PLYLER v. DOE

U.S. SUPREME COURT

PLYLER v. DOE, 457 U.S. 202 (1982)

457 U.S. 202

PLYLER, SUPERINTENDENT, TYLER INDEPENDENT SCHOOL DISTRICT, ET AL. v. DOE, GUARDIAN, ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 80-1538.

Argued December 1, 1981 Decided June 15, 1982 *

JUSTICE BLACKMUN, concurring.

I join the opinion and judgment of the Court.

Like JUSTICE POWELL, I believe that the children involved in this litigation "should not be left on the streets uneducated." Post, at 238. I write separately, however, because in my view the nature of the interest at stake is crucial to the proper resolution of these cases.

The "fundamental rights" aspect of the Court's equal protection analysis - the now-familiar concept that governmental classifications bearing on certain interests must be closely scrutinized - has been the subject of some controversy. Justice Harlan, for example, warned that "[v]irtually every state statute affects important rights. . . . [T]o extend the `compelling interest' rule to all cases in which such rights are affected would go far toward making this Court a `super-legislature.'" Shapiro v. Thompson, 394 U.S. 618, 661 (1969) (dissenting opinion). Others have noted that strict scrutiny under the Equal Protection Clause is unnecessary when classifications infringing enumerated constitutional rights are involved, for "a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law's purpose or effect is to create any classifications." San Antonio [457 U.S. 202, 232] Independent School Dist. v. Rodriguez, 411 U.S. 1, 61 (1973) (Stewart, J., concurring). See Shapiro v. Thompson, 394 U.S., at 659 (Harlan, J., dissenting). Still others have suggested that fundamental rights are not properly a part of equal protection analysis at all, because they are unrelated to any defined principle of equality. 1

These considerations, combined with doubts about the judiciary's ability to make fine distinctions in assessing the effects of complex social policies, led the Court in Rodriguez to articulate a firm rule: fundamental rights are those that "explicitly or implicitly [are] guaranteed by the Constitution." 411 U.S., at 33 -34. It therefore squarely rejected the notion that "an ad hoc determination as to the social or economic importance" of a given interest is relevant to the level of scrutiny accorded classifications involving that interest, id., at 32, and made clear that "[i]t is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws." Id., at 33.

I joined JUSTICE POWELL'S opinion for the Court in Rodriguez, and I continue to believe that it provides the appropriate model for resolving most equal protection disputes. Classifications infringing substantive constitutional rights necessarily will be invalid, if not by force of the Equal Protection Clause, then through operation of other provisions of the Constitution. Conversely, classifications bearing on nonconstitutional interests - even those involving "the most basic economic needs of impoverished human beings," Dandridge v. Williams, 397 U.S. 471, 485 (1970) - generally are not subject to special treatment under the Equal Protection Clause, because they are not distinguishable in any relevant way from other regulations in "the area of economics and social welfare." Ibid.

With all this said, however, I believe the Court's experience has demonstrated that the Rodriguez formulation does [457 U.S. 202, 233] not settle every issue of "fundamental rights" arising under the Equal Protection Clause. Only a pedant would insist that there are no meaningful distinctions among the multitude of social and political interests regulated by the States, and Rodriguez does not stand for quite so absolute a proposition. To the contrary, Rodriguez implicitly acknowledged that certain interests, though not constitutionally guaranteed, must be accorded a special place in equal protection analysis. Thus, the Court's decisions long have accorded strict scrutiny to classifications bearing on the right to vote in state elections, and Rodriguez confirmed the "constitutional underpinnings of the right to equal treatment in the voting process." 411 U.S., at 34 , n. 74. Yet "the right to vote, per se, is not a constitutionally protected right," id., at 35, n. 78. See Harper v. Virginia Board of Elections, 383 U.S. 663, 665 (1966); Rodriguez, 411 U.S., at 59 , n. 2 (Stewart, J., concurring). Instead, regulation of the electoral process receives unusual scrutiny because "the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights." Reynolds v. Sims, 377 U.S. 533, 562 (1964). See Dunn v. Blumstein, 405 U.S. 330, 336 (1972). In other words, the right to vote is accorded extraordinary treatment because it is, in equal protection terms, an extraordinary right: a citizen 2 cannot hope to achieve any meaningful degree of individual political equality if granted an inferior right of participation in the political process. Those denied the vote are relegated, by state fiat, in a most basic way to second-class status.

It is arguable, of course, that the Court never should have applied fundamental rights doctrine in the fashion outlined above. Justice Harlan, for one, maintained that strict equal protection scrutiny was appropriate only when racial or analogous [457 U.S. 202, 234] classifications were at issue. Shapiro v. Thompson, 394 U.S., at 658 -663 (dissenting opinion). See Reynolds v. Sims, 377 U.S., at 590 -591 (Harlan, J., dissenting). But it is too late to debate that point, and I believe that accepting the principle of the voting cases - the idea that state classifications bearing on certain interests pose the risk of allocating rights in a fashion inherently contrary to any notion of "equality" - dictates the outcome here. As both JUSTICE POWELL and THE CHIEF JUSTICE observe, the Texas scheme inevitably will create "a subclass of illiterate persons," post, at 241 (POWELL, J., concurring); see post, at 242, 254 (BURGER, C. J., dissenting); where I differ with THE CHIEF JUSTICE is in my conclusion that this makes the statutory scheme unconstitutional as well as unwise.

In my view, when the State provides an education to some and denies it to others, it immediately and inevitably creates class distinctions of a type fundamentally inconsistent with those purposes, mentioned above, of the Equal Protection Clause. Children denied an education are placed at a permanent and insurmountable competitive disadvantage, for an uneducated child is denied even the opportunity to achieve. And when those children are members of an identifiable group, that group - through the State's action - will have been converted into a discrete underclass. Other benefits provided by the State, such as housing and public assistance, are of course important; to an individual in immediate need, they may be more desirable than the right to be educated. But classifications involving the complete denial of education are in a sense unique, for they strike at the heart of equal protection values by involving the State in the creation of permanent class distinctions. Cf. Rodriguez, 411 U.S., at 115 , n. 74 (MARSHALL, J., dissenting). In a sense, then, denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage. [457 U.S. 202, 235]

This conclusion is fully consistent with Rodriguez. The Court there reserved judgment on the constitutionality of a state system that "occasioned an absolute denial of educational opportunities to any of its children," noting that "no charge fairly could be made that the system [at issue in Rodriguez] fails to provide each child with an opportunity to acquire . . . basic minimal skills." Id., at 37. And it cautioned that in a case "involv[ing] the most persistent and difficult questions of educational policy, . . . [the] Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels." Id., at 42. Thus Rodriguez held, and the Court now reaffirms, that "a State need not justify by compelling necessity every variation in the manner in which education is provided to its population." Ante, at 223. Similarly, it is undeniable that education is not a "fundamental right" in the sense that it is constitutionally guaranteed. Here, however, the State has undertaken to provide an education to most of the children residing within its borders. And, in contrast to the situation in Rodriguez, it does not take an advanced degree to predict the effects of a complete denial of education upon those children targeted by the State's classification. In such circumstances, the voting decisions suggest that the State must offer something more than a rational basis for its classification. 3

Concededly, it would seem ironic to discuss the social necessity of an education in a case that concerned only undocumented aliens "whose very presence in the state and this country is illegal." Post, at 250 (BURGER, C. J., dissenting). But because of the nature of the federal immigration laws and the pre-eminent role of the Federal Government in [457 U.S. 202, 236] regulating immigration, the class of children here is not a monolithic one. Thus, the District Court in the Alien Children Education case found as a factual matter that a significant number of illegal aliens will remain in this country permanently, 501 F. Supp. 544, 558-559 (SD Tex. 1980); that some of the children involved in this litigation are "documentable," id., at 573; and that "[m]any of the undocumented children are not deportable. None of the named plaintiffs is under an order of deportation." Id., at 583, n. 103. As the Court's alienage cases demonstrate, these children may not be denied rights that are granted to citizens, excepting only those rights bearing on political interests. See Nyquist v. Mauclet, 432 U.S. 1 (1977). And, as JUSTICE POWELL notes, the structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported. Post, at 240-241, n. 6. Indeed, any attempt to do so would involve the State in the administration of the immigration laws. Whatever the State's power to classify deportable aliens, then - and whatever the Federal Government's ability to draw more precise and more acceptable alienage classifications - the statute at issue here sweeps within it a substantial number of children who will in fact, and who may well be entitled to, remain in the United States. Given the extraordinary nature of the interest involved, this makes the classification here fatally imprecise. And, as the Court demonstrates, the Texas legislation is not otherwise supported by any substantial interests.

Because I believe that the Court's carefully worded analysis recognizes the importance of the equal protection and pre-emption interests I consider crucial, I join its opinion as well as its judgment.

[ Footnote 1 ] See, e. g., Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 Colum. L. Rev. 1023, 1075-1083 (1979).

[ Footnote 2 ] I use the term "citizen" advisedly. The right to vote, of course, is a political interest of concern to citizens. The right to an education, in contrast, is a social benefit of relevance to a substantial number of those affected by Texas' statutory scheme, as is discussed below.

[ Footnote 3 ] The Court concludes that the provision at issue must be invalidated "unless it furthers some substantial goal of the State." Ante, at 224. Since the statute fails to survive this level of scrutiny, as the Court demonstrates, there is no need to determine whether a more probing level of review would be appropriate.