A. Boe, by His Next Friend, B. Boe v. Linus Wright

648 F.2d 432, 1981 U.S. App. LEXIS 12574

Opinions

PER CURIAM:

Plaintiffs-appellees are undocumented alien children who brought this class action against Dallas Independent School District (DISD) seeking to require the school district to admit them into the Dallas public schools and to provide them and all similarly undocumented alien children with a free public education. This is an appeal from an order of the district court granting plaintiffs a preliminary injunction. The court’s order enjoins the school district from refusing to admit illegal alien children into the Dallas public schools pursuant to § 21.031 of the Texas Education Code¹ and the administrative regulations promulgated by DISD pursuant thereto.²

The district court initially denied plaintiffs’ motion for preliminary injunction.³ However, after Justice Powell’s decision as Circuit Justice in Certain Named and Unnamed Non-Citizen Children and Their Parents v. Texas, 448 U.S. 1327, 101 S.Ct. 12, 65 L.Ed.2d 1151 (1980) (Powell, J., in chambers),⁴ the district court reversed its position and granted the preliminary injunction against DISD, finding that such relief would not result in serious or irreparable injury to the school district.⁵

Because the dispositive issue involved in this case has recently been decided by this court, see Doe v. Plyler, 628 F.2d 448 (5th Cir. 1980), probable jurisdiction noted,U.S. -, 101 S.Ct. 2044, 68 L.Ed. 347 (1981), the district court’s order granting a preliminary injunction is affirmed.⁶

AFFIRMED.

1

. Tex.Educ.Code Ann. § 21.031 (Vernon Supp. 1980-81) provides, in pertinent part:

ba) 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.”

2

. Section 5118(a) of the Administrative Regulations of the Dallas Independent School District provides, in pertinent part:.

“B. Illegal Aliens

Aliens residing in the DISD who cannot show proof of legal admittance to this country are not entitled to public school education. (Reference House Bill # 1126, 64th Legislature.)”

3

. The district court concluded that classifications based on alienage are suspect and may require strict judicial scrutiny, but that application of strict scrutiny rests on the assumption that the aliens in question are legally within this country. In addition, the court found that Tex.Educ.Code Ann. § 21.031 and DISD Administrative Regulation § 5118(a) “are rationally related to preserving the limited resources available for public education for citizens and legally admitted aliens.” The district court further determined that the public interest would both be served and disserved by admission of illegal alien children into the Dallas schools at this time.

“After balancing the four relevant factors (probability of success on the merits, irreparable injury to plaintiffs, impact on defendants, and the public interest),” the court concluded “that those factors militating against preliminary injunctive relief outweigh those favoring preliminary relief. ...”

4

. In Certain Named and Unnamed Non-Citizen Children, Justice Powell vacated this court’s stay of an order of the district court for the Southern District of Texas (Seals, J.) that held Tex.Educ.Code Ann. § 21.031 unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment and enjoined the State of Texas from denying free public education to any child on account of his or her immigration status.

5

. Justice Powell indicated that if a school “district can demonstrate that, because of the number of undocumented alien children within its jurisdiction or because of exceptionally limited resources, the operation of the injunction [enjoining all school districts in Texas from refusing to admit illegal alien children] would severely hamper the provision of education to all its students during the coming year, the granting of a stay would be justified.” Certain Named and Unnamed Non-Citizen Children, 448 U.S. at 1334, 101 S.Ct. at 16.

6

. In Doe v. Plyler, a panel of this court held Tex.Educ.Code Ann. § 21.031 to be violative of the equal protection clause of the Fourteenth Amendment. 628 F.2d at 458. Therefore, since this court has already held the exclusion of illegal alien children from free public education in Texas to be unconstitutional, the issue of whether the granting of preliminary injunctive relief was proper in this case vanishes. Because we are controlled by the decision in Doe v. Plyler, we do not review the record herein to determine whether the criteria for preliminary ' injunctive relief (excluding the plaintiffs’ probability of succeeding on the merits) are met. If illegal aliens possess the right to a free public education equally with citizens and aliens lawfully residing within Texas, then the school district cannot deny that right no matter how the interests balance.