourteenth Amendments: The term "person," used in

the Fifth Amendment, is broad enough to include any and every human

being within the jurisdiction of the republic.  A resident, alien born,

is entitled to the same protection under the laws that a citizen is

entitled to.  He owes obedience to the laws of the country in which he

is domiciled, and, as a consequence, he is entitled to the equal

protection of those laws. . . .  The contention that persons within the

territorial jurisdiction of this republic might be beyond the protection

of the law was heard with pain on the argument at the bar -- in face of

the great constitutional amendment which declares that no State shall

deny to any person within its jurisdiction the equal protection of the

laws. Wong Wing v. United States, 163 U.S. at 242-243 (concurring in

part and dissenting in part).



12. Leng May Ma v. Barber, 357 U.S. 185 (1958), relied on by appellants,

is not to the contrary.  In that case, the Court held, as a matter of

statutory construction, that an alien paroled into the United States

pursuant to 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C.

1182(d)(5) (1952 ed.), was not "within the United States" for the

purpose of availing herself of  243(h), which authorized the withholding

of deportation in certain circumstance.  The conclusion reflected the

longstanding distinction between exclusion proceedings, involving the

determination of admissibility, and deportation proceedings.  The

undocumented children who are appellees here, unlike the parolee in Leng

May Ma, supra, could apparently be removed from the country only

pursuant to deportation proceedings.  8 U.S.C.  1251(a)(2).  See 1A C.

Gordon & H. Rosenfield, Immigration Law and Procedure  3.16b, p. 3-161

(1981).



13. Representative Bingham's views are also reflected in his comments on

the Civil Rights Bill of 1866.  He repeatedly referred to the need to

provide protection, not only to the freedmen, but to "the alien and

stranger," and to "refugees . . . and all men."  Cong.Globe, 39th Cong.,

1st Sess., 1292 (1866).



14. Several formulations might explain our treatment of certain

classifications as "suspect."  Some classifications are more likely than

others to reflect deep-seated prejudice, rather than legislative

rationality in pursuit of some legitimate objective.  Legislation

predicated on such prejudice is easily recognized as incompatible with

the constitutional understanding that each person is to be judged

individually and is entitled to equal justice under the law.

Classifications treated as suspect tend to be irrelevant to any proper

legislative goal.  See McLaughlin v. Florida, 379 U.S. 184, 192

(1964); Hirabayashi v. United States, 320 U.S. 81, 100 (1943).

Finally, certain groups, indeed largely the same groups, have

historically been "relegated to such a position of political

powerlessness as to command extraordinary protection from the

majoritarian political process."  San Antonio Independent School

Dist. v. Rodriguez, 411 U.S. 1, 28 (1973); Graham v. Richardson,

403 U.S. 365, 372 (1971); see United States v. Carolene Products

Co., 304 U.S. 144,  n. 4 (1938).  The experience of our

Nation has shown that prejudice may manifest itself in the treatment of

some groups.  Our response to that experience is reflected in the Equal

Protection Clause of the Fourteenth Amendment.  Legislation imposing

special disabilities upon groups disfavored by virtue of circumstances

beyond their control suggests the kind of "class or caste" treatment

that the Fourteenth Amendment was designed to abolish.



15. In determining whether a class-based denial of a particular right is

deserving of strict scrutiny under the Equal Protection Clause, we look

to the Constitution to see if the right infringed has its source,

explicitly or implicitly, therein.  But we have also recognized the

fundamentality of participation in state "elections on an equal basis

with other citizens in the jurisdiction," Dunn v. Blumstein, 405 U.S.

330, 336 (1972), even though "the right to vote, per se, is not a

constitutionally protected right."  San Antonio Independent School

Dist., supra, at 35, n. 78.  With respect to suffrage, we have

explained the need for strict scrutiny as arising from the significance

of the franchise as the guardian of all other rights.  See Harper v.

Virginia Bd. of Elections, 383 U.S. 663, 667 (1966); Reynolds v.

Sims, 377 U.S. 533, 562 (1964); Yick Wo v. Hopkins, 118 U.S. 356,

370 (1886).



16. See Craig v. Boren, 429 U.S. 190 (1976); Lalli v. Lalli, 439

U.S. 259 (1978).  This technique of "intermediate" scrutiny permits us

to evaluate the rationality of the legislative judgment with reference

to well-settled constitutional principles. In expounding the

Constitution, the Court's role is to discern "principles sufficiently

absolute to give them roots throughout the community and continuity over

significant periods of time, and to lift them above the level of the

pragmatic political judgments of a particular time and place."

University of California Regents v. Bakke, 438 U.S. 265, 299

(1978) (opinion of POWELL, J.), quoting A. Cox, The Role of the Supreme

Court in American Government 114 (1976).  Only when concerns

sufficiently absolute and enduring can be clearly ascertained from the

Constitution and our cases do we employ this standard to aid us in

determining the rationality of the legislative choice.



17. The Attorney General recently estimated the number of illegal aliens

within the United States at between 3 and 6 million.  In presenting to

both the Senate and House of Representatives several Presidential

proposals for reform of the immigration laws -- including one to

"legalize" many of the illegal entrants currently residing in the United

States by creating for them a special status under the immigration laws

-- the Attorney General noted that this subclass is largely composed of

persons with a permanent attachment to the Nation, and that they are

unlikely to be displaced from our territory: We have neither the

resources, the capability, nor the motivation to uproot and deport

millions of illegal aliens, many of whom have become, in effect, members

of the community.  By granting limited legal status to the productive

and law-abiding members of this shadow population, we will recognize

reality and devote our enforcement resources to deterring future illegal

arrivals. Joint Hearing before the Subcommittee on Immigration,

Refugees, and International Law of the House Committee on the Judiciary

and the Subcommittee on Immigration and Refugee Policy of the Senate

Committee on the Judiciary, 97th Cong., 1st Sess., 9 (1981) (testimony

of William French Smith, Attorney General).



18. As the District Court observed in No. 80-1538, the confluence of

Government policies has resulted in the existence of a large number of

employed illegal aliens, such as the parents of plaintiffs in this case,

whose presence is tolerated, whose employment is perhaps even welcomed,

but who are virtually defenseless against any abuse, exploitation, or

callous neglect to which the state or the state's natural citizens and

business organizations may wish to subject them. 458 F.Supp. at 585.



19. We reject the claim that "illegal aliens" are a "suspect class."  No

case in which we have attempted to define a suspect class, see, e.g., n.

14, supra, has addressed the status of persons unlawfully in our

country.  Unlike most of the classifications that we have recognized as

suspect, entry into this class, by virtue of entry into this country, is

the product of voluntary action.  Indeed, entry into the class is itself

a crime.  In addition, it could hardly be suggested that undocumented

status is a "constitutional irrelevancy."  With respect to the actions

of the Federal Government, alienage classifications may be intimately

related to the conduct of foreign policy, to the federal prerogative to

control access to the United States, and to the plenary federal power to

determine who has sufficiently manifested his allegiance to become a

citizen of the Nation.  No State may independently exercise a like

power.  But if the Federal Government has, by uniform rule, prescribed

what it believes to be appropriate standards for the treatment of an

alien subclass, the States may, of course, follow the federal direction.

See De Canas v. Bica, 424 U.S. 351 (1976).



20. Because the State does not afford noncitizens the right to vote, and

may bar noncitizens from participating in activities at the heart of its

political community, appellants argue that denial of a basic education

to these children is of less significance than the denial to some other

group.  Whatever the current status of these children, the courts below

concluded that many will remain here permanently, and that some

indeterminate number will eventually become citizens.  The fact that

many will not is not decisive, even with respect to the importance of

education to participation in core political institutions.  "[T]he

benefits of education are not reserved to those whose productive

utilization of them is a certainty. . . ."  458 F.Supp. at 581, n. 14.

In addition, although a noncitizen may be barred from full involvement

in the political arena, he may play a role -- perhaps even a leadership

role -- in other areas of import to the community. Nyquist v.

Mauclet, 432 U.S. 1, 12 (1977).  Moreover, the significance of

education to our society is not limited to its political and cultural

fruits.  The public schools are an important socializing institution,

imparting those shared values through which social order and stability

are maintained.



21. If the constitutional guarantee of equal protection was available

only to those upon whom Congress affirmatively granted its benefit, the

State's argument would be virtually unanswerable.  But the Equal

Protection Clause operates of its own force to protect anyone "within

[the State's] jurisdiction" from the State's arbitrary action.  See

Part II, supra.  The question we examine in text is whether the

federal disapproval of the presence of these children assists the State

in overcoming the presumption that denial of education to innocent

children is not a rational response to legitimate state concerns.



22. Appellant School District sought at oral argument to characterize

the alienage classification contained in  21.031 as simply a test of

residence.  We are unable to uphold  21.031 on that basis.  Appellants

conceded that, if, for example, a Virginian or a legally admitted

Mexican citizen entered Tyler with his school-age children, intending to

remain only six months, those children would be viewed as residents

entitled to attend Tyler schools.  Tr. of Oral Arg. 31-32.  It is thus

clear that Tyler's residence argument amounts to nothing more than the

assertion that illegal entry, without more, prevents a person from

becoming a resident for purposes of enrolling his children in the public

schools.  A State may not, however, accomplish what would otherwise be

prohibited by the Equal Protection Clause merely by defining a

disfavored group as nonresident.  And illegal entry into the country

would not, under traditional criteria, bar a person from obtaining

domicile within a State.  C. Bouve, Exclusion and Expulsion of Aliens in

the United States 340 (1912).  Appellants have not shown that the

families of undocumented children do not comply with the established

standards by which the State historically tests residence.  Apart from

the alienage limitation,  21.031(b) requires a school district to

provide education only to resident children.  The school districts of

the State are as free to apply to undocumented children established

criteria for determining residence as they are to apply those criteria

to any other child who seeks admission.



23. Although the State has no direct interest in controlling entry into

this country, that interest being one reserved by the Constitution to

the Federal Government, unchecked unlawful migration might impair the

State's economy generally, or the State's ability to provide some

important service.  Despite the exclusive federal control of this

Nation's borders, we cannot conclude that the States are without any

power to deter the influx of persons entering the United States against

federal law, and whose numbers might have a discernible impact on

traditional state concerns.  See De Canas v. Bica, 424 U.S. at





24. The courts below noted the ineffectiveness of the Texas provision as

a means of controlling the influx of illegal entrants into the State.

See 628 F.2d at 460-461; 458 F.Supp. at 585; 501 F.Supp. at 578 ("The

evidence demonstrates that undocumented persons do not immigrate in

search for a free public education.  Virtually all of the undocumented

persons who come into this country seek employment opportunities, and

not educational benefits. . . .  There was overwhelming evidence . . .

of the unimportance of public education as a stimulus for immigration")

(footnote omitted).



25. Nor does the record support the claim that the educational resources

of the State are so direly limited that some form of "educational

triage" might be deemed a reasonable (assuming that it were a

permissible) response to the State's problems.  Id. at 579-581.

BLACKMUN, J., concurring (Footnotes)



1. See, e.g., Perry, Modern Equal Protection:  A Conceptualization and

Appraisal, 79 Colum.L.Rev. 1023, 1075-1083 (1979).



2. I use the term "citizen" advisedly.  The right to vote, of course, is

a political interest of concern to citizens.  The right to an education,

in contrast, is a social benefit of relevance to a substantial number of

those affected by Texas' statutory scheme, as is discussed below.



3. The Court concludes that the provision at issue must be invalidated

"unless it furthers some substantial goal of the State."  Ante at

224.  Since the statute fails to survive this level of scrutiny, as

the Court demonstrates, there is no need to determine whether a more

probing level of review would be appropriate. POWELL, J., concurring

(Footnotes)



1. Article I,  8, cl. 4, of the Constitution provides:  "The Congress

shall have Power . . . To establish an uniform Rule of Naturalization."

The Federal Government has broad constitutional powers in determining

what aliens shall be admitted to the United States, the period they may

remain, regulation of their conduct before naturalization, and the terms

and conditions of their naturalization. Takahashi v. Fish & Game

Comm'n, 334 U.S. 410, 419 (1948).  See Graham v. Richardson, 403 U.S.

365, 378 (1971) (regulation of aliens is "constitutionally entrusted

to the Federal Government").  The Court has traditionally shown great

deference to federal authority over immigration and to federal

classifications based upon alienage.  See, e.g., Fiallo v. Bell, 430

U.S. 787, 792 (1977) ("it is important to underscore the limited

scope of judicial inquiry into immigration legislation"); Harisiades v.

Shaughnessy, 342 U.S. 580, 588-589 (1952) ("It is pertinent to observe

that any policy toward aliens is vitally and intricately interwoven with

contemporaneous policies in regard to the conduct of foreign relations,

the war power, and the maintenance of a republican form of government.

Such matters are so exclusively entrusted to the political branches of

government as to be largely immune from judicial inquiry or

interference").  Indeed, even equal protection analysis in this area is

based to a large extent on an underlying theme of preemption and

exclusive federal power over immigration.  See Takahashi v. Fish & Game

Comm'n, supra, at 420 (the Federal Government has admitted resident

aliens to the country "on an equality of legal privileges with all

citizens under nondiscriminatory laws," and the States may not alter the

terms of this admission).  Compare Graham v. Richardson, supra, and

Sugarman v. Dougall, 413 U.S. 634 (1973), with Mathews v. Diaz,

426 U.S. 67 (1976), and Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).

Given that the States' power to regulate in this area is so limited, and

that this is an area of such peculiarly strong federal authority, the

necessity of federal leadership seems evident.



2. I emphasize the Court's conclusion that strict scrutiny is not

appropriately applied to this classification.  This exacting standard of

review has been reserved for instances in which a "fundamental"

constitutional right or a "suspect" classification is present.  Neither

is present in these cases, as the Court holds.



3. THE CHIEF JUSTICE argues in his dissenting opinion that this

heightened standard of review is inconsistent with the Court's decision

in San Antonio Independent School District v. Rodriguez, 411 U.S. 1

(1973).  But in Rodriguez, no group of children was singled out by the

State and then penalized because of their parents' status.  Rather,

funding for education varied across the State because of the tradition

of local control.  Nor, in that case, was any group of children totally

deprived of all education, as in these cases.  If the resident children

of illegal aliens were denied welfare assistance, made available by

government to all other children who qualify, this also -- in my opinion

-- would be an impermissible penalizing of children because of their

parents' status.



4. The State provides free public education to all lawful residents

whether they intend to reside permanently in the State or only reside in

the State temporarily.  See ante at 227, n. 22.  Of course, a school

district may require that illegal alien children, like any other

children, actually reside in the school district before admitting them

to the schools.  A requirement of de facto residency, uniformly applied,

would not violate any principle of equal protection.



5. The classes certified in these cases included all undocumented

school-age children of Mexican origin residing in the school district,

see ante at 206, or the State.  See In re Alien Children Education

Litigation, 501 F.Supp. 544, 553 (SD Tex.1980).  Even so, it is clear

that neither class was thought to include mature Mexican minors who were

solely responsible for violating the immigration laws.  In 458 F.Supp.

569 (ED Tex.1978), the court characterized plaintiffs as "entire

families who have migrated illegally."  Id. at 578.  Each of the

plaintiff children in that case was represented by a parent or guardian.

Similarly, the court in In re Alien Children Education Litigation found

that "[u]ndocumented children do not enter the United States

unaccompanied by their parents."  501 F.Supp. at 573.  A different case

would be presented in the unlikely event that a minor, old enough to be

responsible for illegal entry and yet still of school age, entered this

country illegally on his own volition.



6. In addition, the States' ability to respond on their own to the

problems caused by this migration may be limited by the principles of

preemption that apply in this area.  See, e.g., Hines v. Davidowitz,

312 U.S. 52 (1941).  In De Canas v. Bica, 424 U.S. 351 (1976), the

Court found that a state law making it a criminal offense to employ

illegal aliens was not preempted by federal authority over aliens and

immigration.  The Court found evidence that Congress intended state

regulation in this area.  Id. at 361 ("there is evidence . . . that

Congress intends that States may, to the extent consistent with federal

law, regulate the employment of illegal aliens").  Moreover, under

federal immigration law, only immigrant aliens and nonimmigrant aliens

with special permission are entitled to work.  See 1 C. Gordon & H.

Rosenfield, Immigration Law and Procedure, 1.34a, 1.36, 2.6b (1981).

Because federal law clearly indicates that only certain specified aliens

may lawfully work in the country, and because these aliens have

documentation establishing this right, the State in De Canas was able to

identify with certainty which aliens had a federal permission to work in

this country.  The State did not need to concern itself with an alien's

current or future deportability.  By contrast, there is no comparable

federal guidance in the area of education.  No federal law invites state

regulation; no federal regulations identify those aliens who have a

right to attend public schools.  In addition, the Texas educational

exclusion requires the State to make predictions as to whether

individual aliens eventually will be found to be deportable.  But it is

impossible for a State to determine which aliens the Federal Government

will eventually deport, which the Federal Government will permit to

stay, and which the Federal Government will ultimately naturalize. Until

an undocumented alien is ordered deported by the Federal Government, no

State can be assured that the alien will not be found to have a federal

permission to reside in the country, perhaps even as a citizen.  Indeed,

even the Immigration and Naturalization Service cannot predict with

certainty whether any individual alien has a right to reside in the

country until deportation proceedings have run their course.  See, e.g.,

8 U.S.C.  1252, 1253(h), 1254 (1976 ed. and Supp. IV). BURGER, J.,

dissenting (Footnotes)



1. It does not follow, however, that a state should bear the costs of

educating children whose illegal presence in this country results from

the default of the political branches of the Federal Government.  A

state has no power to prevent unlawful immigration, and no power to

deport illegal aliens; those powers are reserved exclusively to Congress

and the Executive.  If the Federal Government, properly chargeable with

deporting illegal aliens, fails to do so, it should bear the burdens of

their presence here.  Surely if illegal alien children can be identified

for purposes of this litigation, their parents can be identified for

purposes of prompt deportation.



2. The Department of Justice recently estimated the number of illegal

aliens within the United States at between 3 and 6 million.  Joint

Hearing before the Subcommittee on Immigration, Refugees, and

International Law of the House Committee on the Judiciary and the

Subcommittee on Immigration and Refugee Policy of the Senate Committee

on the Judiciary, 97th Cong., 1st Sess., 7 (1981) (testimony of Attorney

General Smith).  Other estimates run as high as 12 million.  See Strout,

Closing the Door on Immigration, Christian Science Monitor, May 21,

1982, p. 22, col. 4.



3. The Court implies, for example, that the Fourteenth Amendment would

not require a state to provide welfare benefits to illegal aliens.



4. Both the opinion of the Court and JUSTICE POWELL's concurrence imply

that appellees are being "penalized" because their parents are illegal

entrants.  Ante at 220; ante at  and 239, n. 3 (POWELL,

J., concurring).  However, Texas has classified appellees on the basis

of their own illegal status, not that of their parents.  Children born

in this country to illegal alien parents, including some of appellees'

siblings, are not excluded from the Texas schools.  Nor does Texas

discriminate against appellees because of their Mexican origin or

citizenship.  Texas provides a free public education to countless

thousands of Mexican immigrants who are lawfully in this country.



5. Appellees "lack control" over their illegal residence in this country

in the same sense as lawfully resident children lack control over the

school district in which their parents reside.  Yet in San Antonio

Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973), we declined to

review under "heightened scrutiny" a claim that a State discriminated

against residents of less wealthy school districts in its provision of

educational benefits.  There was no suggestion in that case that a

child's "lack of responsibility" for his residence in a particular

school district had any relevance to the proper standard of review of

his claims.  The result was that children lawfully here but residing in

different counties received different treatment.



6. Indeed, even children of illegal alien parents born in the United

States can be said to be "penalized" when their parents are deported.



7. It is true that the Constitution imposes lesser constraints on the

Federal Government than on the states with regard to discrimination

against lawfully admitted aliens.  E.g., Mathews v. Diaz, 426 U.S. 67

(1976); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).  This is because

"Congress and the President have broad power over immigration and

naturalization which the States do not possess," Hampton, supra, at

95, and because state discrimination against legally resident aliens

conflicts with and alters the conditions lawfully imposed by Congress

upon admission, naturalization and residence of aliens in the United

States or the several states. Takahashi v. Fish & Game Comm'n, 334

U.S. 410, 419 (1948).  However, the same cannot be said when Congress

has decreed that certain aliens should not be admitted to the United

States at all.



8. In support of this conclusion, the Court's opinion strings together

quotations drawn from cases addressing such diverse matters as the right

of individuals under the Due Process Clause to learn a foreign language,

Meyer v. Nebraska, 262 U.S. 390 (1923); the First Amendment

prohibition against state-mandated religious exercises in the public

schools, Abington School District v. Schempp, 374 U.S. 203 (1963);

and state impingements upon the free exercise of religion, Wisconsin

v. Yoder, 406 U.S. 205 (1972).  However, not every isolated utterance of

this Court retains force when wrested from the context in which it was

made.



9. This "rational basis standard" was applied by the Court of Appeals.

628 F.2d 448, 458-461 (1980).



10. The Texas law might also be justified as a means of deterring

unlawful immigration.  While regulation of immigration is an exclusively

federal function, a state may take steps, consistent with federal

immigration policy, to protect its economy and ability to provide

governmental services from the "deleterious effects" of a massive influx

of illegal immigrants.  De Canas v. Bica, 424 U.S. 351 (1976); ante

at 228, n. 23.  The Court maintains that denying illegal aliens a

free public education is an "ineffectual" means of deterring unlawful

immigration, at least when compared to a prohibition against the

employment of illegal aliens.  Ante at   Perhaps that is

correct, but it is not dispositive; the Equal Protection Clause does not

mandate that a state choose either the most effective and

all-encompassing means of addressing a problem or none at all.

Dandridge v. Wiliams, 397 U.S. 471, 1970).  Texas might

rationally conclude that more significant "demographic or economic

problem[s]," ante at 228, are engendered by the illegal entry into

the State of entire families of aliens for indefinite periods than by

the periodic sojourns of single adults who intend to leave the State

after short-term or seasonal employment.  It blinks reality to maintain

that the availability of governmental services such as education plays

no role in an alien family's decision to enter, or remain in, this

country; certainly, the availability of a free bilingual public

education might well influence an alien to bring his children, rather

than travel alone for better job opportunities.



11. The Court suggests that the State's classification is improper

because "[a]n illegal entrant might be granted federal permission to

continue to reside in this country, or even to become a citizen."  Ante

at 226.  However, once an illegal alien is given federal permission

to remain, he is no longer subject to exclusion from the tuition-free

public schools under  21.031.  The Court acknowledges that the Tyler

Independent School District provides a free public education to any

alien who has obtained, or is in the process of obtaining, documentation

from the United States Immigration and Naturalization Service.  See ante

at 206, n. 2.  Thus, Texas has not taken it upon itself to determine

which aliens are or are not entitled to United States residence. JUSTICE

BLACKMUN's assertion that the Texas statute will be applied to aliens

"who may well be entitled to . . . remain in the United States," ante at

236 (concurring opinion), is wholly without foundation.



12. The Court's opinion is disingenuous when it suggests that the State

has merely picked a "disfavored group" and arbitrarily defined its

members as nonresidents.  Ante at 227, n. 22.  Appellees' "disfavored

status" stems from the very fact that federal law explicitly prohibits

them from being in this country.  Moreover, the analogies to Virginians

or legally admitted Mexican citizens entering Texas, ibid., are

spurious.  A Virginian's right to migrate to Texas, without penalty, is

protected by the Constitution, see, e.g., Shapiro v. Thompson, 394

U.S. 618 (1969); and a lawfully admitted alien's right to enter the

State is likewise protected by federal law.  See Takahashi v. Fish &

Game Comm'n, 334 U.S. 410 (1948).  Cf. Zobel v. Williams, ante,



13. The District Court so concluded primarily because the State would

decrease its funding to local school districts in proportion to the

exclusion of illegal alien children.  458 F.Supp. at 577.



14. I assume no Member of the Court would challenge Texas' right to

charge tuition to students residing across the border in Louisiana who

seek to attend the nearest school in Texas.



15. Professor Bickel noted that judicial review can have a "tendency

over time seriously to weaken the democratic process."  A. Bickel, The

Least Dangerous Branch 21 (1962).  He reiterated James Bradley Thayer's

observation that "the exercise of [the power of judicial review], even

when unavoidable, is always attended with a serious evil, namely, that

the correction of legislative mistakes comes from the outside, and the

people thus lose the political experience, and the moral education and

stimulus that comes from fighting the question out in the ordinary way,

and correcting their own errors.  The tendency of a common and easy

resort to this great function, now lamentably too common, is to dwarf

the political capacity of the people, and to deaden its sense of moral

responsibility." Id. at 22 (quoting J. Thayer, John Marshall 106-107

(1901)).

