482 F.Supp. 212 (S.D.Tex. 1979), Civ. A. B-77-296, Arredondo v. Brockette

Docket Nº:Civ. A. B-77-296
Citation:482 F.Supp. 212
Party Name:Arredondo v. Brockette
Case Date:December 19, 1979
Court:United States District Courts, 5th Circuit, Southern District of Texas
 
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Page 212

482 F.Supp. 212 (S.D.Tex. 1979)

Maria ARREDONDO as next friend for Andres Lopez, Jesus Carrillo as next friend for Fidel Alvares, Mrs. Artino Garza as next friend for Dolores Michelle Rodriguez, Oralia Martinez as next friend for Delia and Roberto Morales, Flora Falcon as next friend for Rita Gomez, Antonio Gutierrez as next friend for Silvestre Marquez Lopez, and Victoria Martinez as next friend for Marta Gutierrez-Gonzalez, Plaintiffs,

v.

M. L. BROCKETTE, Commissioner of Education in his official capacity, the Texas Education Agency, Pharr-San Juan-Alamo Independent School District, McAllen Independent School District, Mission Independent School District, Harlingen Independent School District, and Arturo Guerra, Rodney Cathy, Kenneth White, and Dan Ives, Individually and in their official capacities, Defendants.

Civ. A. No. B-77-296.

United States District Court, S.D. Texas

Dec. 19, 1979

Page 213

Edward J. Tuddenham, Texas Rural Legal Aid, Inc., Farm Worker Division, Hereford, Tex., David Horton, Timoteo E. Gomez, Texas Rural Legal Aid, Inc., Brownsville, Tex., James S. Herrmann, Texas Rural Legal Aid, Inc., Harlingen, Tex., for plaintiffs.

Gregory Wilson, Asst. Atty. Gen., Austin, Tex., for defendants Brockette and Texas Education.

Travis Hiester, McAllen, Tex., for defendant McAllen ISD.

Mario E. Ramirez, McAllen, Tex., for defendant Pharr-San Juan-Alamo ISD.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

KAZEN, District Judge.

As will be more fully detailed below, the instant suit was originally filed asking the Court to declare unconstitutional a state statute and to enjoin the attempted enforcement of same. A hearing was held on October 26, 1979, at which time evidence on the merits was received. Pursuant to Rule 52, Federal Rules of Civil Procedure, the Court now submits its Findings of Fact and Conclusions of Law. Virtually all of the findings of fact are based upon stipulations made between the parties.

FINDINGS OF FACT

1. Both Plaintiff Roberto Morales and Plaintiff Rita Gomez are United States citizens.

2. Each child is over five years of age and under eighteen years of age.

3. Plaintiff Roberto Morales lives within the McAllen Independent School District for the primary purpose of attending school and learning English.

4. Plaintiff Rita Gomez lives within the Pharr-San Juan-Alamo School District for the primary purpose of attending school.

5. Neither Plaintiff resides with his or her parent, legal guardian, or other person

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having lawful control of him under a court order.

6. Neither Plaintiff has a parent, legal guardian, or other person having lawful control of him residing in the McAllen or Pharr-San Juan-Alamo School Districts.

7. Both Plaintiffs would otherwise be eligible for admission to the public free schools under the provisions of Tex.Educ.Code Ann. tit. 2, s 21.031(c) (Vernon Supp.1978), which provides:

The board of trustees of any public free school district of this state shall admit into the public free schools of the district free of tuition all persons who are either citizens of the United States or legally admitted aliens and who are over five and not over 21 years of age at the beginning of the scholastic year if such person or his parent, guardian or person having lawful control resides within the school district.

8. Both Plaintiffs were denied admission to the Texas free schools under the provisions of Tex.Educ.Code Ann. tit. 2, s 21.031(d) (Vernon Supp.1978), which provides:

In order for a person under the age of 18 years to establish a residence for the purpose of attending the public free schools separate and apart from his parent, guardian, or other person having lawful control of him under an order of a court, it must be established that his presence in the school district is not for the primary purpose of attending the public free schools. The board of trustees shall be responsible for determining whether an applicant for admission is a resident of the school district for purposes of attending the public schools.

9. Plaintiff Roberto Morales began living in McAllen Independent School District at the beginning of the 1977 school year and has continuously resided there since that time.

10. Plaintiff Roberto Morales only intends to reside in the McAllen Independent School District until he completes his education.

11. While Plaintiff Roberto Morales was denied admission to the McAllen Independent School District in 1977 and 1978, he was granted permission to attend school in November, 1978, contingent upon the payment of tuition. (See Pl.Exh. No. 2).

12. Plaintiff Roberto Morales and the person with whom he is residing are both indigent.

13. In November, 1978, tuition in the amount of $378.00 was paid on behalf of Plaintiff Roberto Morales by the Texas Rural Legal Aid, Inc. The parties apparently dispute whether these funds were those of the corporation itself or whether they were actually furnished by the family of Morales. Insufficient evidence was presented to enable the Court to resolve this point but the Court regards the issue as irrelevant to the ultimate disposition of the case. (Pl.Exh. No. 3).

14. Plaintiff Roberto Morales has not paid tuition for the Spring, 1978, or Fall, 1979, semesters and he was originally informed that his continued enrollment was conditioned upon the payment of all monies due and the availability of space.

15. Plaintiff Roberto Morales was expelled from school on November 28, 1978, for failure to pay tuition. On December 12, 1979, this Court issued a preliminary injunction returning him to school conditioned upon his first posting a bond in the sum of $1,224.00 to secure Defendant McAllen School District's claims for tuition against Plaintiff. The Plaintiff is now in school pending ultimate determination of this case on the merits.

16. Plaintiff Rita Gomez only intends to reside in the Pharr-San Juan-Alamo School District until she completes her education.

17. Plaintiff Rita Gomez was denied admission to school for the 1979-80 school year by officials of the Pharr-San Juan-Alamo School District.

18. Plaintiff Rita Gomez and the person with whom she is residing are both indigent.

19. Plaintiff Delia Morales, a United States citizen and the sister of Plaintiff

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Roberto Morales, was also denied admission to the McAllen Independent School District, pursuant to s 21.031(d). She was then admitted upon paying tuition, but subsequently withdrew from school and returned to Mexico. Her tuition was refunded by the McAllen School District. See (Pl.Exh. 5).

20. According to admissions contained in the pleadings, Plaintiff Fidel Alvares, a United States citizen, was also denied admission to the McAllen Independent School District, pursuant to s 21.031(d), but no further evidence was presented either in support of or in opposition to his claim.

21. According to the pleadings, Plaintiff Andres Lopez, a United States citizen, was originally denied admission to the Pharr Independent School District, pursuant to s 21.031(d), but was subsequently admitted. No further evidence was presented either in support of or in opposition to his claim.

22. Prior to trial, the Plaintiffs voluntarily dismissed their cause of action as to Defendants Harlingen Independent School District and Dan Ives. The dispute of Plaintiffs Silvestre Marquez Lopez and Marta Gutierrez-Gonzalez was with these Defendants; therefore, their claims will not be adjudicated herein.

23. Prior to trial, Plaintiffs moved and were granted permission to dismiss, without prejudice, their cause of action against Defendants Mission Independent School District and Kenneth White. Since, according to the motion, no known Plaintiffs are currently being excluded from the district, the claim of Plaintiff Dolores Michelle Rodriguez has been rendered moot and incapable of adjudication.

24. None of the adults with whom the Plaintiffs reside desire to become the legal guardian or legal custodian of the child who lives with them.

25. The Texas statute in question operates to absolutely deprive a child of an education if it is determined that the child resides apart from his or her parent, legal guardian or one having lawful control over him or her for the primary purpose of attending the free public school and that child is indigent.

26. If Section 21.031(d) of the Texas Education Code were declared unconstitutional, it would, in all probability, cause the immediate enrollment of thousands of children from other states and countries who are United States citizens whose parents do not reside within the relevant school district. Furthermore, the enrollment would probably increase significantly each year.

27. The legislative classification imposing the residency requirement applies to intrastate school district transfers as well as transfers of children from other states and countries.

28. Declaring the statute unconstitutional would cause substantial numbers of intra-district transfers, which would further cause school populations to fluctuate. Also, the intrastate migration of students between school districts would cause problems in the athletic programs by possibly encouraging the recruitment of athletes.

29. Fluctuating school populations would make it impossible to predict enrollment figures even on a semester-by-semester basis, causing over-or-under-estimates on teachers, supplies, materials, etc.

30. The increased enrollment of students would cause overcrowded classrooms and related facilities; over-large teacher-pupil ratios; expansion of bilingual programs; the purchase of books, equipment, supplies and other customary items of...

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