Hosier v. Evans

• Decision Date: 26 June 1970
• Docket Number: Civ. No. 332-1969.
• Citation: 314 F. Supp. 316
• Parties: Leverne HOSIER, by her next friend and father Almond Hosier, Ralston Freeland, Hysenth Freeland and Rande Joseph, by their next friend and mother, Mrs. Daphne De Vallard, on behalf of themselves and others, Plaintiffs, v. Dr. Melvin EVANS, Governor of the Virgin Islands, Phillip A. Gerard, Commissioner of Education, Wilfred James, Deputy Commissioner of Education for St. Croix and Vivian Anduze, Joseph Aubain, Gerard Christian, Thelma Dalmida, Joseph Jerz, Eirene McDonald, and Rufus Martin, Members of the V. I. Board of Education, Defendants.
• Court: U.S. District Court — Virgin Islands

314 F. Supp. 316

Leverne HOSIER, by her next friend and father Almond Hosier, Ralston Freeland, Hysenth Freeland and Rande Joseph, by their next friend and mother, Mrs. Daphne De Vallard, on behalf of themselves and others, Plaintiffs, v. Dr. Melvin EVANS, Governor of the Virgin Islands, Phillip A. Gerard, Commissioner of Education, Wilfred James, Deputy Commissioner of Education for St. Croix and Vivian Anduze, Joseph Aubain, Gerard Christian, Thelma Dalmida, Joseph Jerz, Eirene McDonald, and Rufus Martin, Members of the V. I. Board of Education, Defendants.

Civ. No. 332-1969.

District Court, Virgin Islands, D. St. Croix.

June 26, 1970.

Virgin Islands Community Legal Services by Richard D. Unruh, Leroy A. Mercer, for plaintiffs; Charles L. Dostal, Jr., on the brief.

Peter J. O'Dea, Atty. Gen., Irwin W. Silverlight, Asst. Atty. Gen., for defendants.

MEMORANDUM OPINION

CHRISTIAN, District Judge.

The plaintiffs herein are minor children of school age, each of whom has brought this action by "next friend," one of his parents. They are all aliens and the children of alien parents. They are all lawfully in the Virgin Islands as "non-immigrant" visitors. The period of the "visit" in some cases, approximates, or coincides with, the bonding period of those parents who are "non-immigrants," admitted on working bonds, i. e., six months. In the cases of those plaintiffs whose parents enjoy "immigrant" status, their visits are for such periods of time as the United States Immigration and Naturalization Service may grant. In any case the visiting period may be extended or renewed, and particularly in the cases of the non-immigrant parents, here on work bond, renewal follows as a matter of course unless the employer, for one reason or another cancels the bond.

Plaintiffs pray for declaratory and injunctive relief for themselves, and on behalf of all other non-citizen children, similarly situated. They ask that the Court adjudge that they, as well as all members of the class on whose behalf they sue, are entitled to attend the public schools of the Virgin Islands, and that the Court also enjoin defendants to refrain from excluding plaintiffs and the members of their class from the said public schools.

Named as defendants in the suit are the Governor of the Virgin Islands, the Commissioner of Education, the Deputy Commissioner of Education for St. Croix, and the members of the Virgin Islands Board of Education.

Plaintiffs bring their action pursuant to the provisions of Title 42 U.S.C. Sec. 1983 and Title 28 U.S.C. Secs. 1343(3), 2201 and 2202.¹ They ground their joint claim for relief on violations of sec. 3 of the Revised Organic Act of the V.I. which extends to that territory, among other Articles and Amendments, or portions of them, the "due process" and "equal protection" clauses of the Fourteenth Amendment of the Constitution of the United States.

Defendants in their answer make formal denial of the material allegations of the complaint, and further answering contend that the minor plaintiffs, being non-resident aliens, and of "non-immigrant" status, are but temporary visitors to the Virgin Islands and therefore lack standing to bring this suit. Additionally, defendants contend that the action should be dismissed as the complaint fails to state a cause of action upon which relief can be granted.

Despite defendants' denial of the material allegations of the complaint in their answer, counsel for defendants, at oral argument, adopted the statement of facts set forth in plaintiffs' memorandum in support of their motion for summary judgment.² Indeed no substantial fact issue is raised by the pleading and I find the matter to be ripe for summary judgment.

Defendants rely somewhat heavily on the nice legal distinctions revolving around residence, i. e. domicile. They would have this case turn on the implications, rights and limitations which flow from the concept of domicile. For the purpose of qualification or entitlement to public education, however, I disregard such formalistic distinctions as irrelevant and inapt, and I adhere to the concept of residence in the sense of physical presence in a place of abode. See Grand Lodge I.O.O.F. of West Virginia v. Board of Education, 90 W.Va. 8, 110 S.E. 440 (1922); State ex rel. Johnson v. Cotton, 67 S.D. 63, 289 N.W. 71 (1939); 47 American Jurisprudence, Schools, Sec. 152.

Of more than passing significance is the fact that the Virgin Islands Board of Education, the agency vested with the rule making authority in the Virgin Islands³ has promulgated no rules establishing residence requirements which must be met as a condition of enrollment in the public schools. It is, therefore, appropriate in the circumstances of this case that we hark back to the generally understood and accepted view, that a child becomes a resident, for the purpose of public school attendance, as soon as he acquires a home in a school district, be that home permanent or temporary in nature. In re Sheard Ohio Juv., 163 N.E.2d 86 (1959); Cline v. Knight, 111 Colo. 8, 137 P.2d 680 (1943); Grand Lodge I.O.O.F. v. Board of Education, supra; State v. Cotton, supra.

We are here dealing with an aspect of twentieth century life so fundamental as to be fittingly considered the corner stone of a vibrant and viable republican form of democracy, such as we so proudly espouse, i. e., free and unrestricted public education. Following in the footsteps of our Federal Government, we too "* * * must consider public education in the light of its full development and its present place in American life. * * *" Brown v. Board of Education, 347 U.S. 483, 492, 74 S.Ct. 686, 98 L.Ed. 873 (1954). With like perception we must recognize that

"Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. * * * Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. * * *" Brown v. Board of Education, supra at p. 493, 74 S.Ct. at p. 691.

The foregoing, it will be remembered, was said by the Supreme Court of the United States with respect to black children, citizens of the United States, in striking down the "separate but equal," so-called, system of public education. Here we address ourselves to the problem of alien children in this territory, worse in plight, for they are offered no free, public education at all. As did the court in Brown v. Board of Education, supra, I hold that public education, "* * * where the state has undertaken to provide it, is a right which must be made available to all on equal terms."

Once we start from the premise posited by the Supreme Court of the United States in Levy v. Louisiana, 391 U.S. 68, 70, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), as it spoke of illegitimate children, and take full cognizance of the fact that aliens, likewise, are not "non persons," but rather are "* * * humans, live, and have their being * * *" the conclusion is inescapable that alien children, lawfully within this territory, in the status of these plaintiffs, are unquestionably "persons" within the Equal Protection Clause of the Fourteenth Amendment.

So long settled as to be beyond the pale of controversy is the proposition that the long reach of the Fourteenth Amendment extends to the alien. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Limited only by a few exceptions, the non-citizen has a right to work at his calling. Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915). But even those once hallowed preserves, historically "off limits" to the non-citizen, may have seen their best days. No longer is the right of an alien to own land open to serious question. Sei Fujii v. State, 38 Cal.2d 718, 242 P.2d 617 (1952). It is now far too late in the day to adopt a policy which acts as a government imposed stumbling block in his path as he reaches for an education, the better to enable him to engage in the productive endeavor by means of which he may become a land owner. Thus in Halaby v. Board of Directors, 162 Ohio St. 290, 123 N.E.2d 3 (1954) an attempt to set up "Municipal citizenship", in turn dependent upon United States Citizenship, as a qualifying condition for admission to a public institution (a university in this case) and in this wise close the doors of the university to alien residents, was struck down.

Deliberate and determined research has not uncovered a single case in point. This paucity may in itself indicate that our territory traipses alone in its march to the rear. Admittedly the opposite inference is a possibility. It is, to me, inconceivable, however, that the alien population in the continental United States could for this long have remained so quiescent, in the face of so grave a problem. I much prefer to think that this silence in the halls of justice is born of a national realization that the special "public welfare" theory, here advanced by defendants, is but a slender reed upon which to rest so great a load.

Defendants contend that the Legislature of the Virgin Islands is authorized to establish categories or classes of persons who may be admitted or excluded from the public schools so long as such classes or categories bear a reasonable relation to the power of the Legislature to enact laws for the protection of the public welfare. With this general principle, so well settled, none can quarrel, and it must be admitted that in this effort, a legislature is to be given great latitude. Levy v. Louisiana, supra; ...