Full opinion text
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.” 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. 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. Subsequently a similar action was filed in the Northern District of Texas in April, 1979, followed by two suits in the Western District. 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. 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 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. 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. 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. 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 re-litigation 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 estoppel “has the dual purpose of protecting litigants from the burden of re-litigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-329 [91 S.Ct. 1434, 1442-1443, 28 L.Ed.2d 788] (1971).” The doctrine of collateral estoppel should be applied when three requirements are satisfied: (1) The issue to be concluded must be identical to that involved in the prior action; (2) In the prior action the issue must have been actually litigated; and (3) The determination of the issue in the prior action must have been necessary and essential to the resulting judgment. International Ass’n of Mach. & Aero Workers v. Nix, 512 F.2d 125, 132 (5th Cir. 1975). See Port Arthur Towing Co. v. Owens-Illinois, Inc., 492 F.2d 688, 692 n.6 (5th Cir. 1974); James Talcott, Inc. v. Allahbad Bank, Ltd., 444 F.2d 451, 458-59 (5th Cir. 1971). It is readily apparent that the issue in Plyler was not identical to that in this case. Both the pleadings and the order in Plyler demonstrate that the Plyler case involved only the constitutionality of section 21.031 as applied by the Tyler Independent School District. After the court entered its judgment in Plyler, the State moved to reopen the case to present additional evidence. Judge Justice, in denying the State’s motion, stated that there was no need to re-open the case since “the amended complaint does not state a cause of action against any school district other than the Tyler Independent School District and since this court intends to order relief only against the Tyler Independent School District. . . . ” Doe v. Plyler, 458 F.Supp. 569 (E.D.Tex.1978). While it is true that the State offered some evidence in Plyler that related to the state-wide impact of the statute, the court’s order in Plyler did not decide that issue. Much emphasis was placed on the small number of undocumented children in the Tyler Independent School District. Plyler, supra, at 573, 577 & 590. The issue in this multidistrict litigation is much broader. Although the two cases share a common inquiry, the issue considered in Plyler is not identical to that considered in this case. In addition, even if the issue of the statewide constitutionality of the statute was decided in Plyler, it was neither necessary nor essential to the resulting judgment. The Plyler court was not asked to hold the statute unconstitutional throughout the state. It could have granted all of the relief sought without even considering the issue of the facial constitutionality of the statute. Finally, application of offensive collateral estoppel would be unfair to the State. In Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330 n.14, 99 S.Ct. 645, 651 n.14, 58 L.Ed.2d 552 (1979), the Supreme Court noted that “[allowing offensive collateral estoppel . may be unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant.” The State previously had defended successfully the constitutionality of the statute in the state courts. Hernandez v. Houston Independent School District, 558 S.W.2d 121 (Tex.Civ.App.-Austin 1977, writ ref’d n. r. e.). That judgment is not binding on the plaintiffs here; they are not the privies of the state court plaintiffs. It would be unfair to allow the plaintiffs, but not the State, to use offensive collateral estoppel in reliance on the one previous judgment in their favor. Accordingly, the plaintiffs’ motion for partial summary judgment must be denied. 3. Motion to Proceed as a Class Action. The plaintiffs seek to maintain this suit as a class action. Initially, the court was reluctant to grant the plaintiffs’ motion. These consolidated actions were filed in several districts and they challenged the policies of different school districts. Questions about the effect of a particular school district’s policy may not be typical of those questions pertaining to the other school districts. Further, the court did not want to postpone the hearing on the merits to take up the class question. Having heard the evidence, the court concludes that this action should proceed as a class action with respect to the issue litigated in this consolidated proceeding. The transferor courts should consider separately whether the plaintiffs’ claims against the various school districts for damages should be maintained as class claims. It is clear that the class proposed is so numerous that joinder is impractical. Both the sheer numbers and the difficulty of locating class members prevent joinder. Whether section 21.031 is constitutional is a question of law which is common to the class and the claims of the representative parties are typical of the claims of the class. The representative parties, Elvia Mendoza, Miguel Mendoza, Javier Mendoza, and Jorge Mendoza, and their counsel, have represented the class adequately and fairly and the court believes they will continue to do so. Accordingly, the class representatives satisfy the requirements of Rule 23(a). In addition, the court finds that the State has acted on grounds generally applicable to the class and concludes that final injunctive relief is appropriate with respect to the class as a whole. Rule 23(b)(2). The class is defined as all children who are over five and not over twenty-one years of age at the beginning of the scholastic year and have been or will be denied admission to the public schools in the State of Texas on a tuition-free basis because of the alienage provisions of section 21.031 of the Texas Education Code. C. The Challenged Statute Prior to September 1, 1975, the Texas Education Code provided that all children between six and twenty-one years of age were entitled to attend the public schools of the district where they resided. Funds were provided to the school districts by the State in proportion to the school district’s average daily attendance. All children were counted in the calculation of average daily attendance provided they satisfied the age and residency requirements. In April, 1975, the Attorney General of Texas, upon a request made by the Commissioner of Education, issued an opinion holding that all children within the State were entitled to attend public schools in the district of their residence regardless of whether they were legally or illegally within the United States. Prior to the Attorney General’s Opinion there had been no established policy regarding the admission of undocumented children to the public schools. A small number of school districts excluded undocumented children at that time. In May, 1975, the Texas Legislature amended the Texas Education Code. The amended statute, Tex.Educ.Code Ann. tit. 2, § 21.031, 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 person or his parent, guardian or person having lawful control resides within the school district. Accordingly, undocumented children are not entitled to attend public school and they may not be counted when calculating the average daily attendance which determines the school district’s share of the Available School Fund. Local school districts are given the discretion to deny admission or to permit attendance upon payment of tuition. Needless to say, the effect of the new statute is to exclude undocumented children from the Texas public schools. Although some school districts continue to educate all children, the majority exclude them or require tuition. There was no evidence that any undocumented children are presently attending school upon payment of tuition. An evaluation of the statute properly may not proceed on the assumption that the statute operates only to prohibit the use of state funds to educate undocumented children. The statute makes a distinction which treats undocumented children differently from all other children with respect to admission to the public schools. Section 21.031(b) & (c). As the court has noted above, the effect of the amendment is to exclude undocumented children from school. Even though some school districts have opted to admit undocumented children, the State’s financing scheme penalizes them for that decision; they receive less money per pupil from the State than school districts which exclude undocumented children. Further, the statute was amended by the Legislature immediately after the Attorney General informed the Commissioner of Education that undocumented children were entitled to attend public schools. It is reasonable to conclude that the amendment was a response to the Attorney General’s Opinion. Several school districts which previously admitted all children now use the amendment as authorization to exclude undocumented children. Accordingly, it would be sophistry to view this case as one involving only state fiscal policies or the method of financing the schools in Texas. II. THE EQUAL PROTECTION CLAUSE Section one of the fourteenth amendment of the United States Constitution states in pertinent part: “No state shall . deny to any person within its jurisdiction the equal protection of the laws.” This provision, “unlike other provisions of the Constitution, confers no substantive rights and creates no substantive liberties. The function of the equal protection clause, rather, is simply to measure the validity of classifications created by state laws.” San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 59, 93 S.Ct. 1278, 1310, 36 L.Ed.2d 16 (1973) (Stewart, J., concurring) (footnote omitted). The equal protection clause insures that legislative classifications are fair and that similarly circumstanced persons are treated alike. States have wide discretion in making classifications unless the classification is based on a suspect criterion or unless the classification affects a fundamental right or interest. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Chatham v. Jackson, 613 F.2d 73 (5th Cir. 1980). See generally Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972). When no suspect criterion or fundamental interest or right is involved, the classification must nonetheless be reasonable, not arbitrary, and rationally and fairly related to a valid governmental objective. McLaughlin v. Florida, 379 U.S. 184, 191, 85 S.Ct. 283, 287, 13 L.Ed.2d 222 (1964); McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1104-1105, 6 L.Ed.2d 393 (1961). If the classification is based on suspect criteria or a fundamental right or interest is affected, the statute can be upheld only if it is precisely tailored to further a compelling governmental interest. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). This rigid, now traditional, two-tier approach requires the court to examine the right and interest implicated and the nature of the classification created in order to determine the appropriate level of judicial scrutiny. A. The Interest Directly Affected: Education In 1954 Chief Justice Warren stated: 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 a recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a 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. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954). In other opinions the Supreme Court has re-emphasized the importance of education to members of modern society and has endeavored to insure equal access to educational opportunities. See, e. g., Ambach v. Norwick, 441 U.S. 68, 75-78, 99 S.Ct. 1589, 1594-95, 60 L.Ed.2d 49 (1979) (citing cases). Nonetheless, the Supreme Court has stated that “[ejducation, of course, is not among the rights afforded explicit protection under our Federal Constitution.” San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16 (1973). The equal protection clause, however, does not serve only to protect those rights explicitly recognized in the body of our Constitution. “It is of course true that a law that impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional. See Shapiro v. Thompson, 394 U.S. 618, 634, 638 [89 S.Ct. 1322, 1331, 1337, 22 L.Ed.2d 600]; id., at 642-644 [89 S.Ct. at 1335-1337] (concurring opinion).” Mobile v. Bolden, 446 U.S. 55, 76, 100 S.Ct. 1490, 1504, 64 L.Ed.2d 47 (1980). In Rodriguez the Supreme Court considered a challenge to the method of financing public schools in Texas. That method relied heavily on local property taxes. Because of differences in taxable property values among the various school districts, substantial interdistrict disparities in per pupil expenditures resulted. The plaintiffs in Rodriguez claimed that the Texas system of financing public education operated to disadvantage children in poor school districts. Because only relative differences in spending .levels were involved, the court stated that “no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Id., 411 U.S. at 37,93 S.Ct. at 1299. The challenged financing provisions excluded no one from the public schools. In Rodriguez no children were denied admission because their parents were unable to pay tuition. The statute challenged in this action is very different. Many children received no education at all, either because the school districts in which they live have decided to deny them admission, or because they cannot afford the tuition required. Those school districts which opt to admit children receive proportionately less state support than those which exercise their prerogative to exclude undocumented children. Under section 21.031, Texas has decided to educate some children within its jurisdiction while absolutely depriving others of the benefit of education. While holding that a system which contributes more funds for the education of some children than others does not infringe upon a fundamental interest, Justice Powell reserved the question whether absolute deprivation of educational opportunity might require strict judicial scrutiny. This case squarely presents the issue reserved by the Supreme Court in Rodriguez: what level of scrutiny should be applied when a statute absolutely deprives educational opportunities to some children within the state’s jurisdiction? The Supreme Court noted in Rodriguez that no federal court has the authority to sit as a “super-legislature” and to create substantive constitutional rights. Id., at 33, 93 S.Ct. at 1296. See Mobile v. Bolden, 446 U.S. 55, 76, 100 S.Ct. 1490, 1505, 64 L.Ed.2d 47 (1980); Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). Nonetheless, when litigants present constitutional claims, the courts must endeavor to determine whether their arguments are supported by the Constitution. The presumptive validity which normally attaches to the actions of state legislatures is no cause to shirk that responsibility. Our system of adjudication requires courts to give their full attention to the parties’ assertions, regardless of their novelty. With that said, the court turns to the question whether persons have a fundamental interest in access to education when the state has undertaken to provide it to others. Education is not among the rights afforded explicit protection by the Constitution. The factors which control the determination of what rights and interests are implicitly guaranteed have not been identified clearly. In Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), the Court stated: Long ago in Yick Wo v. Hopkins, 118 U.S. 356, 370 [6 S.Ct. 1064, 1071, 30 L.Ed. 220] [1866], the Court referred to “the political franchise of voting” as a “fundamental political right, because preservative of all rights.” Recently in Reynolds v. Sims, 377 U.S. 533, 561-562 [84 S.Ct. 1362, 1381-1382, 12 L.Ed.2d 506] [1964], we said, “Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Id. at 667, 86 S.Ct. at 1081-82. According to this formulation, a right is fundamental when it is preservative of or substantially related to other basic civil and political rights which are guaranteed by the Constitution. San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), considered whether there was a sufficient connection between education and the freedom of speech or the right to vote. Although the district court found that education was a fundamental right or liberty, the Supreme Court held that it was not. Id. at 37, 93 S.Ct. at 1299. The Supreme Court reasoned that courts could not presume “to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice.” Id. at 36,93 S.Ct. at 1298. Initially, the issue in this case is not whether a state must act affirmatively to maximize the ability of persons within its jurisdiction to exercise rights, but rather whether a state may choose to deny access to education to a discrete group of persons within its jurisdiction. The court has not been asked to insure that the education provided is commensurate for all, or to require the state to maintain an educational system. The plaintiffs seek only to participate in the educational system which has been established and made available to others. This claim does not require a measurement of the quantum of education that is constitutionally protected and it does not imply that any resource which might aid in the exercise of a guaranteed right must be provided. All that is at issue is whether education is so closely connected with guaranteed rights that a total deprivation of education should be closely scrutinized. Before discussing the relationship between education and freedom of speech, it is necessary to inquire whether the legal status of the plaintiffs makes consideration of the right to speak and to vote irrelevant. The court concludes that it does not. First, there is little doubt that many of the plaintiffs, for good or for ill, are here to stay. The evidence demonstrates that approximately ten percent of the undocumented persons in this country will remain here as permanent settlers. Many of the permanent settlers have relatives living in the United States and have come across the border while they await processing of their immigration documents. Additionally, the current proposals on amnesty could provide citizenship to many undocumented persons who are of school age. See H.R. 9531, § 2a, 95th Cong. 1st Sess. 1977; A. Bevilacqua, Legal Critique of President Carter’s Proposals on Undocumented Aliens, 23 Catholic Lawyer 286 (1978). Future proposals may increase the number of persons benefiting from amnesty. Presently, many of the undocumented persons in this country enjoy a form of de facto amnesty. Federal harboring legislation, in large part as a result of pressure from Texan lobbyists, does its part to insure that employment opportunities continue to attract persons to cross the border. 8 U.S.C. § 1324(a). The State of Texas, unlike other states, has rejected efforts to discourage the employment of undocumented workers. In 1979 and 1977, ■ legislation was introduced which would authorize sanctions against employers who knowingly hired undocumented persons. Neither bill was reported out of the applicable committee. The evidence received indicates that the Congress has not allocated sufficient funds to stem the tide of immigration from Mexico. This nation has set immigration quotas which are simply disregarded. It thus is likely that many of the undocumented persons in this country will remain here for years as a result of government inaction. While they remain in the country they should not be denied the right to speak or to listen. Cf. 1 C. Antieau, Modern Constitutional Law § 9.26 (1969). The rights of man are not a function of immigration status. Nonetheless, it has been suggested that a person is not endowed with civil and political rights unless his “entry” into the United States was lawful. The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed to all people within our borders. Such rights include those protected by the First and Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of the provisions acknowledges any distinction between citizen and resident aliens. They extend their inalienable privileges to all “persons” and guard against any encroachment on those rights by federal or state authority. Bridges v. Wixon, 326 U.S. 135, 161, 65 S.Ct. 1443, 1455, 89 L.Ed. 2103 (1945) (Murphy, J., concurring). This “entry” doctrine, properly understood, acknowledges the congressional authority to regulate immigration and the territorial limitation of governmental power to guarantee the enjoyment of rights. The authority to admit or to exclude aliens is vested by the Constitution in the Congress. Questions relating to the admission of aliens often are politically based, Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n. 21, 96 S.Ct. 1895, 1904 n. 21, 48 L.Ed.2d 495 (1976), and thus inappropriate for. judicial resolution. The “entry” doctrine is tailored to defer to congressional procedures and decisions regarding admission and related conditions on immigration status. Thus a person who has been “paroled” into the United States pursuant to 8 U.S.C. § 1253(h) has not “entered” the country for purposes of immigration laws; they still may be excluded without the protections incident to expulsion. Further, Congress has the power to exclude persons from this jurisdiction for reasons “which would be impermissible in the context of domestic policy.” Pierre v. United States, 547 F.2d 1281, 1290 (5th Cir.), vacated and remanded, 434 U.S. 962, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977), quoting, Fiallo v. Levi, 406 F.Supp. 162, 165 (E.D.N.Y.1975). This useful doctrine protects congressional power to perform a congressional function. It has little use, however, when judicial functions are at issue. Accordingly, a determination of whether a person paroled in the United States may be deprived of free speech or equal protection of the laws should not revolve around whether he is subject to expulsion or exclusion. Whether a person physically within this country may exchange ideas should not depend on the nature of the proceedings used to challenge his continued presence here. Essentially, regarding questions not intrinsic to immigration status, the court should not utilize immigration doctrines. Courts may decide the extent of the liberties and freedoms enjoyed by undocumented persons without treading on congressional control over immigration. This conclusion is bolstered by the nature of deportation proceedings against undocumented persons. Undocumented persons are entitled to due process before they may be expelled. Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S.Ct. 1072, 1073, 2 L.Ed.2d 1246 (1958); Shaughnessy v. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953); United States v. Murff, 260 F.2d 610, 614 (2nd Cir. 1958). This is inconsistent with an approach which treats persons who have entered unlawfully like those who have not physically entered or those who have been paroled into the United States. Thus the court considers it incongruous to apply the “entry” doctrine in a manner which justifies denying first amendment rights to persons present in this country. Congressional power to exclude aliens does not imply state power to infringe the rights of undocumented persons within this jurisdiction to receive and to exchange ideas. If a substantial connection exists between first amendment rights and the absolute deprivation of education, the infringement of first amendment rights is not rendered inconsequential by the immigration status of the persons affected. Before considering the connection between education and first amendment freedoms, it must be recognized that the evidence demonstrates that the deprivation of education is absolute. As previously noted, many children are excluded from school and others have no ability to pay the tuition required by some school districts. Some make efforts to attend private schools, yet the evidence demonstrates that, even if the plaintiffs could afford tuition, the private schools could not absorb their numbers. The private schools in Texas are unable to accommodate all of the children who seek admission. Other members of the plaintiff class attend alternative schools which have been established to care for some.undocumented school age children. The court finds these alternative schools do not provide a substitute for public education, even for those children who are fortunate enough to attend them. The alternative schools lack books, equipment, and adequate facilities. In one alternative school in Houston, only one of the four teachers is certified to teach; two of the four have high school educations. In the other school about which evidence was presented, only one of the two teachers has any formal training as an educator. Even if the schools were adequate at the present, there is no assurance that they will exist in' the future. Their funding is insufficient and its continuity is uncertain. Finally, the alternative schools are too few in number and too small in size to serve all of the undocumented children. Many children are just left at home or in the streets. Second, the evidence demonstrates what common sense suggests: children who are excluded from school suffer great harm. The court finds that the absolute deprivation of education prevents children from assimilating into society and from effectively exchanging information and ideas. Necessarily, this disability is magnified because of the initial language barrier which is left unbreached. The experts who testified on the effect of the exclusion on children unanimously agreed that the damage caused was severe. Dr. Kenneth Matthews, a specialist in child psychiatry and a consultant to three school districts, testified that he has observed severe behavioral and emotional problems which result from exclusion from the school system and which could plague children all through their lives. He stated: Children who are deprived of an education frequently suffer behavioral difficulties which can vary in extent from mild adjustment difficulties, through serious behavior difficulties, like hyperactivity, withdrawing behavior into fairly severe types of difficulties such as depression and breaks with reality. [Wjhen a child is not allowed to be educated, . . there is a decrease in the cognitive function of the child and in the ultimate ability of that child to develop adult type thinking patterns. The longer the exclusion goes, the more severe the effect would be. Dr. Matthews identified formal education as one of three important variables in a child’s development and it is the only one directly affected by government. He testified that the family affords no substitute for formal education. As a whole, Dr. Matthews’s testimony indicated that the excluded undocumented children he had examined will have severe difficulty adjusting in a society requiring reading and mathematical skills and that these children are also likely to become permanently dependent on governmental services. Dr. Lucien Jones, a clinical psychologist, examined one of the named plaintiffs presently excluded from school. He found that she is behind her grade level by one to two years, and behind in general academic knowledge by three and one-half years. Moreover, he found the child withdrawn and indicated that if she continues to be excluded from school her isolation and alienation will only worsen. Other testimony by educational experts corroborated the conclusions reached by Dr. Matthews and Dr. Jones. Dr. Thomas Carter stated that children excluded from school would be unable to acquire the formal literacy skills which permit progress within a society. He emphasized the permanent nature of this disability; adults rarely learn to read or to write. Dr. Brams, a sociologist specializing in the sociological, historical, and psychological foundations of education, testified about the connection between illiteracy and participation in the nation’s political processes. She explained that, because undocumented children come from families with low socioeconomic status, their need for education is greater. Without education, persons are unable to participate or even understand our form of government. Uneducated persons will be unaware of the opportunities and protections afforded by our society. The court, having reviewed Dr. Brams’s qualifications as an expert witness, concludes that her opinion testimony should be given great weight. The court also heard testimony from two young girls who had been denied admission to the public schools. Their description of the way they spent their days and of their efforts to educate themselves reinforces the expert testimony. The consequences of excluding only two children are dramatic. As this effect is magnified many times, it is possible to perceive the impact of the creation of a permanent underclass of persons who will live their lives in. this country without being able to participate in our society. Additionally, the expert testimony focused primarily on the impact of exclusion from school in the abstract. When this impact is combined with the language barrier which exists, the extent of the problem becomes apparent. The public school has been a mechanism to assimilate immigrants into our society. Uneducated children who eventually will be admitted into this country, will never be admitted into the society. In Texas the provision of education is a state function and that a person may look to private schools instead does not alter this fact. Section 1 of Article VII of the Texas Constitution states: “A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” References to public education were contained in the Constitution of the Republic of Texas enacted in 1836. The first State Constitution adopted in 1845 represented the diversity of opinion then prevailing regarding the state’s duty to provide free public education to all children seeking it. The Constitution of 1869, however, settled the question and “required for the first time a uniform system of public free schools for the gratuitous instruction of all inhabitants between the ages of six and eighteen (art. IX, sec. 1) with compulsory attendance (art. IX, sec. 5) and a highly centralized system of school administration (art. IX, sec. 3).” Vernon’s Ann.Tex.Const, art. VII, sec. 1 (1876) (interpretative commentary). In 1884, with the enactment of the school law, the idea of universal public education became completely accepted in Texas. Current statutory provisions reflect the State’s control of education. One need only cite the compulsory attendance law, Tex. Educ.Code Ann. title 2, Sec. 21.032 (Vernon’s 1972), to illustrate the State’s involvement in education. The State’s ability to compel attendance reflects the social recognition of the governmental interest in educating all persons within the jurisdiction. Other areas which may be occupied by state activity do not share with education the connection to the essence of government. If the state operates a utility or public transportation in the locale, those activities constitute a government invasion of or supplement to the private sector, not essential state functions. The provision of education also is quite dissimilar from “the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.” Mathews v. Diaz, 426 U.S. 67, 80, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976). Additionally, the State’s educational system cannot properly be classified within “the area of economics and social welfare. . Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). When a state enters an area occupied by the private sector and endeavors to assist persons to obtain food, shelter, or medicine, there is no requirement that the state create classifications which are perfect. A state may undertake charitable functions without undue concern about making distinctions which are too fine or too imprecise. Such determinations are replete with “conflicting claims of morality and intelligence . raised by opponents and proponents of almost every measure. . . .” Dandridge v. Williams, supra, at 487, 90 S.Ct. at 1162. The legislatures are entrusted to resolve conflicts concerning the boundaries of state involvement in these areas. Judicial deference, however, should be limited in areas which are occupied by state functions. Where the state traditionally has been the provider, discrimination wifh respect to access to a service should be disfavored when there is a close connection between the particular service and the implicitly or explicitly protected constitutional right. In effect, this is another way of saying that with respect to a service which is provided as an essential function of government and not by the private sector, exclusion from access to that service will result in absolute deprivation. This should be scrutinized carefully. One reason supporting the Supreme Court’s decision in Rodriguez not to classify education as a fundamental interest was that “the logical limitations” of the plaintiffs’ theory were “difficult to perceive.” Rodriguez, supra, 411 U.S. at 37, 93 S.Ct. at 1299. No such open ended theory is involved in this case. When only access to education is deprived, holding that a fundamental interest is involved does not occasion an unprecedented upheaval which would terminate state control over education. An interest in a governmental process or program may be deemed fundamental even though the government cannot be required to assure or even to determine what constitutes enjoyment of that process or program. An analysis of the extent of the right to vote is instructive. The right to vote requires quantitative and not qualitative protection. Thus, while “a citizen has a constitutionally protected right, to participate in elections on an equal basis with other citizens in the jurisdiction,” Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274 (1972) in states that have adopted the electoral process, the courts do not sit to insure “the most informed electoral choice.” San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 36, 93 S.Ct. 1278, 1298, 36 L.Ed.2d 16 (1973) . The plurality opinion in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), illustrates the principle that the recognition of access to the ballot as a fundamental right does not imply a right of equality of result. The only occasion that makes the equality of result actionable is when such inequality constitutes invidious discrimination because of the nature of the classification used or the group affected. The “right to participate in elections on an equal basis with other qualified voters” does not herald a revamping of the political system. The “right to have an equally effective voice” in the election of representatives is impaired where representation is not apportioned substantially on the basis of population. Such an inquiry is objective and quantitative. It provides no license for the court to embark on subjective, qualitative analyses of the effect of elections on distinctive groups or to guarantee the right to representation. The mere presence of a voting rights issue does not compel strict scrutiny. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978); Town of Lockport v. Citizens for Community Action at the Local Level, Inc., 430 U.S. 259, 97 S.Ct. 1047, 51 L.Ed.2d 313 (1977); Sayler Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S.Ct. 1224, 35 L.Ed.2d 659 (1973); Creel v. Freeman, 531 F.2d 286 (5th Cir. 1976), cert. denied, 429 U.S. 1066, 97 S.Ct. 797, 50 L.Ed.2d 784 (1977); Note, 93 Harv.L.Rev. 1491 (1980). See also Clark v. Town of Greenburgh, 436 F.2d 770 (2nd Cir. 1971). Finally, classifying access to the ballot as a fundamental right does not require the states to make all government offices elected ones. Once the state has granted the franchise, however, restrictions on the right to vote elicit strict scrutiny. Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). Similarly, recognition of a right to access to education need not imply a right to equality of result, thus undercutting the holding in Rodriguez. Where inequality of educational opportunities results from racial animus, such discrimination will be struck down upon proof of racially discriminatory intent or purpose. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The right to attend school on an equal basis with other children living in the locale does not require revamping the educational system. Any inquiry into the exclusion of children from public education can be objective and quantitative. Recognition of education as a fundamental right does not mean that the presence of educational issues in a lawsuit will require subjective, qualitative analysis concerning the effect of education on all discrete groups. In summation, the court concludes that strict judicial scrutiny should be applied to determine whether the statute violates the equal protection clause. The bases for this conclusion are the following: the statute absolutely deprives undocumented children of access to education thereby causing them great harm; there is a direct and substantial relationship between education and the explicitly guaranteed right to exchange ideas and information; and, the provision of education is not a social or economic policy but a state function. Additionally, recognizing the right to access to education when it is being provided to others does not imply a right to equal enjoyment of education. B. The Classifications Created by Section 21.031 1. Undocumented Aliens Section 21.031 on its face creates a classification of undocumented children who are treated differently than all other children within the jurisdiction. The court must determine not only what level of scrutiny should be applied to the use of such a classification, but also whether any scrutiny is due. While the plaintiffs claim that discrimination against undocumented aliens is inherently suspect, the State claims that it is permissible per se. With respect to the plaintiffs’ argument, the court concludes that states may treat citizens and resident aliens differently than undocumented aliens, provided that such differences are reasonably related to a valid governmental objective and do not affect fundamental rights. If fundamental rights are affected, state treatment of undocumented aliens, like state treatment of other persons within its jurisdiction, is justified only if it furthers a compelling governmental interest. In Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971), the Supreme Court stated that “classifications based on alienage . . . are inherently suspect and subject to close judicial scrutiny.” The equal treatment of resident aliens is based on two premises. First, the federal decision to admit resident aliens to permanent residence required “a general policy that all persons in this country shall abide in any state ‘on an equality’ of legal privileges with all citizens under non-discriminatory laws.” Takahashi v. Fish & Game Comm’n., 334 U.S. 410, 420, 68 S.Ct. 1138, 1143, 92 L.Ed. 1478 (1948). Second, in Graham v. Richardson, supra, the court stated that “[ajliens as a class are a prime example of a discrete and insular minority . for whom . . heightened judicial solicitude is appropriate.” Id., 403 U.S. at 372, 91 S.Ct. at 1852, citing United States v. Carolene Products Co., 304 U.S. 144, 152-53 n.4, 58 S.Ct. 778, 783-784 n.4, 82 L.Ed. 1234 (1938). Undocumented aliens are “saddled with such disabilities, ... subjected to such a history of purposeful unequal treatment [and] relegated to such a position of political powerlessness ...” that treating them as more discrete and insular than resident aliens may be justified. Nonetheless, undocumented aliens are not entitled to the privileges conferred by admission to the country. The federal decision to admit resident aliens would be frustrated by state restrictions on their activity. Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915). The federal government has made no such decision concerning undocumented aliens. Focus on the Carolene Products rationale, suggests that undocumented aliens are a class needing protection from the majority and the political process. The political process has made insufficient efforts to exclude undocumented persons from the country and while they are here the majority is quite willing to exploit them for their cheap labor. Additionally, the concerns of state governments normally are not related to the alienage or legal status of residents. See, e. g., Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). State authority to classify based on a person’s status as a citizen is confined within “narrow limits.” Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973). Accordingly, the normal deference given state legislation over matters which are the usual subjects of state legislation is not justified when state classifications are based on citizenship, or when no special attribute of citizenship is relevant. Nonetheless, the court concludes that undocumented aliens are not a suspect class. The guarantee of equal protection is a restraint on the federal government as well as state governmental power. There is little question that the federal government can treat undocumented aliens differently from citizens or resident aliens. The Supreme Court explained in Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), that the federal government could make legitimate distinctions between citizens and resident aliens because of the governmental interest in regulating immigration. The courts have not required the federal government to show that the distinctions they make are precisely tailored to the exercise of the power to regulate immigration and naturalization. Rather, federally drawn distinctions between aliens and citizens are upheld where there is a legitimate basis for presuming that the distinction was actually intended to serve an overriding national interest. Hampton v. Mow Sun Wong, 426 U.S. 88, 103, 96 S.Ct. 1895, 1905, 48 L.Ed.2d 495 (1976). Accordingly, as a matter of equal protection analysis, the federal power to regulate immigration is sufficient to justify federal discrimination against aliens. Further, the states’ ability to make such distinctions where their interests are apparent suggests that the Truax-Takahashi rationale should control over the Graham Court’s reliance on Garolene Products, at least when considering whether strict judicial solicitude should be extended to undocumented aliens. This does not imply that classifications involving undocumented aliens are permissible by their very nature or that the equal protection clause is inapplicable to a class of undocumented persons. Analogous decisions by the Supreme Court, the language of the fourteenth amendment, and holdings of other federal courts require that state classifications based on immigration status be subjected to judicial scrutiny. Although the Supreme Court has never addressed squarely the applicability of the equal protection clause to undocumented aliens, decisions construing the fourteenth amendment do not suggest that the guarantee of equal protection is reserved to citizens or resident aliens. It is established that both the due process and equal protection clauses apply to resident documented aliens. In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Takahashi v. Fish & Game Comm’n., 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1891); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). The Supreme Court stated in Wong Wing that the equal protection clause applied “to all persons within the territorial jurisdiction” of the United States, 163 U.S. at 238, 16 S.Ct.' at 981. In Yick Wo v. Hopkins, supra, the Supreme Court stated that The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: “Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. 118 U.S. at 369, 6 S.Ct. at 1070. Inasmuch as undocumented aliens are protected by the due process clause, Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976), the court can conceive of no reason to conclude that they are unprotected by the equal protection clause The language of the amendment itself affords no basis for the proposition that undocumented aliens physically present within the state may not invoke the equal protection clause. Undocumented aliens, like other human beings, are “persons.” The question, then, is whether an undocumented alien is a “person within the jurisdiction” of the state. The court concludes that the qualification “within the jurisdiction” of the state should be given its common, everyday meaning. Accordingly, undocumented children who reside in Texas and are subject to its laws are “within the jurisdiction” of Texas. Both the legislative history and the cases construing the qualification confirm this conclusion. There is no indication that the framers of the fourteenth amendment intended to limit which individuals located within the United States were “persons” for either due process or equal protection purposes. In fact, one of the sponsors of the amendment said: The last two clauses of the first section of the amendment disables a State from depriving not merely a citizen but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the state. . [I]t will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. 71 Cong.Globe 2766 (May 23,1866). In view of this legislative history which groups the two clauses, there is no reason to interpret “any person” under the due process clause different from “any person within its jurisdiction” under the equal protection clause. This does not mean that the language is meaningless. It represents an inherent limitation on governmental power. In Blake v. McClung, 172 U.S. 239, 19 S.Ct. 165, 43 L.Ed. 432 (1899), the Supreme Court held that a Virginia corporation was not a person within the jurisdiction of Tennessee. The Court noted that the equal protection clause manifestly relates only to denial by the state of equal protection to persons “within its jurisdiction.” Observe that the prohibition against the deprivation of property without due process of law is not qualified by the words “within its jurisdiction,” while those words are found in the succeeding clause relating to the equal protection of the laws. The Court cannot assume that those words were inserted without any object, nor is it at liberty to eliminate them from the Constitution and to interpret the clause in question as if they were not to be found in th