| Plyler v. Doe
(No. 80-1538)
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| Syllabus
| Opinion
[ Brennan ] | Concurrence
[ Marshall ] | Concurrence
[ Blackmun ] | Concurrence
[ Powell ] | Dissent
[ Burger ] |
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Plyler v. Doe
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
JUSTICE POWELL, concurring.
I join the opinion of the Court, and write separately to emphasize the unique character of the cases before us. [p237]
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 218-219, 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. [n1] It therefore is certain that illegal aliens will continue [p238] 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. [n2] 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 [p239] 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. [n3] 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 [p240] nature of their residency in the particular Texas school district. [n4] 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 [n5] 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. [n6] So long as the ease of entry remains inviting, [p241] 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. [p242]
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).