Plyler v. Texas, 102 S.Ct. 2382, 457 U.S. 202, 72 L.Ed.2d 786, 4 Ed. Law Rep. 953 (1982)

 

Supreme Court of the United States

 

James PLYLER, Superintendent of the Tyler Independent School District and Its

Board of Trustees et al., Appellants,

v.

J. and R. DOE et al.

TEXAS, et al., Appellants,

v.

CERTAIN NAMED AND UNNAMED UNDOCUMENTED ALIEN CHILDREN et al.

 

Nos. 80‑1538, 80‑1934.

 

Argued Dec. 1, 1981.

Decided June 15, 1982.

Rehearings Denied Sept. 9, 1982.

See 458 U.S. 1131, 103 S.Ct. 14.

 

Syllabus  [FN*]

 

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.   See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

 

 Held :  A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.   Pp. 2391‑2402.

 

(a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws."   Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term.   This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws.   Nor do the logic and history of the Fourteenth Amendment support such a construction.   Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 2391‑2394.

 

(b) The discrimination contained in the Texas statute cannot be considered rational unless it furthers some substantial goal of the State.   Although undocumented resident aliens cannot be treated as a "suspect class," and although education is not a "fundamental right," so as to require the State to justify the statutory classification by showing that it serves a compelling governmental interest, nevertheless the Texas statute imposes a lifetime hardship on a discrete class of children not accountable for their disabling status.   These children can neither affect their parents' conduct nor their own undocumented status.   The deprivation of public education is not like the deprivation  of some other governmental benefit.   Public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage:  the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological well‑ being of the individual, and poses an obstacle to individual achievement.   In determining the rationality of the Texas statute, its costs to the Nation and to the innocent children may properly be considered.   Pp. 2394‑2398.

 

(c) The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents.   It is true that when faced with an equal protection challenge respecting a State's differential treatment of aliens, the courts must be attentive to congressional policy concerning aliens.   But in the area of special constitutional sensitivity presented by these cases, and in the absence of any contrary indication fairly discernible in the legislative record, no national policy is perceived that might justify the State in denying these children an elementary education.   Pp. 2398‑2400.

 

(d) Texas' statutory classification cannot be sustained as furthering its interest in the "preservation of the state's limited resources for the education of its lawful residents."   While the State might have an interest in mitigating potentially harsh economic effects from an influx of legal immigrants, the Texas statute does not offer an effective method of dealing with the problem.   Even assuming that the net impact of illegal aliens on the economy is negative, charging tuition to undocumented children constitutes an ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens. Nor is there any merit to the suggestion that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State's ability to provide high‑quality public education.   The record does not show that exclusion of undocumented children is likely to improve the overall quality of education in the State.   Neither is there any merit to the claim that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the State's boundaries and to put their education to productive social or political use within the State.   Pp. 2400‑2402.

 

No. 80‑1538, 5th Cir., 628 F.2d 448, and No. 80‑1934, affirmed.

 

Richard L. Arnett, Austin, Tex., for State of Tex. et al.

 

   John C. Hardy, Tyler, Tex., for James L. Plyler et al.

 

Peter A. Schey, Los Angeles, Cal., for appellees in No. 80‑1934.

 

Peter D. Roos, San Francisco, Cal., for appellees in 80‑1538.

 

      Justice BRENNAN delivered the opinion of the Court.

 

The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school‑age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens.

 

I

 

Since the late 19th century, the United States has restricted immigration into this country.   Unsanctioned entry into the United States is a crime, 8 U.S.C. § 1325, and those who have entered unlawfully are subject to deportation, 8 U.S.C. §§ 1251, 1252 (1976 ed. and Supp.IV).   But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States, and now live within various States, including the State of Texas.

 

In May 1975, the Texas Legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not "legally admitted" into the United States.   The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not "legally admitted" to the country.  Tex.Educ.Code Ann. § 21.031 (Vernon Supp.1981). [FN1]  These cases involve constitutional challenges to those provisions.

 

FN1. That section 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."

 

   No. 80‑1538

   Plyler v. Doe

 

This is a class action, filed in the United States District Court for the Eastern District of Texas in September 1977, on behalf of certain school‑age children of Mexican origin residing in Smith County, Tex., who could not establish that they had been legally admitted into the United States.   The action complained of the exclusion of plaintiff children from the public schools of the Tyler Independent School District. [FN2]  The Superintendent and members of the Board of Trustees of the School District were named as defendants;  the State of Texas intervened as a party‑defendant.   After certifying a class consisting of all undocumented school‑age children of Mexican origin residing within the School District, the District Court preliminarily enjoined defendants from denying a free education to members of the plaintiff class.   In December 1977, the court conducted an extensive hearing on plaintiffs' motion for permanent injunctive relief.

 

FN2. Despite the enactment of § 21.031 in 1975, the School District had continued to enroll undocumented children free of charge until the 1977‑1978 school year.   In July 1977, it adopted a policy requiring undocumented children to pay a "full tuition fee" in order to enroll. Section 21.031 had not provided a definition of "a legally admitted alien."   Tyler offered the following clarification:

"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."   App. to Juris. Statement in No. 80‑1538, p. A‑38.

 

         In considering this motion, the District Court made extensive findings of fact.   The court found that neither § 21.031 nor the School District policy implementing it had "either the purpose or effect of keeping illegal aliens out of the State of Texas."  458 F.Supp. 569, 575 (1978). Respecting defendants' further claim that § 21.031 was simply a financial measure designed to avoid a drain on the State's fisc, the court recognized that the increases in population resulting from the immigration of Mexican nationals into the United States had created problems for the public schools of the State, and that these problems were exacerbated by the special educational needs of immigrant Mexican children.   The court noted, however, that the increase in school enrollment was primarily attributable to the admission of children who were legal residents.  Id., at 575‑576.   It also found that while the "exclusion of all undocumented children from the public schools in Texas would eventually result in economies at some level," id., at 576, funding from both the State and Federal Governments was based primarily on the number of children enrolled.   In net effect then, barring undocumented children from the schools would save money, but it would "not necessarily" improve "the quality of education."  Id., at 577.   The court further observed that the impact of § 21.031 was borne primarily by a very small subclass of illegal aliens, "entire families who have migrated illegally and‑‑ for all practical purposes‑‑permanently to the United States."  Id., at 578. [FN3]  Finally, the court noted that under current laws and practices "the illegal alien of today may well be the legal alien of tomorrow,"  [FN4] and that without an education, these undocumented children, "[a]lready disadvantaged as a result of poverty, lack of English‑ speaking ability, and undeniable racial prejudices, ... will become permanently locked into the lowest socio‑economic class."  Id., at 577.

 

FN3. The court contrasted this group with those illegal aliens who entered the country alone in order to earn money to send to their dependents in Mexico, and who in many instances remained in this country for only a short period of time.  458 F.Supp., at 578.

 

FN4. Plaintiffs' expert, Dr. Gilbert Cardenas, testified that "fifty to sixty per cent ... of current legal alien workers were formerly illegal aliens."  Id., at 577.   A defense witness, Rolan Heston, District Director of the Houston District of the Immigration and Naturalization Service, testified that "undocumented children can and do live in the United States for years, and adjust their status through marriage to a citizen or permanent resident."  Ibid.  The court also took notice of congressional proposals to "legalize" the status of many unlawful entrants.  Id., at 577‑578.   See also n. 17, infra.

 

The District Court held that illegal aliens were entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment, and that § 21.031 violated that Clause.   Suggesting that "the state's exclusion of undocumented children from its public schools ... may well be the type of invidiously motivated state action for which the suspect classification doctrine was designed," the court held that it was unnecessary to decide whether the statute would survive a "strict scrutiny" analysis because, in any event, the discrimination embodied in the statute was not supported by a rational basis. Id., at 585.   The District Court also concluded that the Texas statute violated the Supremacy Clause. [FN5]  Id., at 590‑592.

 

FN5. The court found § 21.031 inconsistent with the scheme of national regulation under the Immigration and Nationality Act, and with federal laws pertaining to funding and discrimination in education.   The court distinguished DeCanas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976), by emphasizing that the state bar on employment of illegal aliens involved in that case mirrored precisely the federal policy, of protecting the domestic labor market, underlying the immigration laws. The court discerned no express federal policy to bar illegal immigrants from education.  458 F.Supp., at 590‑592.

 

The Court of Appeals for the Fifth Circuit upheld the District Court's injunction.   628 F.2d 448 (1980).   The Court of Appeals held that the District Court had erred in finding the Texas statute pre‑empted by federal law. [FN6]  With respect to  equal protection, however, the Court of Appeals affirmed in all essential respects the analysis of the District Court, id., at 454‑458, concluding that § 21.031 was "constitutionally infirm regardless of whether it was tested using the mere rational basis standard or some more stringent test," id., at 458.   We noted probable jurisdiction. 451 U.S. 968, 101 S.Ct. 2044, 68 L.Ed.2d 347 (1981).

 

FN6. The Court of Appeals noted that DeCanas v. Bica, supra, had not foreclosed all state regulation with respect to illegal aliens, and found no express or implied congressional policy favoring the education of illegal aliens.   The court therefore concluded that there was no pre‑ emptive conflict between state and federal law.  628 F.2d, at 451‑454.

 

   No. 80‑1934

   In re Alien Children Education Litigation

 

During 1978 and 1979, suits challenging the constitutionality of § 21.031 and various local practices undertaken on the authority of that provision were filed in the United States District Courts for the Southern, Western, and Northern Districts of Texas.   Each suit named the State of Texas and the Texas Education Agency as defendants, along with local officials.   In November 1979, the Judicial Panel on Multidistrict Litigation, on motion of the State, consolidated the claims against the state officials into a single action to be heard in the District Court for the Southern District of Texas.   A hearing was conducted in February and March 1980.   In July 1980, the court entered an opinion and order holding that § 21.031 violated the Equal Protection Clause of the Fourteenth Amendment.  In re Alien Children Education Litigation, 501 F.Supp. 544. [FN7]  The court held that "the absolute deprivation of education should trigger strict judicial scrutiny, particularly when the absolute deprivation is the result of complete inability to pay for the desired benefit."  Id., at 582.   The court determined that the State's concern for fiscal integrity was not a compelling state interest, id., at 582‑583;  that exclusion of these children had not been shown to be necessary to improve education within the State, id., at 583;  and that the educational needs of the children statutorily excluded were not different from the needs of children not excluded, ibid.   The court therefore concluded that  § 21.031 was not carefully tailored to advance the asserted state interest in an acceptable manner.  Id., at 583‑584.   While appeal of the District Court's decision was pending, the Court of Appeals rendered its decision in No. 80‑1538.   Apparently on the strength of that opinion, the Court of Appeals, on February 23, 1981, summarily affirmed the decision of the Southern District.   We noted probable jurisdiction, 452 U.S. 937, 101 S.Ct. 3078, 69 L.Ed.2d 950 (1981), and consolidated this case with No. 80‑1538 for briefing and argument. [FN8]

 

FN7. The court concluded that § 21.031 was not pre‑empted by federal laws or international agreements.  501 F.Supp., at 584‑596.

 

FN8. Appellees in both cases continue to press the argument that § 21.031 is pre‑empted by federal law and policy.   In light of our disposition of the Fourteenth Amendment issue, we have no occasion to reach this claim.

 

   II

 

 The Fourteenth Amendment provides that "[n]o State shall ... 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."  (Emphasis added.)   Appellants argue at the outset that undocumented aliens, because of their immigration status, are not "persons within the jurisdiction" of the State of Texas, and that they therefore have no right to the equal protection of Texas law.   We reject this argument.   Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term.   Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments.  Shaughnessy v. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953);  Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886).   Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government.   Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976). [FN9]

 

FN9. It would be incongruous to hold that the United States, to which the Constitution assigns a broad authority over both naturalization and foreign affairs, is barred from invidious discrimination with respect to unlawful aliens, while exempting the States from a similar limitation. See 426 U.S., at 84‑86, 96 S.Ct., at 1893‑1894.

 

    Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase.   In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws.   Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase "within its jurisdiction."  [FN10]  We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process.   To the contrary, we have recognized   that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.

 

FN10. Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States...."  (Emphasis added.)   Justice Gray, writing for the Court in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used.   He further noted that it was "impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section;  or to hold that persons 'within the jurisdiction' of one of the            States of the Union are not 'subject to the jurisdiction of the United States.' "  Id., at 687, 18 S.Ct., at 471. Justice Gray concluded that "[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States."  Id., at 693, 18 S.Ct., at 473.   As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.   See C. Bouve, Exclusion and Expulsion of Aliens in the United States 425‑427 (1912).

 

"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 protection of the laws is a pledge of the protection of equal laws."  Yick Wo, supra, at 369, 6 S.Ct., at 1070 (emphasis added).

 

In concluding that "all persons within the territory of the United States," including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government, we reasoned from the understanding that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State.  Wong Wing, supra, at 238, 16 S.Ct., at 981. [FN11]  Our cases applying the Equal Protection Clause reflect the same territorial theme:  [FN12]

 

FN11. In his separate opinion, Justice Field addressed the relationship between the Fifth and Fourteenth Amendments:

"The term 'person,' used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic.   A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to.   He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws....  The contention that persons within the territorial jurisdiction of this republic might be beyond the protection of the law was heard with pain on the argument at the bar‑‑in face of the great constitutional amendment which declares that no State shall deny to any person within its jurisdiction the equal protection of the laws."  Wong Wing v. United States, 163 U.S., at 242‑243, 16 S.Ct., at 982‑983 (concurring in part and dissenting in part).

 

FN12. Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958), relied on by appellants, is not to the contrary.   In that case the Court held, as a matter of statutory construction, that an alien paroled into the United States pursuant to § 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(5) (1952 ed.), was not "within the United States" for the purpose of availing herself of § 243(h), which authorized the withholding of deportation in certain circumstances.   The conclusion reflected the longstanding distinction between exclusion proceedings, involving the determination of admissibility, and deportation proceedings.   The undocumented children who are appellees here, unlike the parolee in Leng May Ma, supra, could apparently be removed from the country only pursuant to deportation proceedings.  8 U.S.C. § 1251(a)(2).   See 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 3.16b, p. 3‑161 (1981).

 

"Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction.   It is there that the equality of legal right must be maintained.   That obligation is imposed by the Constitution upon the States severally as governmental entities,‑‑each responsible for its own laws establishing the rights and duties of persons within its borders." Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 350, 59 S.Ct. 232, 236, 83 L.Ed. 208 (1938).

 

 There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection" and therefore available to a larger class of persons.   To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power.   To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment.   The Equal Protection Clause was intended to work nothing less than the abolition of all caste‑based and invidious class‑based legislation.   That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection.

 

    Although the congressional debate concerning § 1 of the Fourteenth Amendment was limited, that debate clearly confirms the understanding that the phrase "within its jurisdiction" was intended in a broad sense to offer the guarantee of equal protection to all within a State's boundaries, and to all upon whom the State would impose the obligations of its laws.   Indeed, it appears from those debates that Congress, by using the phrase "person within its jurisdiction," sought expressly to ensure that the equal protection of the laws was provided to the alien population. Representative Bingham reported to the House the draft resolution of the Joint Committee of Fifteen on Reconstruction (H.R. 63) that was to become the Fourteenth Amendment. [FN13]  Cong. Globe, 39thCong., 1st Sess., 1033 (1866).  Two days later, Bingham posed the following question in support of the resolution:

 

FN13. Representative Bingham's views are also reflected in his comments on the Civil Rights Bill of 1866.   He repeatedly referred to the need to provide protection, not only to the freedmen, but to "the alien and stranger," and to "refugees ... and all men."   Cong. Globe, 39th Cong., 1st Sess., 1292 (1866).

 

"Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States?   Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property?"  Id., at 1090.

 

Senator Howard, also a member of the Joint Committee of Fifteen, and the floor manager of the Amendment in the Senate, was no less explicit about the broad objectives of the Amendment, and the intention to make its provisions applicable to all who "may happen to be" within the jurisdiction of a State:

"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, 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. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another....  It 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."  Id., at 2766 (emphasis added).

 

 Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter.   Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws.   And until he leaves the jurisdiction‑‑either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States‑‑he is entitled to the equal protection of the laws that a State may choose to establish.

 

Our conclusion that the illegal aliens who are plaintiffs in these cases may claim the benefit of the Fourteenth Amendment's guarantee of equal protection only begins the inquiry.   The more difficult question is whether the Equal Protection Clause has been violated by the refusal of the State of Texas to reimburse local school boards for the education of children who cannot demonstrate that their presence within the United States is lawful, or by the imposition by those school boards of the burden of tuition on those children.   It is to this question that we now turn.

 

III

 

 The Equal Protection Clause directs that "all persons similarly circumstanced shall be treated alike."  F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).   But so too, "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same."  Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940).   The initial discretion to determine what is "different" and what is "the same" resides in the legislatures of the States.   A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill.   In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.

 

 But we would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification.   The Equal Protection Clause was intended as a restriction on state legislative action inconsistent with elemental constitutional premises. Thus we have treated as presumptively invidious those classifications that disadvantage a "suspect class,"  [FN14] or that impinge upon   the exercise of a "fundamental right."  [FN15]  With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest.   In addition, we have recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties;  in these limited circumstances we have sought the assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a   substantial interest of the State. [FN16]  We turn to a consideration of the standard appropriate for the evaluation of § 21.031.

 

FN14. Several formulations might explain our treatment of certain classifications as "suspect."   Some classifications are more likely than others to reflect deep‑seated prejudice rather than legislative rationality in pursuit of some legitimate objective.   Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law.   Classifications treated as suspect tend to be irrelevant to any proper legislative goal.   See McLaughlin v. Florida, 379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222 (1964); Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943).   Finally, certain groups, indeed largely the same groups, have historically been "relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process."  San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1293, 36 L.Ed.2d 16 (1973);  Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 538 (1971); see United States v. Carolene Products Co., 304 U.S. 144, 152‑153, n. 4, 58 S.Ct. 778, 783‑784, n. 4, 82 L.Ed. 1234 (1938).   The experience of our Nation has shown that prejudice may manifest itself in the treatment of some groups.   Our response to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment.   Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of "class or caste" treatment that the Fourteenth Amendment was designed to abolish.

 

FN15. In determining whether a class‑based denial of a particular right is deserving of strict scrutiny under the Equal Protection Clause, we look to the Constitution to see if the right infringed has its source, explicitly or implicitly, therein.   But we have also recognized the fundamentality of participation in state "elections on an equal basis with other citizens in the jurisdiction," Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972), even though "the right to vote, per se, is not a constitutionally protected right."  San Antonio Independent School Dist., supra, at 35, n. 78, 93 S.Ct., at 1298, n. 78. With respect to suffrage, we have explained the need for strict scrutiny as arising from the significance of the franchise as the guardian of all other rights.  See Harper v. Virginia Bd. of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966);  Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964);  Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886).

 

FN16. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976);  Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978).   This technique of "intermediate" scrutiny permits us to evaluate the rationality of the legislative judgment with reference to well‑settled constitutional principles.  "In expounding the Constitution, the Court's role is to discern 'principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the level of the pragmatic political judgments of a particular time and place.' "  University of California Regents v. Bakke, 438 U.S. 265, 299, 98 S.Ct. 2733, 2752, 57 L.Ed.2d 750 (1978) (opinion of POWELL, J.), quoting A. Cox, The Role of the Supreme Court in American Government 114 (1976).   Only when concerns sufficiently absolute and enduring can be clearly ascertained from the Constitution and our cases do we employ this standard to aid us in determining the rationality of the legislative choice.

 

   A

 

Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial "shadow population" of illegal migrants‑‑numbering in the millions‑‑within our borders. [FN17]  This situation raises the specter of a permanent  caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. [FN18] The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law. [FN19]

 

FN17. The Attorney General recently estimated the number of illegal aliens within the United States at between 3 and 6 million.   In presenting to both the Senate and House of Representatives several Presidential proposals for reform of the immigration laws‑‑including one to "legalize" many of the illegal entrants currently residing in the United States by creating for them a special status under the immigration laws‑‑the Attorney General noted that this subclass is largely composed of persons with a        permanent attachment to the Nation, and that they are unlikely to be displaced from our territory: "We have neither the resources, the capability, nor the motivation to uproot and deport millions of illegal aliens, many of whom have become, in effect, members of the community.   By granting limited legal status to the productive and law‑abiding members of this shadow population, we will recognize reality and devote our enforcement resources to deterring future illegal arrivals."   Joint Hearing before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary and the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., 9 (1981) (testimony of William French Smith, Attorney General).

 

FN18. As the District Court observed in No. 80‑1538, the confluence of Government policies has resulted in "the existence of a large number of employed illegal aliens, such as the parents of plaintiffs in this case, whose presence is tolerated, whose employment is perhaps even welcomed, but who are virtually defenseless against any abuse, exploitation, or callous neglect to which the state or the state's natural citizens and business organizations may wish to subject them."  458 F.Supp., at 585.

 

FN19. We reject the claim that "illegal aliens" are a "suspect class."   No case in which we have attempted to define a suspect class, see, e.g., n. 14, supra, has addressed the status of persons unlawfully in our country.  Unlike most of the classifications that we have recognized as suspect, entry into this class, by virtue of entry into this country, is the product of voluntary action.   Indeed, entry into the class is itself a crime.   In addition, it could hardly be suggested that undocumented status is a "constitutional irrelevancy."   With respect to the actions of the Federal Government, alienage classifications may be intimately related to the conduct of foreign policy, to the federal prerogative to control access to the United States, and to the plenary federal power to determine who has sufficiently manifested his allegiance to become a citizen of the Nation. No State may independently exercise a like power.   But if the Federal Government has by uniform rule prescribed what it believes to be appropriate standards for the treatment of an alien subclass, the States may, of course, follow the federal direction.   See DeCanas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976).

 

 The children who are plaintiffs in these cases are special members of this underclass.   Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct.   These arguments do not apply  with the same force to classifications imposing disabilities on the minor children of such illegal entrants.   At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation.  But the children of those illegal entrants are not comparably situated.   Their "parents have the ability to conform their conduct to societal norms," and presumably the ability to remove themselves from the State's jurisdiction;  but the children who are plaintiffs in these cases "can affect neither their parents' conduct nor their own status."  Trimble v. Gordon, 430 U.S. 762, 770, 97 S.Ct. 1459, 1465, 52 L.Ed.2d 31 (1977).   Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice.

"[V]isiting ... condemnation on the head of an infant is illogical and unjust.   Moreover, imposing disabilities on the ... child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.   Obviously, no child is responsible for his birth and pen