648 F.2d 425 (5th Cir. 1981), 80-1031, Arredondo v. Brockette

Docket Nº:80-1031.
Citation:648 F.2d 425
Party Name:Maria ARREDONDO, et al., Plaintiffs-Appellants, v. M. L. BROCKETTE, et al., Defendants-Appellees.
Case Date:June 19, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 425

648 F.2d 425 (5th Cir. 1981)

Maria ARREDONDO, et al., Plaintiffs-Appellants,

v.

M. L. BROCKETTE, et al., Defendants-Appellees.

No. 80-1031.

Unit A

United States Court of Appeals, Fifth Circuit

June 19, 1981

Page 426

[Copyrighted Material Omitted]

Page 427

Edward J. Tuddenham, Texas Rural Legal Aid, Inc., Hereford, Tex., for plaintiffs-appellants.

Fortunato P. Benavides, McAllen, Tex., for Pharr-San Juan-Alamo Independent School Dist.

Gregory Wilson, Asst. Atty. Gen., Austin, Tex., Travis Hiester, Mario E. Ramirez, Jr., McAllen, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, GEWIN [*] and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

The sole issue in this case is the constitutionality vel non of Tex.Educ.Code Ann. tit. 2, § 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. (Emphasis added.)

Appellants are United States citizens between five and eighteen years of age, not living with their parents or legal guardians, who have chosen to live in a school district for the primary purpose of attending its free public schools. They were denied tuition-free admission to the public schools because of the strictures of the challenged statute. The district court, 482 F.Supp. 212, upheld the statute. We affirm.

The original complaint was filed as a class action, but this aspect was eliminated by an amended complaint. Only two of the original plaintiffs remain, Roberto Morales and Rita Gomez. 1 It is contended that § 21.031(d) of the Texas Education Code violates the due process and equal protection clauses of the fourteenth amendment of the Constitution.

Appellants argue that the challenged statute, as applied, results in invidious discrimination against Mexican-Americans, violating their right to equal protection. The Supreme Court has found classifications based on race or alienage inherently suspect and subject to close judicial scrutiny. Graham v. Richardson, 403 U.S. 365,

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371-72, 91 S.Ct. 1848, 1851-1852, 29 L.Ed.2d 534 (1971). Were this statute to be so classified, it would be subjected to strict judicial scrutiny and would not be upheld unless a compelling state interest were shown. San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). We do not address this question because discriminatory application is not alleged in the amended complaint. The issue may not be revived on appeal.

Appellants assert a second ground for application of the compelling interest test the statute improperly burdens the fundamental right of interstate travel. Strict judicial scrutiny is also appropriate in those situations in which a constitutionally protected right is infringed. San Antonio School District v. Rodriguez, 411 U.S. at 40, 93 S.Ct. at 1300. Although not explicitly mentioned in the Constitution, the right to interstate travel has been repeatedly recognized as a basic right, fundamental to the concept of our federal union. United States v. Guest, 383 U.S. 745, 757-58, 86 S.Ct. 1170, 1177-1178, 16 L.Ed.2d 239 (1966). We recognize that the statutory definition of residency in § 21.031(d) denies tuition-free admission to public school to those whose presence in the school district is primarily for that purpose. All residency requirements, however, are not unconstitutional. The Supreme Court has distinguished between residency requirements and durational residency requirements, finding only the latter violative of the right to travel. See McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976). Based on this distinction, the district court declined to apply the strict scrutiny standard, requiring instead that the statute be supported by minimum rationality and, on that basis, found the statute constitutional.

We agree in principle with the district court's analysis of the right to interstate travel. Nevertheless, we defer the determination whether the strict scrutiny or rational basis yardstick should be applied for under either measure Texas' interests in enacting the statute are sufficient. We need not decide whether in another instance involving a similar statute a legitimate state interest alone would suffice. We are in accord with the district court's articulation of the state's interests, expressed as follows:

"A state has a 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. Vlandis v. Kline, (412 U.S. 441, 452-53, 93 S.Ct. 2230, 2236-2237, 37 L.Ed.2d 63 (1973)). Similarly, the state would have an interest in...

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