 .




                                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
