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decided: May 2, 1983.



Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, Rehnquist, Stevens, and O'connor, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 333. Marshall, J., filed a dissenting opinion, post, p. 334.

Author: Powell

[ 461 U.S. Page 322]

 JUSTICE POWELL delivered the opinion of the Court.

This case involves a facial challenge to the constitutionality of the Texas residency requirement governing minors who wish to attend public free schools while living apart from their parents or guardians.


Roberto Morales was born in 1969 in McAllen, Texas, and is thus a United States citizen by birth. His parents are Mexican citizens who reside in Reynosa, Mexico. He left Reynosa in 1977 and returned to McAllen to live with his sister, petitioner Oralia Martinez, for the primary purpose of attending

[ 461 U.S. Page 323]

     school in the McAllen Independent School District. Although Martinez is now his custodian, she is not -- and does not desire to become -- his guardian.*fn1 As a result, Morales is not entitled to tuition-free admission to the McAllen schools. Sections 21.031(b) and (c) of the Texas Education Code would require the local school authorities to admit him if he or "his parent, guardian, or the person having lawful control of him" resided in the school district, Tex. Educ. Code Ann. §§ 21.031(b) and (c) (Supp. 1982), but § 21.031(d) denies tuition-free admission for a minor who lives apart from a "parent, guardian, or other person having lawful control of him under an order of a court" if his presence in the school district is "for the primary purpose of attending the public free schools."*fn2 Respondent McAllen Independent School District

[ 461 U.S. Page 324]

     therefore denied Morales' application for admission in the fall of 1977.

In December 1977 Martinez, as next friend of Morales, and four other adult custodians of school-age children instituted the present action in the United States District Court for the Southern District of Texas against the Texas Commissioner of Education, the Texas Education Agency, four local School Districts, and various local school officials in those Districts. Plaintiffs initially alleged that § 21.031(d), both on its face and as applied by defendants, violated certain provisions of the Constitution, including the Equal Protection Clause, the Due Process Clause, and the Privileges and Immunities Clause. Plaintiffs also sought preliminary and permanent injunctive relief.

The District Court denied a preliminary injunction in August 1978. It found "that the school boards . . . have been more than liberal in finding that certain children are not living away from parents and residing in the school district for the sole purpose of attending school." App. 20a. The evidence "conclusively" showed "that children living within the school districts with someone other than their parents or legal guardians will be admitted to school if any reason exists for such situation other than that of attending school only." Ibid. (emphasis in original).

[ 461 U.S. Page 325]

     Plaintiffs subsequently amended the complaint to narrow their claims. They now seek only "a declaration that . . . § 21.031(d) is unconstitutional on its face," id., at 3a, an injunction prohibiting defendants from denying the children admission to school pursuant to § 21.031(d), restitution of certain tuition payments,*fn3 costs, and attorney's fees. App. 3a, 7a. After a hearing on the merits, the District Court granted judgment for the defendants. Arredondo v. Brockette, 482 F.Supp. 212 (1979). The court concluded that § 21.031(d) was justified by the State's "legitimate interest in protecting and preserving the quality of its educational system and the right of its own bona fide residents to attend state schools on a preferred tuition basis." 482 F.Supp., at 222. In an appeal by two plaintiffs, the United States Court of Appeals for the Fifth Circuit affirmed. 648 F.2d 425 (1981). In view of the importance of the issue,*fn4 we granted certiorari. 457 U.S. 1131 (1982). We now affirm.


This Court frequently has considered constitutional challenges to residence requirements. On several occasions the Court has invalidated requirements that condition receipt of a benefit on a minimum period of residence within a jurisdiction, but it always has been careful to distinguish such durational residence requirements from bona fide residence requirements. In Shapiro v. Thompson, 394 U.S. 618 (1969), for example, the Court invalidated one-year durational residence requirements that applicants for public assistance

[ 461 U.S. Page 326]

     benefits were required to satisfy despite the fact that they otherwise had "met the test for residence in their jurisdictions," id., at 627. JUSTICE BRENNAN, writing for the Court, stressed that "[the] residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites for assistance," id., at 636, and carefully "[implied] no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth," id., at 638, n. 21. In Dunn v. Blumstein, 405 U.S. 330 (1972), the Court similarly invalidated Tennessee laws requiring a prospective voter to have been a state resident for one year and a county resident for three months, but it explicitly distinguished these durational residence requirements from bona fide residence requirements, id., at 334, 337, n. 7, 338, 343, 350, n. 20, 351-352. This was not an empty distinction. JUSTICE MARSHALL, writing for the Court, again emphasized that "States have the power to require that voters be bona fide residents of the relevant political subdivision." Id., at 343. See also Memorial Hospital v. Maricopa County, 415 U.S. 250, 255, 267 (1974) (invalidating one-year durational residence requirement before an applicant became eligible for public medical assistance, but recognizing validity of appropriately defined and uniformly applied bona fide residence requirements).*fn5

We specifically have approved bona fide residence requirements in the field of public education. The Connecticut statute before us in Vlandis v. Kline, 412 U.S. 441 (1973), for example, was unconstitutional because it created an irrebuttable presumption of non-residency for state university students whose legal addresses were outside of the State before

[ 461 U.S. Page 327]

     they applied for admission. The statute violated the Due Process Clause because it in effect classified some bona fide state residents as nonresidents for tuition purposes. But we "fully [recognized] that a State has a legitimate interest in protecting and preserving . . . the right of its own bona fide residents to attend [its colleges and universities] on a preferential tuition basis." Id., at 452-453. This "legitimate interest" permits a "State [to] establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates." Id., at 453-454.*fn6 Last Term, in Plyler v. Doe, 457 U.S. 202 (1982), we reviewed an aspect of Tex. Educ. Code Ann.

[ 461 U.S. Page 328]

     § 21.031 -- the statute at issue in this case. Although we invalidated the portion of the statute that excluded undocumented alien children from the public free schools, we recognized the school districts' right "to apply . . . established criteria for determining residence." Id., at 229, n. 22. See id., at 240, n. 4 (POWELL, J., concurring) ("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").

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 residents. Such a requirement with respect to attendance in public free schools does not violate the Equal Protection Clause of the Fourteenth Amendment.*fn7 It does not burden or penalize the constitutional right of interstate travel,*fn8 for any person is free to move to a State and to establish

[ 461 U.S. Page 329]

     residence there. A bona fide residence requirement simply requires that the person does establish residence before demanding the services that are restricted to residents.

There is a further, independent justification for local residence requirements in the public-school context. As we explained in Milliken v. Bradley, 418 U.S. 717 (1974):

"No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process. . . . [Local] control over the educational process affords citizens an opportunity to participate in decision-making, permits the structuring of school programs to fit local needs, and encourages 'experimentation, innovation, and a healthy competition for educational excellence.'" Id., at 741-742 (quoting San Antonio Independent School District v. Rodriquez, 411 U.S. 1, 50 (1973)).

The provision of primary and secondary education, of course, 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.*fn9 The State thus has a substantial interest in

[ 461 U.S. Page 330]

     imposing bona fide residence requirements to maintain the quality of local public schools.


The central question we must decide here is whether § 21.031(d) is a bona fide residence requirement.*fn10 Although the meaning may vary according to context, "residence" generally requires both physical presence and an intention to remain.*fn11 ...

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