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CHIEF JUSTICE BURGER,
with whom JUSTICE WHITE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join,
dissenting.
Were it our business to set the Nation's social policy, I would agree
without hesitation that it is senseless for an enlightened society to
deprive any children - including illegal aliens - of an elementary
education. I fully agree that it would be folly - and wrong - to tolerate
creation of a segment of society made up of illiterate persons, many having
a limited or no command of our language. 1
However, the Constitution does not
constitute us as "Platonic Guardians" nor does it vest in this Court the
authority to strike down laws because they do not meet our standards of
desirable social policy, "wisdom," or "common sense." …
(2)
…The importance of education is beyond dispute. Yet we have held repeatedly
that the importance of a governmental service does not elevate it to the
status of a "fundamental right" for purposes of equal protection analysis.
San Antonio Independent School Dist. v. Rodriguez,
411 U.S. 1, 30
-31 (1973); Lindsey v. Normet, 405 U.S. 56,
73 -74 (1972). In San Antonio Independent
School Dist., supra, JUSTICE POWELL, speaking for the Court, expressly
rejected the proposition that state laws dealing with public education are
subject to special scrutiny under the Equal Protection Clause. Moreover, the
Court points to no meaningful way to distinguish between education and other
governmental benefits [457 U.S. 202, 248]
in this context. Is the Court
suggesting that education is more "fundamental" than food, shelter, or
medical care?
The Equal Protection Clause guarantees similar treatment of similarly
situated persons, but it does not mandate a constitutional hierarchy of
governmental services. JUSTICE POWELL, speaking for the Court in San Antonio
Independent School Dist. supra, at 31, put it well in stating that to the
extent this Court raises or lowers the degree of "judicial scrutiny" in
equal protection cases according to a transient Court majority's view of the
societal importance of the interest affected, we "assum[e] a legislative
role and one for which the Court lacks both authority and competence." Yet
that is precisely what the Court does today. See also Shapiro v. Thompson,
394 U.S. 618, 655
-661 (1969) (Harlan, J., dissenting).
The central question in these cases, as in every equal protection case not
involving truly fundamental rights "explicitly or implicitly guaranteed by
the Constitution," San Antonio Independent School Dist., supra, at 33-34, is
whether there is some legitimate basis for a legislative distinction between
different classes of persons. The fact that the distinction is drawn in
legislation affecting access to public education - as opposed to legislation
allocating other important governmental benefits, such as public assistance,
health care, or housing - cannot make a difference in the level of scrutiny
applied. |