. 

I’ 

PY MAlTOX 

1 ornry General 

j >rOlW COWI SUlldl~ 

I >. sol 1254 

hmh. TX. 78711.2545 

i”J475-2501 

, .X 91@874-1387 

:. .Dcop*r 512l47m288 

t3 sroadw*y. suite 312 

I bbOCk.TX. 79401-3479 

hat7474232 

00 N. Teal, suulte s 

L.;AIlml. TX. ml-15.5 

512me24547 

~AMelnflua.sulteU)O 

San Antsnlo. lx 782052197 

=‘2/2254101 

The Attorney General of Texas 

December 21, 1984 

Ronorable Uilhelmina Delco 

chairmen 

Higher Education Comittee 

Texas Eousc of Reprerentatives 

P. 0. Sox 2910 

Auatin. Texas 78769 

Opinion No. 34-267 

Re: Whether foreign nationals 

may be constitutionally charged 

a higher rate of tuition at a 

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 

the abstract. 

rhe Education Cide provides different ratea of tuitfon for 

students vho,,are rc!sldents of Texas and for students vho are not 

residents of rexas. Dur discussion IS limited to students who do not 

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 

nonresidents of Texes who are citltens of the United States. See 

Rduc. Code 154.051, subaeci. (b). (c), (h). (I). 

- 

The Fourteenth Amendment to the United States ~Constitutlon 

provides that ‘no shall deny to any person vithln its 

jurisdiction ,tl q~::~:otection h s of the lava. The-~amandmant apeaks 

of ‘$ersona” :rather than “eltizena.” It has long been settled 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 classification 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 Amendment would 

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 26cha~ig v. Mllar. 389 U.S. 429 

(1968). 

m-- 

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 participation 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