Case Information

*1 The Attorney General of Texas I’ December 21, 1984 PY MAlTOX

1 ornry General Ronorable Uilhelmina Delco Opinion No. 34-267

j >rOlW COWI SUlldl~ chairmen I >. sol 1254 Re: Whether foreign nationals Higher Education Comittee hmh. TX. 78711.2545 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 university than ether

nonresidents Dear Representative Iwlco:

You have requested an oplulon from this regarding the of different rates of 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 t3 sroadw*y. suite 312 the abstract. I bbOCk.TX. 79401-3479 hat7474232 rhe Education Cide provides different ratea of students vho,,are rc!sldents of Texas and for students vho are not 00 N. Teal, suulte s Dur discussion residents of rexas. IS limited to students who do not L.;AIlml. TX. ml-15.5 qualify,.for~the Texan reside& Presently, the Education Code 512me24547 of .any country provides .that tuittnr for students .who are citizens

other than the United States la the sama es tuition required of other ~AMelnflua.sulteU)O of Texes who are citltens of United States. See San Antsnlo. lx 782052197 Rduc. Code 154.051, subaeci. (b). (c), (h). (I). =‘2/2254101 Amendment to the United States ~Constitutlon The Fourteenth

jurisdiction ,ths l q~::~:otection shall deny any person vithln provides that ‘no of the lava. The-~amandmant apeaks It has long been settled of ‘$ersona” :rather than “eltizena.” guarsntea of equal protection -oxtede to ell perrone~vithin juriedic:t:ion of a state~lrrespectlre territorial 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 the state ie a person vithln 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 In reviewing l.egislat1on under the equal protection classifications.

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. swtute is subject to strict judicial~ scrutiny which requires the st,ate to estrbliah a compelling interest Its enactment. To do so, the state muet demonstrate that purpose interest boc:h constitutionally permissible and subetantial and that its use DC the classificetion is necessary ro accomplish its purpose. See In ce Griffiths. If a statute does not affecra?irndamental right or create a suspect classification, la accorded a presumption of 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 public purpose, whereas a state must relationship to, a legitimate justify a suspect clasaificrtion by shoving a compelling Interest. See Plyler v. Doe, wp”.

The Uaited States Supreme C:ourt has found classification based on race or alienage inherently to strict Set In re Griffiths, supra: SugarPan v. Dougell. 413 U.S. ecrutlny.

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 It is our opinion that the rates in queetion would not you describe.

pass either test. The constitutionality under the equal protection clause of aach statute judged on its ladividusl provleione and facts, but me are not aware af Taxas interests which ve believe court. would find to be a rational justification for enacting higher retes for foreign nat,Lonals than United States citizens. Cf. Plyler v. neither of which qualify for Texas resident - Doe. LIUPT(L.

It in our jud8ment that, in the absence of e rational basis such a distinction, a court would hold that discri.minat1on against one group solely because It is colaposed of eliens would be arbitrary unreasonable. 1982. the office 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 General of Tenneesec! determined euch aliene would be coneidered by the courts tc be a euspect class under the equal protection clause. See General of Tenn. Opinion No. 82-194 tt.et (1982). The oplnionstatee *3 (Jr4-267)

Honorable Uilhclmina Delco - Page 3 When a suspect class involved, the classi- is ‘inherently fication

clone 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 for ali,en Etudents fee other out-of-state 6tudenl:s. the absence of such 6 compelling purpose, t:he Fourteenth Amendment would be contravened. too, has stated .that

This office, based on alienage rertrictions cannot be upheld unless the s'tst@ csn prove that the restriction to accomplish a coapelling State purpose. Attorney General necessary 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. 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 Issues in addition to the issue of other 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.. ‘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 6tibtly affect relations international national policy. lice 26cha~ig v. Mllar. 389 U.S. 429 m-- (1968). Congress has the exclusive power to control imigration admission of aliens to the Uniied States, and a state msy not irmigration control6 ou 61ims that .the federal government has imp066 In Attoroey General Opinion H-157 (1973). this to admit. chosen said The Dower is vested lminration 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, U.S. 52 (1941).

Honorable Wilhelmln6 Delco - Page 4 (J&267)

A state may. In appropriate circumstances, limit the participa- of noncitizen6 the stat6’s political and governmental tion 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 (It state univer6itie6 nationals charged other foreign nonresident6 of Texas would not be upheld by the courts. SUMMA.RY

A state law which charges a higher rat6 At lnst:ltutian6 of higher education to foreign nationals than the rate charged other 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 and interference with federal gave-nt’s exclusive right

policy and the iPrmlg:,ation and admisiion of aliens to the United States. I

Attorney General of Texas DAVID IL. RICBARDS

EXeCUtiVe AEEiEtErtt &!r;erAl

BICX GILPIN

Chairman. Opinion CoQIttee

Preparad by Nancy Sutton

A66istint Getter61

APPROVED:

OPINION COHMIlTEE

Rick Gilpin, Chairpan

Swan Garrimoo~

Tony Guillory

Jim Moellinger

Jennifer Riggs

Nancy Sutton