The Dissent by Chief Justice Burger

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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." [

  • ]. 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.

[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 the purposes of prompt deportation.]

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 problem caused by the influx of uncountable millions of illegal aliens across our borders.[

  • ] [
  • ] 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 socio-economic 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.


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." [

  • ] The Equal Protection Clause does not mandate identical treatment of different categories of persons. [
  • ]

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 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.


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. [

  • ] Moreover, the Court expressly--and correctly--rejects any suggestion that illegal aliens are a suspect class [
  • ], or that education is a fundamental right. [
  • ] 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.[

  • ] If ever a court was guilty of an unabashedly result-oriented approach, this case is a prime example.


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. [

  • ] Similarly, the Court appears to take the position that 21.031 is presumptively "irrational" because it has the effect of imposing "penalties" on "innocent" children. [Both the opinion of the Court and Justice Powell's concurrence imply that appellees are being "penalized" because their parents are illegal entrants. [
  • ] 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 the 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.] 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."

[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 School District 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 responsiblity" 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.]

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-- [

  • ] --is grossly misleading. The State has not thrust any disabilities upon appellees due to their "status of birth." [
  • ] 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. [
  • ] 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." [
  • ] 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.[
  • ]


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." [

  • ] 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 School District v. Rodriguez, 411 U.S. 1, 30-31 (1973); Lindsey v. Normet, 405 U.S. 56, 73-74 (1972). In San Antonio School District, 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 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 School District, [

  • ] 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 "asssum[e] a legislative role and one for which the Court lacks both authority and competence." Yet that is precisely what the Court does today. [
  • ]

The central question in these cases, as in every equal protection case not involving truly fundamental rights "explicitly or implicitly guaranteed by the Constitution," [

  • ] 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.


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. [

  • ] [
  • ]

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. [

  • ] 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.

[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. [

  • ] 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. [
  • ] 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. [
  • ] Texas might rationally conclude that more significant "demographic or economic problems" [
  • ], 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.]

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.[

  • ] ... The Court has failed to offer even a plausible explanation why illegality of residence 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.[
  • ]

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 [

  • ], 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 [
  • ], the medicare hospital insurance benefits program [
  • ], and the medicaid hospital insurance benefits for the aged and disabled program [
  • ]. 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. [
  • ]

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 schools." [

  • ] 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 the 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," [
  • ]; 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.

[ 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.]

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 that there are sound policy arguments against the Texas legislature's choice does not render that choice an unconstitutional one.


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. [

  • ] 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's 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.[
  • ]

Congress "vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens," [

  • ] 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 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." [
  • ] While the "specter of a permanent caste" of illegal Mexican residents of the United States is indeed a disturbing one, [
  • ], 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.

Vol. 01, Issue 39

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