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Supreme Court Upholds Texas Rule Permitting Tuition for Nonresidents

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Washington--The U.S. Supreme Court ruled last week that a Texas school district may charge tuition for students who do not live with their parents or a guardian and whose presence in the district is for the primary purpose of attending school.

The Court's 8-1 decision in the case, Martinez v. Bynum, marks the second time in less than a year that the Justices have ruled on the constitutionality of a section of the Texas Education Code that allows school districts to bar nonresidents from their schools.

Last June, in Plyler v. Doe, the Court struck down a part of the law that allowed Texas schools to deny a free public education to undocumented aliens residing in the state. (See Education Week, June 23, 1982.)

A Free Education

In the Martinez case, however, the Court said a different subsection of the law allows the McAllen (Tex.) Independent School District to deny a free education to Roberto Morales, 14 years old. The student was born in the United States and lives with his sister in McAllen, but his parents live in Reynosa, Mexico, a town located directly across the border.

The part of the Texas law in question requires school officials to admit a student if he or "his parent, guardian, or the person having lawful control of him" resides in the school district. Schools are exempt from that requirement if the student lives apart from his parent or guardian and if his presence in the district is "for the primary purpose of attending the public free schools."

Most states have laws establishing residency requirements for free public schooling, some of which are substantially similar to the Texas statute challenged in Martinez, according to Timothy T. Cooper, a school-law specialist in Houston and a member of the National Organization on Legal Problems in Education.

According to the Court, although Mr. Morales was born in McAllen and is an American citizen by birth, he does not officially "reside" in the school district because his sister is not his official guardian and because it is not clear that McAllen is his "true, fixed and permanent home ... to which, whenever he is absent, he has the intention of returning."

In a sharply worded dissenting opinion, Associate Justice Thurgood Marshall argued that the record "shows that Morales intends to remain in McAllen until he completes his education [and] is silent as to his intentions after that time."

"Indeed, what Morales will do in 1987 when he is graduated is most likely a matter of pure speculation even for Morales," Justice Marshall said.

Associate Justice Lewis F. Powell Jr., in delivering the majority opinion, cited the Justices' opinion in the Plyler case. He noted that although the Court invalidated the portion of the Texas law that excluded undocumented alien children from the free public schools, it "recognized the school district's right 'to apply ... established criteria for determining residence."'

"A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by its residents," the majority said.

Such a requirement "simply requires that the person does establish residence before demanding the services that are restricted to residents," the majority continued. "The provision of primary and secondary education ... is one of the most important functions of local government. Absent residence requirements, there can be little doubt that the proper planning and operation of the schools would suffer significantly. The state thus has a substantial interest in imposing bona fide residence requirements to maintain the quality of local public schools."

In his dissenting opinion, Justice Marshall argued that the Texas school officials have not applied the state's residency test uniformly.

"Under the Texas scheme, some children who are 'residents' of the state in every sense of that word are nevertheless denied an education,'' he said. "Other children whose only connection with the state is their physical presence are entitled to free public education as long as their presence is not motivated by a desire to obtain a free education."

"Under the Texas statute, a child who resides in the state for any purpose other than to attend the local schools is entitled to free education even if he expressly intends to remain for less than a year," Justice Marshall noted. "Yet a child who resides in the state in order to attend its schools is denied an education even if he intends to remain until he has completed 12 full years of primary and secondary education. This disparate treatment cannot be justified by any alleged state concern over fluctuating student population."

Mr. Cooper said that the Court's decision "would appear to affirm similar statutes in other states." He added that the decision will probably be cited in cases involving students who move from one school district to another in order to avoid busing for desegregation purposes or in order to participate in athletic programs.

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