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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 As the Supreme Court of Maine explained over a century ago:

[ 461 U.S. Page 331]

     "When . . . a person voluntarily takes up his abode in a given place, with intention to remain permanently, or for an indefinite period of time; or, to speak more accurately, when a person takes up his abode in a given place, without any present intention to remove therefrom, such place of abode becomes his residence. . . ." Inhabitants of Warren v. Inhabitants of Thomaston, 43 Me. 406, 418 (1857).

This classic two-part definition of residence has been recognized as a minimum standard in a wide range of contexts time and time again.*fn12

In Vlandis v. Kline, we approved a more rigorous domicile test as a "reasonable standard for determining the residential status of a student." 412 U.S., at 454. That standard was described as follows: "'In reviewing a claim of in-state status, the issue becomes essentially one of domicile. In general, the domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning.'" Ibid. (quoting Opinion of the Attorney General of the State of

[ 461 U.S. Page 332]

     Connecticut Regarding Non-Resident Tuition, Sept. 6, 1972); cf. n. 6, supra. This standard could not be applied to school-age children in the same way that it was applied to college students. But at the very least, a school district generally would be justified in requiring school-age children or their parents to satisfy the traditional, basic residence criteria -- i. e., to live in the district with a bona fide intention of remaining there*fn13 -- before it treated them as residents.

Section 21.031 is far more generous than this traditional standard. It compels a school district to permit a child such as Morales to attend school without paying tuition if he has a bona fide intention to remain in the school district indefinitely,*fn14 for he then would have a reason for being there other than his desire to attend school: his intention to make his home in the district.*fn15 Thus § 21.031 grants the benefits of residency to all who satisfy the traditional requirements. The statute goes further and extends these benefits to many

[ 461 U.S. Page 333]

     children even if they (or their families) do not intend to remain in the district indefinitely. As long as the child is not living in the district for the sole purpose of attending school, he satisfies the statutory test. For example, if a person comes to Texas to work for a year, his children will be eligible for tuition-free admission to the public schools. See Tr. of Oral Arg. 37. Or if a child comes to Texas for six months for health reasons, he would qualify for tuition-free education. See id., at 31. In short, § 21.031 grants the benefits of residency to everyone who satisfies the traditional residence definition and to some who legitimately could be classified as nonresidents. Since there is no indication that this extension of the traditional definition has any impermissible basis, we certainly cannot say that § 21.031(d) violates the Constitution.


The Constitution permits a State to restrict eligibility for tuition-free education to its bona fide residents. We hold that § 21.031 is a bona fide residence requirement that satisfies constitutional standards. The judgment of the Court of Appeals accordingly is



648 F.2d 425, affirmed.

JUSTICE BRENNAN, concurring.

I join the Court's opinion. I write separately, however, to stress that this case involves only a facial challenge to the constitutionality of the Texas statute. Ante, at 325 and 330, n. 10. In upholding the statute, the Court does not pass on its validity as applied to children in a range of specific factual contexts. In particular, the Court does not decide whether the statute is constitutional as applied to Roberto Morales, a United States citizen whose parents are nonresident aliens. If this question were before the Court, I believe that a different set of considerations would be implicated which might affect significantly an analysis of the statute's constitutionality.

[ 461 U.S. Page 334]

     JUSTICE MARSHALL, dissenting.

Shortly after Roberto Morales reached his eighth birthday, he left his parents' home in Reynosa, Mexico, and returned to his birthplace, McAllen, Tex. He planned to make his home there with his married sister (petitioner) in order to attend school and learn English. Morales has resided with his sister in McAllen for the past five years and intends to remain with her until he has completed his schooling. The Texas statute grants free public education to every school-age child who resides in Texas except for one who lives apart from his parents or guardian for educational purposes. Accordingly, Morales has been refused free admission to the schools in the McAllen district.

The majority upholds the classification embodied in the Texas statute on the ground that it applies only to the class of children who are considered non residents. The majority's approach reflects a misinterpretation of the Texas statute, a misunderstanding of the concept of residence, and a misapplication of this Court's past decisions concerning the constitutionality of residence requirements. In my view, the statutory classification, which deprives some children of an education because of their motive for residing in Texas, is not adequately justified by the asserted state interests. Because I would hold the statute unconstitutional on its face under the Equal Protection Clause, I respectfully dissent.


At the outset it is important to make clear that the statute upheld by the Court is not the statute actually before us. Petitioner challenges the constitutionality of the classification created by the Texas statutes governing eligibility for admission to the local free schools. Under Texas law, a child who lives in the State may generally attend school where he lives. Tex. Educ. Code Ann. § 21.031(b) (Supp. 1982-1983). This is true whether the child lives with his parents or guardian, or lives apart from them under the care and control of a "custodian,"

[ 461 U.S. Page 335]

     who is a responsible adult other than a parent or guardian to whom the child may or may not be related. Tex. Fam. Code Ann. § 51.02(4) (1975).*fn1 Section 21.031 creates an exception, however, for children whose "presence in the school district is . . . for the primary purpose of attending the public free schools." § 21.031(d). Those children must reside with "[a] parent, guardian, or other person having lawful control," ibid., to receive free education. If they reside with a custodian, they are denied free public education. Ibid.

The Court does not address the constitutionality of the classification contained in the statute. Instead, it upholds as constitutional on its face a statute that denies free public education only to a portion of the children actually described in the Texas statute: children who reside in the State solely for the purpose of attending the local schools and who also intend to leave the district after the completion of their education. By inferring that children will not be excluded from the local free schools if they "intend to remain indefinitely" in the district, the Court is able to characterize the Texas statute as imposing a "traditional residency standard." Ante, at 332, and n. 13. Having characterized the statute in this fashion, the Court then reasons that because a bona fide residence requirement has been upheld in numerous contexts, the Texas statute is a fortiori permissible since it does not deny free education to "resident" children, but only to nonresident children whose presence is motivated by the availability of free education. Ante, at 332-333.

By its terms the Texas statute applies to any child whose presence in the district is motivated primarily by a desire to

[ 461 U.S. Page 336]

     obtain free education. The statute draws no further distinction between those who intend to leave upon the completion of their education and those who do not. No Texas court has adopted the narrowing interpretation on which this Court relies.*fn2 Certainly the manner in which the statute has been applied until now would not support this interpretation.*fn3 Moreover, the courts below never addressed the question of the constitutionality of this statute as presently interpreted by the majority. It is contrary to the settled practice of this Court to address the constitutionality of a state statute which, as newly interpreted at this late date, has never been considered by a lower court. The proper course in such a situation would be to dismiss the writ of certiorari as improvidently granted, see The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 183 (1959), or to remand for further

[ 461 U.S. Page 337]

     proceedings. See Toll v. Moreno, 441 U.S. 458 (1979) (per curiam).

The Court nevertheless proceeds to address the constitutionality of the statute as newly interpreted. For the reasons elaborated below, I believe the majority errs in its approach to that question.


In the Court's view, because the Texas statute employs a "traditional" residence requirement in a uniform fashion, and indeed is even more generous since it permits some "nonresidents" to obtain free education, the statute need be subjected only to the most minimal judicial scrutiny normally accorded bona fide residence requirements. For the reasons stated below, this conclusion rests on a number of false assumptions and misconceptions. The Court mistakenly equates the Texas statute with a residence requirement, when in fact the statute, as reinterpreted by the Court, imposes a standard even more difficult to meet than a domicile requirement for access to public education. Moreover, even if it were permissible to provide free public education only to those residents who intend to remain in the State, the Texas statute does not impose that restriction uniformly.


The majority errs in reasoning that, because "intent to remain indefinitely" in a State is a "traditional" component of many state residence requirements, the imposition of that restriction on free public education is presumptively valid. Ante, at 330-333.*fn4 The standard described by the Court is not

[ 461 U.S. Page 338]

     the traditional standard for determining residence, but is, if anything, the standard for determining domicile. Although this Court's prior cases suggest that, as a general matter, a State may reserve its educational resources for its residents, there is no support for the view that a State may close its schools to all but domiciliaries.

A difference between the concepts of residence and domicile has long been recognized. See, e. g., Mitchell v. United States, 21 Wall. 350 (1875); Penfield v. Chesapeake, O. & S. R. Co., 134 U.S. 351 (1890); Texas v. Florida, 306 U.S. 398 (1939). A person is generally a resident of any State with which he has a well-settled connection. "[Mere] lodging or boarding or temporary occupation" is not enough to establish a residence. Dwyer v. Matson, 163 F.2d 299, 303 (CA10 1947). See generally Reese & Green, That Elusive Word, "Residence," 6 Vand. L. Rev. 561, 563 (1953). Under the law of Texas, for example, "[residence] may be temporary or permanent in nature. However, residence generally requires some condition greater than mere lodging. The term implies a place of abode, albeit temporary, rather than a mere transient lodging." Whitney v. State, 472 S. W. 2d 524, 525 (Tex. Crim. App. 1971) (citation omitted). See, e. g., Brown v. Boulden, 18 Tex. 431, 432 (1857); Travelers Indemnity Co. v. Mattox, 345 S. W. 2d 290, 292 (Tex. Civ. App. 1961); Prince v. Inman, 280 S. W. 2d 779 (Tex. Civ. App. 1955). "Intent to remain indefinitely" in the State need not be shown in order to be considered a resident of a

[ 461 U.S. Page 339]

     State.*fn5 As the Texas Supreme Court stated in Snyder v. Pitts, 150 Tex. 407, 413, 241 S. W. 2d 136, 139 (1951), "[from] the fact that there can be but one domicile and several residences, we arrive at the conclusion that the element of 'intent to make it a permanent home' is not necessary to the establishment of a second residence away from the domicile."

[ 461 U.S. Page 340]

     On the other hand, an individual has only one domicile, which is generally the State with which he is currently most closely connected, but which may be a State with which he was closely connected in the past. See generally Williams v. North Carolina, 325 U.S. 226, 229 (1945); District of Columbia v. Murphy, 314 U.S. 441 (1941); Williamson v. Osenton, 232 U.S. 619 (1914). Traditionally, an individual has been said to acquire a new domicile when he resides in a State with "the absence of any intention to live elsewhere," id., at 624, or with "'the absence of any present intention of not residing permanently or indefinitely in' the new abode." Ibid., citing A. Dicey, The Conflict of Laws 111 (2d ed. 1908). The concept of domicile has typically been reserved for purposes that clearly require general recognition of a single State with which the individual, actually or presumptively, is most closely connected.*fn6

The majority errs in assuming that, as a general matter, States are free to close their schools to all but domiciliaries of the State. To begin with, it is clear that residence, not domicile, is the traditional standard of eligibility for lower school education,*fn7 just as residence often has been often used to determine

[ 461 U.S. Page 341]

     whether an individual is subject to state income tax, whether his property in the State is exempt from attachment, and whether he is subject to jury duty.*fn8 Moreover, this Court's prior decisions which speak of the constitutionality of a bona fide residence standard provide no support for the majority's assumption. Although this Court has referred to a domicile requirement with approval in the context of higher education, it is incumbent upon the State of Texas to demonstrate that the classification transplanted from another statutory scheme is justified by "'the purposes for which the state desires to use it.'" Plyler v. Doe, 457 U.S. 202, 226 (1982), quoting Oyama v. California, 332 U.S. 633, 664-665 (1948) (Murphy, J., concurring).


Even assuming that a State may constitutionally deny free public education to all persons, including residents, who fail to meet the traditional standard for acquiring a domicile, this

[ 461 U.S. Page 342]

     is not what the Texas statute does. Section 21.031(d) operates to deny public education to some persons who meet the traditional standard. As interpreted by the Court, the Texas statute denies free public education to any child who intends to leave the district at some point in the future. Yet such an intention does not preclude an individual from being considered a domiciliary under the prevailing conception of domicile.

When a person lives in a single geographical area, which is the center of his domestic, social, and civil life, that place has all the indicia of his domicile, and will generally be so regarded irrespective of his intent to make a home somewhere else in the distant future.*fn9

"A man may acquire a domicile, if he be personally present in a place and elect that as his home, even if he never design to remain there always, but design at the end of some short time to remove and acquire another. A clergyman of the Methodist Church who is settled for two years may surely make his home for two years with his flock, although he means, at the end of that period, to remove and gain another." Report of the Committee on Elections re Cessna v. Meyers, H. R. Rep. No. 11, 42d Cong., 2d Sess., 3 (1872).

Thus, the majority is surely incorrect when it states that an individual who intends to leave the district as many as 10

[ 461 U.S. Page 343]

     years later cannot possibly satisfy general domicile requirements. Ante, at 330, n. 10.*fn10


Even if it were permissible to deny free education to residents who expect to leave the State at some future date, the statute could not escape constitutional scrutiny because it does not apply this test uniformly. Under Tex. Educ. Code Ann. § 21.031 (Supp. 1982-1983), the public free schools of Texas are generally open to any child who is a resident of the State. Admission is not limited to residents who intend to remain indefinitely in Texas. See Brownsville Independent School Dist. v. Gamboa, 498 S. W. 2d 448, 450 (Tex. Civ. App. 1973).*fn11 As the Attorney General of Texas explained in

[ 461 U.S. Page 344]

     principle was reaffirmed last Term in Plyler v. Doe which struck down provisions of Tex. Educ. Code Ann. § 21.031 (Supp. 1982-1983) which denied a free public education to undocumented school-age children. The State of Texas defended the alienage classification as a mere residence requirement. This Court rejected the assertion because the provisions excluded undocumented children who "comply with the established standards by which the State historically tests residence." 457 U.S., at 227, n. 22. We observed that while the State is "as free to apply to undocumented children established criteria for determining residence as [it is] to apply those criteria to any other child who seeks admission," the State's classification will not escape constitutional scrutiny merely because it "[defines] a disfavored group as nonresident." Ibid.


I continue to believe that, in analyzing a classification under the Equal Protection Clause, the appropriate level of scrutiny depends on "the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 99 (1973) (MARSHALL, J., dissenting). It has become increasingly clear that the approach actually taken in our cases focuses "upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification." Dandridge v. Williams, 397 U.S. 471, 520-521 (1970) (MARSHALL, J., dissenting). See, e. g., Mississippi University for Women v. Hogan, 458 U.S. 718 (1982); Plyler v. Doe, supra; Zobel v.

[ 461 U.S. Page 346]


The Texas statute is not narrowly tailored to achieve a substantial state interest. The State of Texas does not attempt to justify the classification by reference to its interest in the safety and well-being of children within its boundaries. The State instead contends that the principal purpose of the classification is to preserve educational and financial resources for those most closely connected to the State. Ante, at 329-330, n. 9.*fn15 The classification of children according to

[ 461 U.S. Page 348]

     their motive for residing in the State cannot be justified as a narrowly tailored means of limiting public education to children "closely connected" with the State. Under the Texas scheme, some children who are "residents" of the State in every sense of that word are nevertheless denied an education. 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. A child residing in the State for any other reason, no matter how ephemeral, will receive a free education even if he plans to leave before the end of the school year. Whatever interest a State may have in preserving its educational resources for those who have a sufficiently close connection with the State, that interest does not justify a crude statutory classification which grants and withholds public education on a basis which is related only in a haphazard way to the extent of that child's connection with the State. Cf. Plyler v. Doe, supra, at 227.

For similar reasons, the statute is not carefully designed to reserve state resources only for those who will have the most enduring connection with the State.*fn16 As a general matter, the State concededly enrolls "school-age children [who intend] to remain only six months" in Texas. Plyler v. Doe, supra, at 227, n. 22. For example, "if a child comes to Texas for six months for health reasons, he would qualify for tuition-free education." Ante, at 333. Yet the State excludes from its schools a child who enters the district at the age of seven with the intent to remain for at least 10 more years in order to complete his education.

The State also seeks to justify § 21.031(d) as a means of preventing undesirable fluctuations in the student population from year to year. Ante, at 329, n. 9. The classification of students based on their motive for residing in the State cannot

[ 461 U.S. Page 349]

     be justified on this basis. To begin with, Texas may not rely on a vague, unsubstantiated fear that, in the absence of a barrier to migration, children throughout the State and from outside the State will leave their parents and relocate within Texas solely to attend the school of a particular district, and that they will do so in numbers that are wholly unpredictable. There is no evidence whatsoever that the migration of schoolage children in unpredictable numbers has caused administrative problems, and the mere conjecture that such problems would arise in the absence of § 21.031(d) cannot be the basis for upholding a classification that singles out some children who reside in the State and denies them a public education. Cf. Memorial Hospital v. Maricopa County, 415 U.S. 250, 268-269 (1974); Shapiro v. Thompson, 394 U.S. 618, 634-635 (1969).*fn17

Moreover, even if such evidence were available, § 21.031 cannot be justified as a means of preventing interdistrict migration of students whose parents live in Texas, since the provision was not enacted with that general problem in mind. See Schlesinger v. Ballard, 419 U.S. 498, 520 (1975) (BRENNAN, J., dissenting); McGinnis v. Royster, 410 U.S. 263, 270 (1973) (the challenged classification must further "some legitimate, articulated state purpose") (emphasis added). As the Court of Appeals of Texas acknowledged, "§ 21.031(d) was enacted in response to litigation regarding the rights of alien children to attend Texas schools." Jackson v. Waco Independent School Dist., 629 S. W. 2d 201, 205 (1982) (emphasis added). Indeed, § 21.031(d) is not needed to redress the problems caused by interdistrict migration, since school

[ 461 U.S. Page 350]

     districts have authority quite apart from that provision for requiring students to attend the school in the district within the State in which their parents reside. Ibid., citing Tex. Educ. Code Ann. § 23.26 (1972). Because "the statutory provisions at issue were shaped by forces other than" a general concern with student migration within the State, Trimble v. Gordon, 430 U.S. 762, 775 (1977), that broad concern cannot provide a basis for upholding the statute. Rather, to the extent that concern over fluctuations in student populations underlies § 21.031(d), it must be a concern over the migration into Texas of children from other States and from other countries. There is simply no basis for concluding, however, that interstate migration has or will cause serious problems related to fluctuations in the number of students in each school district.*fn18

Finally, whatever the magnitude of the problems associated with fluctuations in the student population because of migration from without the State, the motive requirement of § 21.031(d) is simply not narrowly tailored to further the state interest in minimizing fluctuations. Just as there is nothing to suggest that the number of children who enter Texas for educational purposes will vary significantly from year to year, there is certainly nothing to suggest that their number will vary to a greater extent than the number who enter for all other purposes. Moreover, once children enter the State

[ 461 U.S. Page 351]

     for educational purposes, they are likely to be the among the most stable members of the school-age population. It is by definition a matter of primary importance to such children that they remain in the district until they complete their schooling. All other children, to whom attending the local schools is a matter of comparative unimportance, may have little tie to the State or to a particular district within the State during their school years. Indeed, 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. 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 populations.


For the foregoing reasons, I reject the majority's conclusion that the Texas statute may be upheld on the ground that it is far more generous than a traditional residence requirement for public education. To the contrary, the statute is less generous since it excludes a class of children who ordinarily would be regarded as Texas residents. Because I believe that the State has not adequately justified its denial of public education to one small class of school-age residents, I would hold that § 21.031(d) violates the Equal Protection Clause. I therefore dissent.


* Robert S. Ogden, Jr., and Charles S. Sims filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.

David Crump filed a brief for the Texas Association of School Boards et al. as amici curiae urging affirmance.

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