.
The Attorney General of Texas
I’
December 21, 1984
PY MAlTOX
1 ornry General
j >rOlWCOWI SUlldl~ Ronorable Uilhelmina Delco Opinion No. 34-267
I >. sol 1254 chairmen
hmh. TX. 78711.2545 Higher Education Comittee Re: Whether foreign nationals
i”J475-2501 Texas Eousc of Reprerentatives may be constitutionally charged
, .X 91@874-1387
P. 0. Sox 2910 a higher rate of tuition at a
:. .Dcop*r 512l47m288
Auatin. Texas 78769 state university than ether
nonresidents
Dear Representative Iwlco:
You have requested an oplulon from this office regarding the
constitutionality of different rates of tuition at Texas public
institutions of higher education based on national origin. Your
concern is whether zbe *state may constitutionally charge a rate of
tuition. at such institutions to one class of students who are not
Texas residentd vh1l.c charging a higher rate of tuition to another
class .of studenta, who also are not Texas residents, simply because
the latter class is composed of foreign nationals and the former class
le composed of United States citizens. You have not submitted a
specific proposal or Idraft, and thus , ve vi11 discuss the question in
t3 sroadw*y. suite 312
the abstract.
I bbOCk.TX. 79401-3479
hat7474232
rhe Education Cide provides different ratea of tuitfon for
students vho,,are rc!sldents of Texas and for students vho are not
00 N. Teal, suultes residents of rexas. Dur discussion IS limited to students who do not
L.;AIlml. TX. ml-15.5
512me24547 qualify,.for~the Texan reside& tuition. Presently, the Education Code
provides .that tuittnr for students .who are citizens of .any country
other than the United States la the sama es tuition required of other
~AMelnflua.sulteU)O nonresidents of Texes who are citltens of the United States.
San Antsnlo. lx 782052197 -See
Rduc. Code 154.051, subaeci. (b). (c), (h). (I).
=‘2/2254101
The Fourteenth Amendment to the United States ~Constitutlon
provides
jurisdiction
of ‘$ersona”
,th
l s
that ‘no
:rather
shall
q~::~:otection
than “eltizena.”
deny to
of the lava.
any person
It has long been settled
vithln
The-~amandmant apeaks
its
that
the guarsntea of equal protection -oxtede to ell perrone~vithin the
territorial juriedic:t:ion of a state~lrrespectlre of citisenshlp. See
Ambach v. ,Norvick.~ 641 U.S. 68 (1979); Yick Uo v. Ropklne, Sherix
llg.U.S. 356 (1886). An alien who ia present within the boundaries of
the state ie a person vithln the l&sdiction ,of the ‘atete. See
;;;;I;, v. Doe, 457 U.S. 202 (19825; reh’g denied. 458 U.S. 1131
n. 1191
Honorable Wilhelnine Delco - 1’al;e 2 (3~467)
The equal protection clause does not prohibit all legislative
classifications. In reviewing l.egislat1on under the equal protection
clause, the Court’s usual approach has been a two-tiered standerd. If
a etetute infringes on e fundamental right or creates an inherently
suspect classification. the swtute is subject to strict judicial~
scrutiny which requires the st,ate to estrbliah a compelling interest
in Its enactment. To do so, the state muet demonstrate that its
purpose or interest is boc:h constitutionally permissible and
subetantial and that its use DC the classificetion is necessary ro
accomplish its purpose. See In ce Griffiths. 413 U.S. 717 (1973). If
a statute does not affecra?irndamental right or create a suspect
classification, the statute la accorded a presumption of
constitutionality that is not clisturbed unless the enactment rests on
grounds wholly irrelevant to the achievement of a legitimate stete
objective. The latter standard frequently is referred to as the
rational basis test. -See --McGowan v. Maryland, 366 U.S. 420 (1961). A
person challenging a classificc~tion judged by the rational basis test
must establish that the classification does not bear a fair
relationship to, a legitimate public purpose, whereas a state must
justify a suspect clasaificrtion by shoving a compelling state
Interest. See Plyler v. Doe, wp”.
The Uaited States Supreme C:ourt has found classification based on
race or alienage inherently suspect and subject to strict judicial
ecrutlny. Set In re Griffiths, supra: SugarPan v. Dougell. 413 U.S.
634 (1973); 403 U.S. 365 (1971): Arredondo v.
Brockette. 648 P.2d 425 (5th Clr. 1981). We do not believe that your
question requires a determlnat:ion of ‘the appropriate standard by which
the courts would test the constitutionality of the tuition rates that
you describe. It is our opinion that the rates in queetion would not
pass either test. The constitutionality under the equal protection
clause of aach statute is judged on its ladividusl provleione and
facts, but me are not aware af Taxas interests which ve believe the
court. would find to be a rational justification for enacting higher
tuition retes for foreign nat,Lonals than for United States citizens.
neither of which qualify for Texas resident tuition. -Cf. Plyler v.
Doe.
- LIUPT(L.
It in our jud8ment that, in the absence of e rational basis for
such a distinction, a court would hold that discri.minat1on against one
group solely because It is colaposed of eliens would be arbitrary and
unreasonable. In 1982. the office of the Attorney General of
Tenneesee was asked whether it is constitutional to eesees different
fees for public colleges basc!d, on a student’e national origin. The
Attorney General of Tenneesec! determined that euch aliene would be
coneidered by the courts tc be a euspect class under the equal
protection clause. See Attorney General of Tenn. Opinion No. 82-194
(1982). The oplnionstatee tt.et
p. 1192
.
.
Honorable Uilhclmina Delco - Page 3 (Jr4-267)
When a suspect class is involved, the classi-
fication is ‘inherently suspect and subject to
clone judicial scrutiny.’ Graham v. Richardson,
suprs. 403 U.S. at 272. As a general proposition.
this office is not aware of any circumstances
which would! compel t,he state to set a different
fee rate for ali,en Etudents than for other
out-of-state 6tudenl:s. In the absence of such 6
compelling purpose, t:he Fourteenth Amendmentwould
be contravened.
This office, too, has stated .that rertrictions based on alienage
cannot be upheld unless the s'tst@ csn prove that the restriction is
necessary to accomplish a coapelling State purpose. Attorney General
Opinion H-1140 (1978) (unconsl::Ltutlonal to xe6trict license a6 Private
Employment Agency operator to citizens of the U.S.).
In addition to the Fourteenth Amendment of the United States
Constitution. the Constitution of Texas guarantees equality of rights
to all persons. See Tex. Const. art. I. 53. Article I. section 38
rpecifically declares that eq&nllty under the law may not be denied or
abridged because of 6ex. race, color , creed, or natioual origin.
Your inquiry.raises other Issues in addition to the issue of
equal protection. For instance, no state may conduct an independent
foreign policy. It haa long be66 settled that the United States is a
6ingle nation for purpose6 of foreign affairs. See Chae Chan Ping v.
p.s.. 130 U.S. 581 (1889). ‘The power to deal with foreign nations
rests In the president, who conducts our foreign relation6 through the
State Department, ambassadc%6 and consuls, and others whom he
appoints. U.S. v. Hooker, 607 F.2d 286, 289 (9th Cir. 1979). cert.
denied, 445 U.S. 905 (1980). We do not believe that the courts vould
allow a 6tate statute to 6tibtly affect international relations or
national foreign policy. lice
m-- 26cha~ig v. Mllar. 389 U.S. 429
(1968). Congress has the exclusive power to control imigration and
the admission of aliens to the Uniied States, and a state msy not
imp066 irmigration control6 ou 61ims that .the federal government has
chosen to admit. In Attoroey General Opinion H-157 (1973). this
office said that
The Dower to control lminration is vested
solely in Congress. Fong Yue kg V. U.S., 149
U.S. 698, 713 (1893). The statutory scheme
enactcd by Congres:s is pervasive. and a state may
not enact statutes or regulations which curtail.
interfere with or conflict with the comorehensive
Congre66ional program. Hines V. Davfdiwits, 312
U.S. 52 (1941).
p. 1193
Honorable Wilhelmln6 Delco - Page 4 (J&267)
A state may. In appropriate circumstances, limit the participa-
tion of noncitizen6 in the stat6’s political and governmental
functions. See Toll v. Morena,. 458 U.S. 1, ,Footnote 17 (1982). and
ca6es cited therein. It i6 ou:: opinion, however, that if challenged,
A state low which charges 6 higher rate of tuitfon (It state
univer6itie6 to foreign nationals than the rate charged other
nonresident6 of Texas would not be upheld by the courts.
SUMMA.RY
--
A state law which charges a higher rat6 of
tuition At state lnst:ltutian6 of higher education
to foreign nationals than the rate charged other
nonresidents of Texas would raise serious
constitutional issue*;, euch ~6 the issue of equal
protection under the Fourteenth Amendmant to the
United State6 Constitution and under the Texas
Constitution and interference with the federal
gave-nt’s exclusive right to control foreign
policy and the iPrmlg:,ation and admisiion of aliens
to the United States.
I
Attorney General of Texas
DAVID IL. RICBARDS
EXeCUtiVe AEEiEtErtt Attorney &!r;erAl
BICX GILPIN
Chairman. Opinion CoQIttee
Preparad by Nancy Sutton
A66istint Attorney Getter61
APPROVED:
OPINION COHMIlTEE
Rick Gilpin, Chairpan
Swan Garrimoo~
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
p. 1194