Doe v. Plyler, Civ. A. No. TY-77-261-CA.

• Court: United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
• Writing for the Court: JUSTICE
• Citation: 458 F. Supp. 569
• Docket Number: Civ. A. No. TY-77-261-CA.
• Decision Date: 14 September 1978
• Parties: J. and R. DOE as guardian ad litem for I. Doe, J. D. Doe, E. Doe, D. Doe and O. Doe, J. and E. Roe as guardian ad litem for O. Roe, F. Roe, and N. Roe, F. Boe as guardian ad litem for Z. Boe, S. Boe, and X. Boe, H. and J. Loe as guardian ad litem for A. Loe, L. Loe, M. Loe, G. Loe, and R. Loe, on behalf of themselves and others similarly situated, v. James PLYLER, Superintendent of the Tyler Independent School District, in his official capacity, Lewis Lampkin, Charles Childers, Carl Ross, Martin Edwards, Vernon Goss, Michael Breedlove, and Robert Randall, in their official capacity as Members of the Board of Trustees of the Tyler Independent School District.

458 F. Supp. 569

J. and R. DOE as guardian ad litem for I. Doe, J. D. Doe, E. Doe, D. Doe and O. Doe, J. and E. Roe as guardian ad litem for O. Roe, F. Roe, and N. Roe, F. Boe as guardian ad litem for Z. Boe, S. Boe, and X. Boe, H. and J. Loe as guardian ad litem for A. Loe, L. Loe, M. Loe, G. Loe, and R. Loe, on behalf of themselves and others similarly situated,
v.
James PLYLER, Superintendent of the Tyler Independent School District, in his official capacity, Lewis Lampkin, Charles Childers, Carl Ross, Martin Edwards, Vernon Goss, Michael Breedlove, and Robert Randall, in their official capacity as Members of the Board of Trustees of the Tyler Independent School District.

Civ. A. No. TY-77-261-CA.

United States District Court, E. D. Texas, Tyler Division.

September 14, 1978.

458 F. Supp. 570

Peter D. Roos, Mexican-American Legal Defense Fund, San Francisco, Cal., Larry R. Daves, Tyler, Tex., Michael B. Wise, U. S. Dept. of Justice, Education Section, Civil

458 F. Supp. 571

Rights Division, Washington, D. C., for plaintiffs

John C. Hardy, Tyler, Tex., Richard L. Arnett, Asst. Atty. Gen., Austin, Tex., for defendants.

MEMORANDUM OPINION

JUSTICE, District Judge.

Procedural History

This civil action began in September, 1977, when plaintiffs, a group of Mexican children who had entered the United States illegally and currently reside in Smith County, Texas,¹ sought injunctive and declaratory relief from this court by and through their parents, as next friends, against their exclusion from the public schools in the Tyler Independent School District ("Tyler I.S.D."). The defendant Board of Trustees of Tyler I.S.D. had refused to enroll any undocumented child,² absent a tuition fee of $1,000 per year, pursuant to section 21.031 of the Texas Education Code (Vernon Supp.1976) ("section 21.031"). This statute provides, in pertinent part:

(a) All children who are citizens of the United States or legally admitted aliens and who are over the age of five years and under the age of 21 years on the first day of September of any scholastic year shall be entitled to the benefits of the Available School Fund for that year.

(b) Every child in this state who is a citizen of the United States or a legally admitted alien and who is over the age of five years and not over the age of 21 years on the first day of September of the year in which admission is sought shall be permitted to attend the public free schools of the district in which he resides or in which his parent, guardian, or the person having lawful control of him resides at the time he applies for admission.

(c) 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 a person or his parent, guardian or person having lawful control resides within the school district.

Although section 21.031 had been enacted in 1975,³ the Tyler I.S.D. continued to enroll

458 F. Supp. 572

undocumented children, free of charge, until the 1977-1978 school year, when they observed the increasing number of such children. In July, 1977, fearing that the Tyler I.S.D. would become a "haven" for illegal aliens, the Board of Trustees of the school district adopted the following policy, designed to implement the statute

The Tyler Independent School District shall enroll all qualified students who are citizens of the United States or legally admitted aliens, and who are residents of this school district, free of tuition charge. Illegal alien children may enroll and attend schools in the Tyler Independent School District by payment of the full tuition fee.

A legally admitted alien is one who has documentation that he or she is legally in the United States, or a person who is in the process of securing documentation from the United States Immigration Service, and the Service will state that the person is being processed and will be admitted with proper documentation.

A complaint and motion for preliminary injunction were filed by plaintiffs on September 6, 1977. The complaint alleged that the Texas statute, as implemented by the Tyler I.S.D. policy, denied plaintiffs equal protection of the laws and, further, that the statute was preempted by the federal Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq.⁴ On the same day, the court set a hearing on the application for preliminary injunction for September 9, and immediately notified the Attorney General of the State of Texas, the United States Attorney for the Eastern District of Texas, and the United States Department of Justice of the pendency and nature of the lawsuit.

At the September 9 hearing, the court granted the state's oral motion to intervene as a party defendant, made by and through the Attorney General. All parties, as well as the United States Department of Justice, were represented. Fearing disclosure of their identities, plaintiffs had filed their complaint under pseudonyms, and at the hearing moved for a protective order limiting the circumstances under which, and the persons to whom, plaintiffs' true names might be revealed. The motion was granted and the order issued; however, the court advised the Department of Justice representatives that the order did not bind any officer of the United States who might desire to take action against plaintiffs and their parents for violations of the federal immigration laws.

The court thereupon proceeded to receive evidence, including testimony by the parents of the plaintiffs. Finding that plaintiffs had shown probability of success on the merits as to their equal protection claim, and that they would suffer irreparable harm should interim relief be denied, the court granted the application for preliminary injunction. Findings of Fact and Conclusions of Law were entered on September

458 F. Supp. 573

12, 1977. A final hearing was scheduled for December 12, 1977

The final hearing continued for two days. The State of Texas, by the Attorney General, had filed an answer and participated fully as a defendant. The United States Department of Justice, pursuant to motion, was granted leave to participate as an amicus curiae. While the attorney representing the Government questioned several of the witnesses, he did not produce any independent witnesses. Plaintiffs offered into evidence the record of proceedings at the September hearing and, in addition, presented testimony of four expert witnesses. Plaintiffs' witnesses testified on the following topics: (1) the historical framework of illegal emigration from Mexico into the United States; (2) the general characteristics of illegal immigrants; (3) school financing in Texas; and (4) the educational needs of Mexican children. The defendant school board presented testimony from the Superintendent and Business Manager of the Tyler I.S.D. The State of Texas presented witnesses from the United States Immigration and Naturalization Service, the Texas Education Agency, and the Houston Independent School District ("Houston I.S.D."), as well as two expert witnesses, who testified as to immigration and educational needs of Mexican students. In her opening statement, the Assistant Attorney General described the nature and scope of the state's evidence:

Basically, what we will attempt to show or what we will show is the impact on the educational system, that it impacts to the detriment of the citizens, the legally admitted child, particularly in the border areas, and the areas in which you find large Mexican-American enclaves, which Tyler is not one of those areas. That's why you don't see the impact from Tyler like you see in the Houston I.S.D., Brownsville, San Antonio, Eagle Pass, Abilene — different places around the state where there are Mexican-American enclaves, mostly the border areas.

Record of Proceedings, Dec. 12, 16, 1977 ("Tr. 12/12"), at 163. At the conclusion of the hearing and after consultation with the attorneys, the court issued a briefing schedule.

Early in January, 1978, plaintiffs moved to amend their complaint to conform to the evidence and to add the Governor of Texas and the Commissioner of Education of the State of Texas as parties to the action. The motion was granted on January 5, 1978, and the amended complaint filed the same day. More than two months later, the State of Texas filed a motion for reconsideration and a motion to present additional evidence, based on the grounds that the Attorney General's office represented neither the Governor of Texas nor the Commissioner of Education; that counsel for the state and the prospective witnesses had always assumed that the instant civil action would affect only the Tyler I.S.D. and not other school districts throughout the state; and that the evidence offered at trial had been consciously limited by this understanding.

Immediately prior to the trial on the merits, plaintiffs filed a brief which included references to the evidence they would offer at trial. The United States filed a post-trial brief, including substantial references to the evidence, in which it took the position that defendants' statute and policy violated the fourteenth amendment guarantee of equal protection of the laws, but were not invalid under the federal preemption doctrine. The United States had already submitted to the court and the parties copies of the Preliminary Report of the Domestic Council Committee on Illegal Aliens, December 1976 ("Preliminary Report"). The State of Texas chose to submit its briefs filed in a similar challenge to section 21.031, Hernandez v. Houston Independent School District, 558 S.W.2d 121 (Tex.Civ.App. — Austin 1977, writ ref'd n.r.e.).

The Hernandez case had been brought more or less concurrently with the instant action by a group of undocumented children living within the Houston I.S.D....