In re Alien Children Ed. Litigation, MDL No. 398.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: Hurst Hannum, Amy Young-Anawaty, Washington, D. C., for amicus curiae
• Citation: 501 F. Supp. 544
• Parties: In re ALIEN CHILDREN EDUCATION LITIGATION.
• Docket Number: MDL No. 398.
• Decision Date: 21 July 1980

501 F. Supp. 544

In re ALIEN CHILDREN EDUCATION LITIGATION.

MDL No. 398.

United States District Court, S. D. Texas, Houston Division.

July 21, 1980.

501 F. Supp. 545

COPYRIGHT MATERIAL OMITTED

501 F. Supp. 546

COPYRIGHT MATERIAL OMITTED

501 F. Supp. 547

COPYRIGHT MATERIAL OMITTED

501 F. Supp. 548

Peter A. Schey, Los Angeles, Cal., Isaias Torres, Antonio Guajardo, Houston, Tex., Jane Swanson, Beaumont, Tex., Virginia Schramm, Tyler, Tex., Alfredo Campos, Larry Mealer, Dallas, Tex., for plaintiffs

Drew S. Days, III, Asst. Atty. Gen., Robert J. Reinstein, Joseph D. Rich, Linda E.

501 F. Supp. 549

Carter, F. Lamont Liggett, Attys., U. S. Dept. of Justice, Washington, D. C., J. A. "Tony" Canales, U. S. Atty., Houston, Tex., for plaintiff-intervenor

Mark White, Atty. Gen. of Texas, John W. Fainter, Jr., First Asst. Atty. Gen., Ted L. Hartley, Executive Asst. Atty. Gen., Paul R. Gavia, Chief, State and County Affairs, Susan J. Dasher, Gregory Wilson, Asst. Attys. Gen., Austin, Tex., for defendants; Bowen L. Florsheim, Dallas, Tex., of counsel.

Hurst Hannum, Amy Young-Anawaty, Washington, D. C., for amicus curiae.

I. INTRODUCTION

SEALS, District Judge.

This case concerns what has evolved into the most important institution in this country: the public school. Our public schools no longer exist merely to supply the tools which provide access to the economic bounty and participatory process of this nation. With the decline of the influence possessed by other institutions in our society such as the family and church, the schools are being called on to perform additional functions. Public school teachers are being required to perpetuate our culture and to provide a moral compass for our children.

Children are the basic resource of our society. Appropriately enough, these cases were consolidated during the Year of the Child. Children will be the parents of the next generation, and it will be their task to carry on the work of this nation.

In this day we must examine the proper roles of the state and national governments in our federal system. The last three decades have been marked by federal involvement in the affairs of local schools. While all must recognize this as a move toward social justice, many question whether the quality of education has benefited. Many more have questions about the limits of the federal response.

It is the responsibility of the federal government to regulate immigration. As a country without a new frontier, we no longer relish our role as a haven for immigrants. The evidence in this case conclusively disclosed a failure of legislative will. There is little effort to make the hard choices about the contours of our policy on Mexican immigration. A quota is set without much deliberation because all know it will be effectively disregarded. The border is no barrier and employers are hospitable. Those who promote lawlessness by ignoring the laws are held largely blameless. Those who cross the border to find work are scornfully treated as criminals without rights.

These concerns, however, do not control the disposition of the issues before the court. Indeed, to some extent, they must be ignored altogether because the question here is not what should be done about the confluence of these problems. The court must determine whether the State's reaction to them is permissible. The question is not whether the contested state law is wise or short-sighted, but whether it is constitutional.

At issue is a statute which prohibits the use of a state fund to educate persons who are not citizens of the United States or "legally admitted aliens."¹ Tex.Educ.Code Ann. tit. 2, § 21.031 (Vernon 1980). That statute by negative implication also permits local school officials to exclude undocumented children from the public schools. Plaintiffs assert that the statute denies them equal protection of the laws, is preempted by federal legislation, and conflicts with federal treaties and foreign policy.²

501 F. Supp. 550

After describing the procedural posture of this case, resolving the pending motions, and discussing the history and effect of the challenged statute, the court will consider each of these contentions in order

A. Procedural Posture

In September, 1978, four complaints were filed in the Southern District of Texas against the State and three local school districts.³ Subsequently a similar action was filed in the Northern District of Texas in April, 1979,⁴ followed by two suits in the Western District.⁵ The State of Texas and the Texas Education Agency (TEA) were named as defendants or were granted permission to intervene as defendants in these actions. The complaints were later amended to name the Governor of the State of Texas and the Commissioner of Education as defendants. These defendants will be referred to collectively as the State.

In September 1979, the State filed a petition with the Judicial Panel on Multidistrict Litigation. The Panel, on November 16, 1979, issued an Opinion and Order finding that the claims against the State involved common questions of fact and that centralization of these claims in the Southern District of Texas for co-ordinated or consolidated pretrial proceedings would serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The Panel also concluded that the claims against the various school districts and school board members involved few, if any, common questions of fact. Accordingly, these claims were severed from the co-ordinated or consolidated pretrial proceedings and remanded to their respective transferor districts.⁶ These severed claims have been held in abeyance pending resolution of the plaintiffs' claims against the State.

On January 11, 1980, the United States filed a motion to intervene and a complaint-in-intervention asserting that section 21.031 violates the equal protection clause of the fourteenth amendment. By order of February 1, 1980, the court granted the motion to intervene. The State filed a motion to add the United States as a third-party defendant. Pursuant to Rule 14(a), Fed.R.Civ.P., a third-party action is not appropriate against a party to the action. Additionally, in this action for declaratory and injunctive relief, the United States is in no way secondarily liable to the State and any "liability" of the federal government is not dependent on the outcome of the plaintiffs' claim. See 6 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1446 (1971). The State's motion was denied.

After receiving the Opinion and Order transferring these cases for consolidated pretrial proceedings, the court held a conference

501 F. Supp. 551

on December 20, 1979, to discuss the schedule for conducting the consolidated pretrial proceedings. At that hearing the parties agreed to have this court rule on the claim that the State statute is unconstitutional.⁷ Pursuant to that agreement the court scheduled a hearing on the merits which was held from February 19 through March 27, 1980. The parties then filed briefs with the court, the last of which was received on June 5, 1980

The court, once again, wishes to express its appreciation to the lawyers for preparing this case for trial within the time constraints imposed by the court. A great deal of discovery was conducted within a relatively short time in order to facilitate hearing this case at the earliest date. The lawyers for all parties attempted to co-operate with one another to enable the court to hear all the evidence reasonably necessary to frame this important question. Although the period for post-trial briefing extended longer than originally contemplated, this is understandable considering the amount of evidence received and the complexity of the issues.

B. Pending Motions

1. Defendants' Motion to Dismiss.

The state filed a motion to dismiss urging the court to abstain in this action.⁸ The State claims that Burford-type abstention is appropriate because this case involves predominant state interests. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). In BT Investment Managers, Inc. v. Lewis, 559 F.2d 950 (5th Cir. 1977), the court of appeals stated that this type of abstention was appropriate in cases involving matters "such as regulation of natural resources, education, or eminent domain, where a paramount state interest is apparent, where the history of state judicial experience in the area indicates special reliability, or, even absent an established regulatory scheme, where the intrusion of federal adjudication might handicap state government." Id. at 955 (footnotes omitted). See Stainback v. Mo Hock Ke Lock Po, 336 U.S. 368, 383-84, 69 S.Ct. 606, 614-615, 93 L.Ed. 741 (1949). Over thirty years have passed since the Supreme Court decided Stainback. A great deal of litigation has occurred in that time and the need for that litigation attests that "the history of state judicial experience in the area does not indicate special reliability." Lewis, supra. Cf. Griffin v. Prince Edward County School Board, 377 U.S. 218, 229, 84 S.Ct. 1226, 1232, 12 L.Ed.2d 258 (1964). It is no longer persuasive to argue that federal courts should defer to the state courts when discrimination in education is alleged. Burford-type abstention is inappropriate and the State's motion to dismiss is denied.

501 F. Supp. 552

2. Plaintiffs' Motion For Partial Summary Judgment.

On the basis of Doe v. Plyler, 458 F.Supp. 569 (E.D.Tex.1978), the plaintiffs have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P. They argue that the doctrine of collateral estoppel precludes relitigation of the questions actually decided in Plyler: Whether section 21.031 violates the equal protection clause of the Fourteenth Amendment; whether it is preempted by the Immigration and Naturalization Act.

In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), the Supreme Court stated that collateral...