U.S. Supreme Court Ambach v. Norwick, 441 U.S.
68 (1979) Ambach v. Norwick No. 76-808 Argued January 10,
1979 Decided April 17,
1979 441 U.S.
68 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK Syllabus Held: A New York statute forbidding permanent
certification as a public school teacher of any person who is not a
United States citizen unless that person has manifested an
intention to apply for citizenship does not violate the Equal
Protection Clause of the Fourteenth Amendment. Pp. 441 U. S.
72 -81.

															(a) As a general principle, some state functions are so bound up
with the operation of the State as a governmental entity as to
permit exclusion from those functions of all persons who have not
become part of the process of self-government. Accordingly, a State
is required to justify its exclusion of aliens from such
governmental positions only "by a showing of some rational
relationship between the interest sought to be protected and the
limiting classification." Foley v. Connelie, 435 U.
S. 291 , 435 U. S. 296 .
Pp 441 U. S.
73 -74.

															(b) This rule for governmental functions, which is an exception
to the stricter general standard applicable to classifications
based on alienage, rests on important principles inherent in the
Constitution. The distinction between citizens and aliens, though
ordinarily irrelevant to private activity, is fundamental to the
definition and government of a State, and the references to such
distinction in the Constitution itself indicate that the status of
citizenship was meant to have significance in the structure of our
government. It is because of this special significance of
citizenship that governmental entities, when exercising the
functions of government, have wider latitude in limiting the
participation of noncitizens. P. 441 U. S.
75 .

															(c) Taking into consideration the role of public education and
the degree of responsibility and discretion teachers possess in
fulfilling that role, it is clear that public school teachers come
well within the "governmental function" principle recognized in Sugarman v. Dougall, 413 U. S. 634 , and Foley v. Connelie, supra, and, accordingly, the
Constitution requires only that a citizenship requirement
applicable to teaching in the public school bear a rational
relationship to a legitimate state interest. Pp. 441 U. S.
75 -80. Page 441 U. S. 69 (d) Here, the statute in question does bear a rational
relationship to the State's interest in furthering its educational
goals, especially with respect to regarding all teachers as having
an obligation to promote civic virtues and understanding in their
classes, regardless of the subject taught. Pp. 441 U. S.
80 -81. 417 F.
Supp. 913 , reversed.

															POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, WHITE, and REHNQUIST, JJ., joined. BLACKMUN, J.,
filed a dissenting opinion, in which BRENNAN, MARSHALL, and
STEVENS, JJ., joined, post, p. 441 U. S.
81 .

															MR. JUSTICE POWELL delivered the opinion of the Court.

															This case presents the question whether a State, consistently
with the Equal Protection Clause of the Fourteenth Amendment, may
refuse to employ as elementary and secondary school teachers aliens
who are eligible for United States citizenship but who refuse to
seek naturalization. I New York Education Law § 3001(3) (McKinney 1970) forbids
certification as a public school teacher of any person who is not a
citizen of the United States, unless that person has Page 441 U. S. 70 manifested an intention to apply for citizenship. [ Footnote 1 ] The Commissioner of Education is
authorized to create exemptions from this prohibition, and has done
so with respect to aliens who are not yet eligible for citizenship.
[ Footnote 2 ] Unless a teacher
obtains certification, he may not work in a public elementary or
secondary school in New York. [ Footnote 3 ] Page 441 U. S. 71 Appellee Norwick was born in Scotland, and is a subject of Great
Britain. She has resided in this country since 1965, and is married
to a United States citizen. Appellee Dachinger is a Finnish subject
who came to this country in 1966, and also is married to a United
States citizen. Both Norwick and Dachinger currently meet all of
the educational requirements New York has set for certification as
a public school teacher, but they consistently have refused to seek
citizenship in spite of their eligibility to do so. Norwick applied
in 1973 for a teaching certificate covering nursery school through
sixth grade, and Dachinger sought a certificate covering the same
grades in 1975. [ Footnote 4 ]
Both applications were denied because of appellees' failure to meet
the requirements of § 3001(3). Norwick then filed this suit seeking
to enjoin the enforcement of § 3001(3), and Dachinger obtained
leave to intervene as a plaintiff.

															A three-judge District Court was convened pursuant to 28 U.S.C.
§ 2281 (1970 ed.). Applying the "close judicial scrutiny" standard
of Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 (1971), the court held that § 3001(3) discriminated against aliens
in violation of the Equal Protection Clause. Norwick v.
Nyquist, 417 F.
Supp. 913 (SDNY 1976). The court believed that the statute was
overbroad, because it excluded all resident aliens from all
teaching jobs regardless of the subject sought to be taught, the
alien's nationality, the nature of the Page 441 U. S. 72 alien's relationship to this country, and the alien's
willingness to substitute some other sign of loyalty to this
Nation's political values, such as an oath of allegiance. Id. at 921. We noted probable jurisdiction over the state
school officials' appeal, 436 U.S. 902 (1978), and now reverse. II A The decisions of this Court regarding the permissibility of
statutory classifications involving aliens have not formed an
unwavering line over the years. State regulation of the employment
of aliens long has been subject to constitutional constraints. In Yick Wo v. Hopkins, 118 U. S. 356 (1886), the Court struck down an ordinance which was applied to
prevent aliens from running laundries, and in Truax v.
Raich, 239 U. S. 33 (1915), a law requiring at least 80% of the employees of certain
businesses to be citizens was held to be an unconstitutional
infringement of an alien's "right to work for a living in the
common occupations of the community. . . ." Id. at 239 U. S. 41 . At
the same time, however, the Court also has recognized a greater
degree of latitude for the States when aliens were sought to be
excluded from public employment. At the time Truax was
decided, the governing doctrine permitted States to exclude aliens
from various activities when the restriction pertained to "the
regulation or distribution of the public domain, or of the common
property or resources of the people of the State. . . ." Id. at 239 U. S. 39 .
Hence, as part of a larger authority to forbid aliens from owning
land, Frick v. Webb, 263 U. S. 326 (1923); Webb v. O'Brien, 263 U. S. 313 (1923); Terrace v. Thompson, 263 U.
S. 197 (1923); Blythe v. Hinckley, 180 U.
S. 333 (1901); Hauenstein v. Lynham, 100 U. S. 483 (1880); harvesting wildlife, Patsone v. Pennsylvania, 232 U. S. 138 (1914); McCready v. Virginia, 94 U. S.
391 (1877); Page 441 U. S. 73 or maintaining an inherently dangerous enterprise, Ohio ex
rel. Clarke v. Deckebach, 274 U. S. 392 (1927), States permissibly could exclude aliens from working on
public construction projects, Crane v. New York, 239 U. S. 195 (1915), and, it appears, from engaging in any form of public
employment at all, see Truax, supra at 239 U. S.
40 .

															Over time, the Court's decisions gradually have restricted the
activities from which States are free to exclude aliens. The first
sign that the Court would question the constitutionality of
discrimination against aliens even in areas affected with a "public
interest" appeared in Oyama v. California, 332 U.
S. 633 (1948). The Court there held that statutory
presumptions designed to discourage evasion of California's ban on
alien landholding discriminated against the citizen children of
aliens. The same Term, the Court held that the "ownership" a State
exercises over fish found in its territorial waters

															"is inadequate to justify California in excluding any or all
aliens who are lawful residents of the State from making a living
by fishing in the ocean off its shores while permitting all others
to do so." Takahashi v. Fish & Game Comm'n, 334 U.
S. 410 , 334 U. S. 421 (1948). This process of withdrawal from the former doctrine
culminated in Graham v. Richardson, supra, which, for the
first time, treated classifications based on alienage as
"inherently suspect and subject to close judicial scrutiny." 403
U.S. at 403 U. S. 372 .
Applying Graham, this Court has held invalid statutes that
prevented aliens from entering a State's classified civil service, Sugarman v. Dougall, 413 U. S. 634 (1973), practicing law, In re Griffiths, 413 U.
S. 717 (1973), working as an engineer, Examining
Board v. Flores de Otero, 426 U. S. 572 (1976), and receiving state educational benefits, Nyquist v.
Mauclet, 432 U. S. 1 (1977).

															Although our more recent decisions have departed substantially
from the public interest doctrine of Truax's day, they
have not abandoned the general principle that some state functions
are so bound up with the operation of the State as Page 441 U. S. 74 a governmental entity as to permit the exclusion from those
functions of all persons who have not become part of the process of
self-government. In Sugarman, we recognized that a State
could, "in an appropriately defined class of positions, require
citizenship as a qualification for office." We went on to
observe:

															"Such power inheres in the State by virtue of its obligation,
already noted above, 'to preserve the basic conception of a
political community.' . . . And this power and responsibility of
the State applies not only to the qualifications of voters, but
also to persons holding state elective or important nonelective
executive, legislative, and judicial positions, for officers who
participate directly in the formulation, execution, or review of
broad public policy perform functions that go to the heart of
representative government."

															413 U.S. at 413 U. S. 647 (citation omitted). The exclusion of aliens from such governmental
positions would not invite as demanding scrutiny from this Court. Id. at 413 U. S. 648 . See also Nyquist v. Mauclet, supra at 432 U. S. 11 ; Perkins v. Smith, 370 F.
Supp. 134 (Md.1974), summarily aff'd, 426 U.
S. 913 (1976).

															Applying the rational basis standard, we held last Term that New
York could exclude aliens from the ranks of its police force. Foley v. Connelie, 435 U. S. 291 (1978). Because the police function fulfilled "a most fundamental
obligation of government to its constituency," and, by necessity,
cloaked policemen with substantial discretionary powers, we viewed
the police force as being one of those appropriately defined
classes of positions for which a citizenship requirement could be
imposed. Id. at 435 U. S. 297 .
Accordingly, the State was required to justify its classification
only "by a showing of some rational relationship between the
interest sought to be protected and the limiting classification." Id. at 435 U. S.
296 . Page 441 U. S. 75 The rule for governmental functions, which is an exception to
the general standard applicable to classifications based on
alienage, rests on important principles inherent in the
Constitution. The distinction between citizens and aliens, though
ordinarily irrelevant to private activity, is fundamental to the
definition and government of a State. The Constitution itself
refers to the distinction no less than 11 times, see Sugarman
v. Dougall, supra at 413 U. S.
651 -652 (REHNQUIST, J., dissenting), indicating that the
status of citizenship was meant to have significance in the
structure of our government. The assumption of that status, whether
by birth or naturalization, denotes an association with the polity
which, in a democratic republic, exercises the powers of
governance. See Foley v. Connelie, supra at 435 U. S. 295 .
The form of this association is important: an oath of allegiance or
similar ceremony cannot substitute for the unequivocal legal bond
citizenship represents. It is because of this special significance
of citizenship that governmental entities, when exercising the
functions of government, have wider latitude in limiting the
participation of noncitizens. [ Footnote 5 ] B In determining whether, for purposes of equal protection
analysis, teaching in public schools constitutes a governmental
function, we look to the role of public education and to the degree
of responsibility and discretion teachers possess in fulfilling
that role. See Foley v. Connelie, supra, at 435 U. S. 297 .
Each of these considerations supports the conclusion that public
school teachers may be regarded as performing a task "that Page 441 U. S. 76 go[es] to the heart of representative government." Sugarman
v. Dougall, supra at 413 U. S. 647 .
[ Footnote 6 ]

															Public education, like the police function, "fulfills a most
fundamental obligation of government to its constituency." Foley, supra, at 435 U. S. 297 .
The importance of public schools in the preparation of individuals
for participation as citizens, and in the preservation of the
values on which our society rests, long has been recognized by our
decisions:

															"Today, education is perhaps the most important function of
state and local governments. Compulsory school attendance laws and
the great expenditures for education Page 441 U. S. 77 both demonstrate our recognition of the importance of education
to our democratic society. It is required in the performance of our
most basic public responsibilities, even service in the armed
forces. It is the very foundation of good citizenship. Today it is
a principal instrument in awakening the child to cultural values,
in preparing him for later professional training, and in helping
him to adjust normally to his environment." Brown v. Board of Education, 347 U.
S. 483 , 347 U. S. 493 (1954). See also Keyes v. School Dist. No. 1, Denver,
Colo., 413 U. S. 189 , 413 U. S. 246 (1973) (POWELL, J., concurring in part and dissenting in part); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 29 -30
(1973); Wisconsin v. Yoder, 406 U.
S. 205 , 406 U. S. 213 (1972); id. at 406 U. S.
238 -239 (WHITE, J., concurring); Abington School
Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 230 (1963) (BRENNAN, J., concurring); Adler v. Board of
Education, 342 U. S. 485 , 342 U. S. 493 (1952); McCollum v. Board of Education, 333 U.
S. 203 , 333 U. S. 212 (1948) (opinion of Frankfurter, J.); Pierce v. Society of
Sisters, 268 U. S. 510 (1925); Meyer v. Nebraska, 262 U.
S. 390 (1923); Interstate Consolidated Street R. Co.
v. Massachusetts, 207 U. S. 79 (1907). [ Footnote 7 ] Other
authorities have perceived public schools as an "assimilative
force" by which diverse and conflicting elements in our society are
brought together on a broad but common ground. See, e.g., J. Dewey, Democracy and Education 26 (1929); N. Edwards & H.
Richey, The School in the American Social Order 623-624 (2d
ed.1963). These perceptions of the public schools as inculcating
fundamental values necessary to the maintenance of a democratic
political system have been confirmed by the observations of social
scientists. See R. Dawson Page 441 U. S. 78 & K. Prewitt, Political Socialization 146-167 (1969); R.
Hess & J. Torney, The Development of Political Attitudes in
Children 114, 158-171, 217-220 (1967); V. Key, Public Opinion and
American Democracy 323-343 (1961). [ Footnote 8 ]

															Within the public school system, teachers play a critical part
in developing students' attitude toward government and
understanding of the role of citizens in our society. Alone among
employees of the system, teachers are in direct, day-to-day contact
with students both in the classrooms and in the other varied
activities of a modern school. In shaping the students' experience
to achieve educational goals, teachers, by necessity, have wide
discretion over the way the course material is communicated to
students. They are responsible for presenting and explaining the
subject matter in a way that is both comprehensible and inspiring.
No amount of standardization of teaching materials or lesson plans
can eliminate the personal qualities a teacher brings to bear in
achieving these goals. Further, a teacher serves as a role model
for his students, exerting a subtle but important influence over
their Page 441 U. S. 79 perceptions and values. Thus, through both the presentation of
course materials and the example he sets, a teacher has an
opportunity to influence the attitudes of students toward
government, the political process, and a citizen's social
responsibilities. [ Footnote 9 ]
This influence is crucial to the continued good health of a
democracy. [ Footnote 10 ]

															Furthermore, it is clear that all public school teachers, and
not just those responsible for teaching the courses most directly
related to government, history, and civic duties, should Page 441 U. S. 80 help fulfill the broader function of the public school system.
[ Footnote 11 ] Teachers,
regardless of their specialty, may be called upon to teach other
subjects, including those expressly dedicated to political and
social subjects. [ Footnote
12 ] More importantly, a State properly may regard all teachers
as having an obligation to promote civic virtues and understanding
in their classes, regardless of the subject taught. Certainly a
State also may take account of a teacher's function as an example
for students, which exists independently of particular classroom
subjects. In light of the foregoing considerations, we think it
clear that public school teachers come well within the
"governmental function" principle recognized in Sugarman and Foley. Accordingly, the Constitution requires only
that a citizenship requirement applicable to teaching in the public
schools bear a rational relationship to a legitimate state
interest. See Massachusetts Board of Retirement v. Murgia, 427 U. S. 307 , 427 U. S. 314 (1976). III As the legitimacy of the State's interest in furthering the
educational goals outlined above is undoubted, it remains only to
consider whether § 3001(3) bears a rational relationship to this
interest. The restriction is carefully framed to serve its purpose,
as it bars from teaching only those aliens who have demonstrated
their unwillingness to obtain United States citizenship. [ Footnote 13 ] Appellees, and aliens
similarly situated, in effect have chosen to classify themselves.
They prefer to retain citizenship in a foreign country, with the
obligations it entails Page 441 U. S. 81 of primary duty and loyalty. [ Footnote 14 ] They have rejected the open invitation
extended to qualify for eligibility to teach by applying for
citizenship in this country. The people of New York, acting through
their elected representatives, have made a judgment that
citizenship should be a qualification for teaching the young of the
State in the public schools, and § 3001(3) furthers that judgment.
[ Footnote 15 ] Reversed. [ Footnote 1 ]

															The statute provides:

															"No person shall be employed or authorized to teach in the
public schools of the state who is:"

															" * * * *" "3. Not a citizen. The provisions of this subdivision shall not
apply, however, to an alien teacher now or hereafter employed,
provided such teacher shall make due application to become a
citizen and thereafter within the time prescribed by law shall
become a citizen. The provisions of this subdivision shall not
apply after July first, nineteen hundred sixty-seven, to an alien
teacher employed pursuant to regulations adopted by the
commissioner of education permitting such employment."

															N.Y.Educ.Law § 3001(3) (McKinney 1970).

															The statute contains an exception for persons who are ineligible
for United States citizenship solely because of an oversubscribed
quota. § 3001-a (McKinney 1970). Because this statutory provision
is in all respects narrower than the exception provided by
regulation, see n 2, infra as a practical matter it has no effect.

															The State does not certify the qualifications of teachers in the
private schools, although it does require that such teachers be
"competent." N.Y.Educ.Law § 3204(2) (McKinney Supp. 1978-1979).
Accordingly, we are not presented with the question of, and express
no view as to, the permissibility of a citizenship requirement
pertaining to teachers in private schools.

															[ Footnote 2 ]

															The following regulation governs here:

															" Citizenship. A teacher who is not a citizen of the
United States or who has not declared intention of becoming a
citizen may be issued a provisional certificate providing such
teacher has the appropriate educational qualifications as defined
in the regulations and (1) possesses skills or competencies not
readily available among teachers holding citizenship, or (2) is
unable to declare intention of becoming a citizen for valid
statutory reasons."

															8 N.Y.C.R.R. § 80.2(i) (1978).

															[ Footnote 3 ]

															Certification by the Commissioner of Education is not required
of teachers at state institutions of higher education, and the
citizenship restriction accordingly does not apply to them. Brief
for Appellants 13 n. *.

															[ Footnote 4 ]

															At the time of her application, Norwick had not yet met the
postgraduate educational requirements for a permanent certificate,
and accordingly applied only for a temporary certificate, which
also is governed by § 3001(3). She since has obtained the necessary
graduate degree for full certification. Dachinger previously had
obtained a temporary certificate, which had lapsed at the time of
her 1975 application. The record does not indicate whether
Dachinger previously had declared an intent to obtain citizenship
or had obtained the temporary certificate because of some
applicable exception to the citizenship requirement.

															[ Footnote 5 ]

															That the significance of citizenship has constitutional
dimensions also has been recognized by several of our decisions. In Trop v. Dulles, 356 U. S. 86 (1958), a plurality of the Court held that the expatriation of an
American citizen constituted cruel and unusual punishment for the
crime of desertion in time of war. In Afroyim v. Rusk, 387 U. S. 253 (1967), the Court held that the Constitution forbade Congress from
depriving a person of his citizenship against his will for any
reason.

															[ Footnote 6 ]

															The dissenting opinion of MR. JUSTICE BLACKMUN, in reaching an
opposite conclusion, appears to apply a different analysis from
that employed in our prior decisions. Rather than considering
whether public school teachers perform a significant government
function, the inquiry mandated by Foley v. Connelie, 435 U. S. 291 (1978), and Sugarman v. Dougall, the dissent focuses
instead on the general societal importance of primary and secondary
school teachers, both public and private. Thus, the dissent, on the
one hand, depreciates the importance of New York's citizenship
requirement because it is not applied to private school teachers,
and, on the other hand, argues that the role teachers perform in
our society is no more significant than that filled by attorneys.
This misses the point of Foley and Sugarman. New
York's citizenship requirement is limited to a governmental
function because it applies only to teachers employed by and acting
as agents of the State. The Connecticut statute held
unconstitutional in In re Griffiths, 413 U.
S. 717 (1973), by contrast, applied to all attorneys,
most of whom do not work for the government. The exclusion of
aliens from access to the bar implicated the right to pursue a
chosen occupation, not access to public employment. Cf. Nyquist
v. Mauclet, 432 U. S. 1 , 432 U. S. 116 ,
n. (1977) (POWELL, J., dissenting). The distinction between a
private occupation and a government function was noted expressly in Griffiths: "Lawyers do indeed occupy professional positions of
responsibility and influence that impose on them duties correlative
with their vital right of access to the courts. Moreover, by virtue
of their professional aptitudes and natural interests, lawyers have
been leaders in government throughout the history of our country.
Yet they are not officials of government by virtue of being
lawyers."

															413 U.S. at 413 U. S.
729 .

															[ Footnote 7 ]

															As San Antonio Independent School Dist. v. Rodriguez recognized, there is no inconsistency between our recognition of
the vital significance of public education and our holding that
access to education is not guaranteed by the Constitution. 411 U.S.
at 411 U. S.
335 .

															[ Footnote 8 ]

															The curricular requirements of New York's public school system
reflect some of the ways a public school system promotes the
development of the understanding that is prerequisite to
intelligent participation in the democratic process. The schools
are required to provide instruction

															"to promote a spirit of patriotic and civic service and
obligation and to foster in the children of the state moral and
intellectual qualities which are essential in preparing to meet the
obligations of citizenship in peace or in war. . . ."

															N.Y.Educ.Law § 801(1) (McKinney 1969). Flag and other patriotic
exercises also are prescribed, as loyalty is a characteristic of
citizenship essential to the preservation of a country. § 802
(McKinney 1969 and Supp. 1978-1979). In addition, required courses
include classes in civics, United States and New York history, and
principles of American government. §§ 3204(3)(a)(1), (2) (McKinney
1970).

															Although private schools also are bound by most of these
requirements, the State has a stronger interest in ensuring that
the schools it most directly controls, and for which it bears the
cost, are as effective as possible in teaching these courses.

															[ Footnote 9 ]

															Although the findings of scholars who have written on the
subject are not conclusive, they generally reinforce the common
sense judgment, and the experience of most of us, that a teacher
exerts considerable influence over the development of fundamental
social attitudes in students, including those attitudes which in
the broadest sense of the term may be viewed as political. See,
e.g., R. Dawson & K. Prewitt, Political Socialization
158-167 (1969); R. Hess & J. Torney, The Development of
Political Attitudes in Children 162-163, 217-218 (1967). Cf. Note, Aliens' Right to Teach: Political Socialization
and the Public Schools, 85 Yale L.J. 90, 99-104 (1975).

															[ Footnote 10 ]

															Appellees contend that restriction of an alien's freedom to
teach in public schools is contrary to principles of diversity of
thought and academic freedom embodied in the First Amendment. See also id. at 106-109. We think that the attempt to draw
an analogy between choice of citizenship and political expression
or freedom of association is wide of the mark, as the argument
would bar any effort by the State to promote particular values and
attitudes toward government. Section 3001(3) does not inhibit
appellees from expressing freely their political or social views or
from associating with whomever they please. Cf. Givhan v.
Western Line Consol. School Dist., 439 U.
S. 410 , 439 U. S.
415 -416 (1979); Mt. Healthy City Board of Education
v. Doyle, 429 U. S. 274 (1977); Pickering v. Board of Education, 391 U.
S. 563 (1968). Nor are appellees discouraged from
joining with others to advance particular political ends. Cf.
Shelton v. Tucker, 364 U. S. 479 (1960). The only asserted liberty of appellees withheld by the New
York statute is the opportunity to teach in the State's schools so
long as they elect not to become citizens of this country. This is
not a liberty that is accorded constitutional protection.

															[ Footnote 11 ]

															At the primary school level, for which both appellees sought
certification, teachers are responsible for all of the basic
curriculum.

															[ Footnote 12 ]

															In New York, for example, all certified teachers, including
those in the secondary schools, are required to be available for up
to five hours of teaching a week in subjects outside their
specialty. 8 N.Y.C.R.R. § 80.2(c) (1978) .

															[ Footnote 13 ] See n 2, supra. [ Footnote 14 ]

															As our cases have emphasized, resident aliens pay taxes, serve
in the Armed Forces, and have made significant contributions to our
country in private and public endeavors. See In re
Griffiths, 413 U.S. at 413 U. S. 722 ; Sugarman v. Dougall, 413 U.S. at 413 U. S. 645 ; Graham v. Richardson, 403 U. S. 365 , 403 U. S. 376 (1971). No doubt many of them, and we do not exclude appellees,
would make excellent public school teachers. But the legislature,
having in mind the importance of education to state and local
governments, see Brown v. Board of Education, 347 U.
S. 483 , 347 U. S. 493 (1954), may determine eligibility for the key position in
discharging that function on the assumption that generally persons
who are citizens, or who have not declined the opportunity to seek
United States citizenship, are better qualified than are those who
have elected to remain aliens. We note in this connection that
regulations promulgated pursuant to § 3001(3) do provide for
situations where a particular alien's special qualifications as a
teacher outweigh the policy primarily served by the statute. See 8 N.Y.C.R.R. § 80.2 (i)(1) (1978). The appellants
inform us, however, that the authority conferred by this regulation
has not been exercised. Brief for Appellants 7 n. *.

															[ Footnote 15 ]

															Appellees argue that the State cannot rationally exclude aliens
from teaching positions and yet permit them to vote for and sit on
certain local school boards. We note, first, that the State's
legislature has not expressly endorsed this policy. Rather,
appellants, as an administrative matter, have interpreted the
statute governing New York City's unique community school boards,
N.Y.Educ.Law § 2590-C(4) (McKinney Supp. 1978-1979), to permit
aliens who are the parents of public school students to participate
in these boards. See App. 27, 29. We also may assume,
without having to decide, that there is rational basis for a
distinction between teachers and board members based on their
respective responsibilities. Although possessing substantial
responsibility for the administration of the schools, board members
teach no classes, and rarely, if ever, are known or identified by
the students.

															MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, and MR. JUSTICE STEVENS join, dissenting.

															Once again the Court is asked to rule upon the constitutionality
of one of New York's many statutes that impose a Page 441 U. S. 82 requirement of citizenship upon a person before that person may
earn his living in a specified occupation. [ Footnote 2/1 ] These New York statutes, for the most
part, have their origin in the frantic and over-reactive days of
the First World War when attitudes of parochialism and fear of the
foreigner were the order of the day. This time we are concerned
with the right to teach in the public schools of the State, at the
elementary and secondary levels, and with the citizenship
requirement that N.Y.Educ.Law § 3001(3) (McKinney 1970), quoted by
the Court ante at 441 U. S. 70 n. 1 imposes. [ Footnote 2/2 ]

															As the Court acknowledges, ante at 441 U. S. 72 ,
its decisions regarding the permissibility of statutory
classifications concerning aliens "have not formed an unwavering
line over the years." [ Footnote
2/3 ] Thus, just last Term, in Foley v. Connelie, 435 U. S. 291 (1978), the Court upheld against equal protection challenge the New
York statute limiting appointment of members of the state police
force to citizens of the United States. The touchstone, the Court
indicated, was that citizenship may be Page 441 U. S. 83 a relevant qualification for fulfilling

															"'important nonelective executive, legislative, and judicial
positions' held by 'officers who participate directly in the
formulation, execution, or review of broad public policy.'" Id. at 435 U. S. 296 ,
quoting Sugarman v. Dougall, 413 U.
S. 634 , 413 U. S. 647 (1973). For such positions, a State need show only some rational
relationship between the interest sought to be protected and the
limiting classification. Police, it then was felt, were clothed
with authority to exercise an almost infinite variety of
discretionary powers that could seriously affect members of the
public. 435 U.S. at 435 U. S. 297 .
They thus fell within the category of important officers who
participate directly in the execution of "broad public policy." The
Court was persuaded that citizenship bore a rational relationship
to the special demands of police positions, and that a State
therefore could constitutionally confine that public responsibility
to citizens of the United States. Id. at 435 U. S. 300 .
The propriety of making citizenship a qualification for a narrowly
defined class of positions was also recognized, in passing, in Sugarman v. Dougall, 413 U.S. at 413 U. S. 647 ,
and in Nyquist v. Mauclet, 432 U. S.
1 , 432 U. S. 11 (1977).

															On the other hand, the Court frequently has invalidated a state
provision that denies a resident alien the right to engage in
specified occupational activity: Yick Wo v. Hopkins, 118 U. S. 356 (1886) (ordinance applied so as to prevent Chinese subjects from
engaging in the laundry business); Truax v. Raich, 239 U. S. 33 (1915)
(statute requiring an employer's workforce to be composed of not
less than 80% "qualified electors or native-born citizens"); Takahashi v. Fish & Game Comm'n, 334 U.
S. 410 (1948) (limitation of commercial fishing licenses
to persons not "ineligible to citizenship"); Sugarman v.
Dougall, supra, (New York statute relating to permanent
positions in the "competitive class" of the state civil service); In re Griffiths, 413 U. S. 717 (1973) (the practice of law); Nelson v. Miranda, 413 U.S.
902 (1973), summarily aff'g 351 F.
Supp. 735 (Ariz.1972) (social service worker Page 441 U. S. 84 and teacher); Examining Board v. Flores de Otero, 426 U. S. 572 (1976) (the practice of civil engineering). See also Nyquist v.
Mauclet, supra, (New York statute barring certain resident
aliens from state financial assistance for higher education).

															Indeed, the Court has held more than once that state
classifications based on alienage are "inherently suspect and
subject to close judicial scrutiny." Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 (1971). See Examining Board v. Flores de Otero, 426 U.S.
at 426 U. S.
601 -602; In re Griffiths, 413 U.S. at 413 U. S. 721 ; Sugarman v. Dougall, 413 U.S. at 413 U. S. 642 ; Nyquist v. Mauclet, 432 U.S. at 432 U. S. 7 . And
"[a]lienage classifications by a State that do not withstand this
stringent examination cannot stand." Ibid. There is thus a line, most recently recognized in Foley v.
Connelie, between those employments that a State, in its
wisdom, constitutionally may restrict to United States citizens, on
the one hand, and those employments, on the other, that the State
may not deny to resident aliens. For me, the present case falls on
the Sugarman-Griffiths-Flores de Otero-Mauclet side of
that line, rather than on the narrowly isolated Foley side.

															We are concerned here with elementary and secondary education in
the public schools of New York State. We are not concerned with
teaching at the college or graduate levels. It seems
constitutionally absurd, to say the least, that, in these lower
levels of public education, a Frenchman may not teach French or,
indeed, an Englishwoman may not teach the grammar of the English
language. The appellees, to be sure, are resident "aliens" in the
technical sense, but there is not a word in the record that either
appellee does not have roots in this country or is unqualified in
any way, other than the imposed requirement of citizenship, to
teach. Both appellee Norwick and appellee Dachinger have been in
this country for Page 441 U. S. 85 over 12 years. Each is married to a United States citizen. Each
currently meets all the requirements, other than citizenship, that
New York has specified for certification as a public school
teacher. Tr. of Oral Arg. 4. [ Footnote
2/4 ] Each is willing, if required, to subscribe to an oath to
support the Constitutions of the United States and of New York.
[ Footnote 2/5 ] Each lives in an
American community, must obey its laws, and must pay all of the
taxes citizens are obligated to pay. Appellees, however, have
hesitated to give up their respective British and Finnish
citizenships, just as lawyer Fre Le Poole Griffiths, the subject of In re Griffiths, supra, hesitated to renounce her
Netherlands citizenship, although married to a citizen of the
United States and a resident of Connecticut.

															But the Court, to the disadvantage of appellees, crosses the
line from Griffiths to Foley by saying, ante at 441 U. S. 75 ,
that the

															"distinction between citizens and aliens, though ordinarily
irrelevant to private activity, is fundamental to the definition
and government of a State."

															It then concludes that public school teaching "constitutes a
governmental function," ibid., and that public school
teachers may be regarded as performing a task that goes "to the
heart of representative government." Ante at 441 U. S. 76 .
The Court speaks of the importance of public schools in the
preparation of individuals for participation as citizens, and in
the preservation of the values on which Page 441 U. S. 86 our society rests. [ Footnote
2/6 ] After then observing that teachers play a critical part in
all this, the Court holds that New York's citizenship requirement
is constitutional because it bears a rational relationship to the
State's interest in furthering these educational goals.

															I perceive a number of difficulties along the easy road the
Court takes to this conclusion:

															First, the New York statutory structure itself refutes the
argument. Section 3001(3), the very statute at issue here, provides
for exceptions with respect to alien teachers "employed pursuant to
regulations adopted by the commissioner of education permitting
such employment." Section 3001-a (McKinney 1970) provides another
exception for persons ineligible for United States citizenship
because of oversubscribed quotas. Also, New York is unconcerned
with any citizenship qualification for teachers in the private
schools of the State, even though the record indicates that about
18% of the pupils at the elementary and secondary levels attend
private schools. The education of those pupils seems not to be
inculcated with something less than what is desirable for
citizenship and what the Court calls an influence "crucial to the
continued good health of a democracy." Ante at 441 U. S. 73 .
The State, apparently under § 3001(3), would not hesitate to employ
an alien teacher while he waits to attain citizenship, even though
he may fail ever to attain it. And the stark fact that the State
permits some aliens to sit on certain local school boards,
N.Y.Educ.Law 2590-c(4) (McKinney Supp. 1978-1979), reveals how
shallow and indistinct is New York's line of demarcation between
citizenship and noncitizenship. The Court's attempted Page 441 U. S. 87 rationalization of this fact, ante at 441 U. S. 81 -82,
n. 15, hardly extinguishes the influence school board members,
including these otherwise "disqualified" resident aliens, possess
in school administration, in the selection of faculty, and in the
approval of textbooks and instructional materials.

															Second, the New York statute is all-inclusive in its
disqualifying provisions: "No person shall be employed or
authorized to teach in the public schools of the state who is . . .
[n]ot a citizen." It sweeps indiscriminately. It is "neither
narrowly confined nor precise in its application," nor limited to
the accomplishment of substantial state interests. Sugarman v.
Dougall, 413 U.S. at 413 U. S. 643 . See Note, Aliens' Right to Teach: Political Socialization
and the Public Schools, 85 Yale L.J. 90, 109-111 (1975).

															Third, the New York classification is irrational. Is it better
to employ a poor citizen teacher than an excellent resident alien
teacher? Is it preferable to have a citizen who has never seen
Spain or a Latin American country teach Spanish to eighth graders
and to deny that opportunity to a resident alien who may have lived
for 20 years in the culture of Spain or Latin America? The State
will know how to select its teachers responsibly, wholly apart from
citizenship, and can do so selectively and intelligently. [ Footnote 2/7 ] That is the way to Page 441 U. S. 88 accomplish the desired result. An artificial citizenship bar is
not a rational way. It is, instead, a stultifying provision. The
route to "diverse and conflicting elements" and their being
"brought together on a broad but common ground," which the Court so
emphasizes, ante at 441 U. S. 77 , is
hardly to be achieved by disregarding some of the diverse elements
that are available, competent, and contributory to the richness of
our society and of the education it could provide.

															Fourth, it is logically impossible to differentiate between this
case, concerning teachers, and In re Griffiths, concerning
attorneys. If a resident alien may not constitutionally be barred
from taking a state bar examination, and thereby becoming qualified
to practice law in the courts of a State, how is one to comprehend
why a resident alien may constitutionally be barred from teaching
in the elementary and secondary levels of a State's public schools?
One may speak proudly of the role model of the teacher, of his
ability to mold young minds, of his inculcating force as to
national ideals, and of his profound influence in the impartation
of our society's values. Are the attributes of an attorney.any the
less? He represents us in our critical courtroom controversies even
when citizenship and loyalty may be questioned. He stands as an
officer of every court in which he practices. He is responsible for
strict adherence to the announced and implied standards of
professional conduct, and to the requirements of evolving ethical
codes, and for honesty and integrity in his professional Page 441 U. S. 89 and personal life. Despite the almost continuous criticism
leveled at the legal profession, he, too, is an influence in
legislation, in the community, and in the role-model figure that
the professional person enjoys. [ Footnote 2/8 ] The Court specifically recognized this in In re Griffiths: "Lawyers do indeed occupy professional positions of
responsibility and influence that impose on them duties correlative
with their vital right of access to the courts. Moreover, by virtue
of their professional aptitudes and natural interests, lawyers have
been leaders in government throughout the history of our
country."

															413 U.S. at 413 U. S. 729 .
[ Footnote 2/9 ]

															If an attorney has a constitutional right to take a bar
examination and practice law, despite his being a resident alien,
it is impossible for me to see why a resident alien otherwise
completely competent and qualified, as these appellees concededly
are, is constitutionally disqualified from teaching in the public
schools of the great State of New York. The Page 441 U. S. 90 District Court expressed it well and forcefully when it observed
that New York's exclusion "seems repugnant to the very heritage the
State is seeking to inculcate." Norwick v.
Nyquist, 417 F.
Supp. 913 , 922 (SDNY 1976). I respectfully dissent.

															[ Footnote 2/1 ]

															One of the appellees in Nyquist v. Mauclet, 432 U. S. 1 (1977),
submitted a list of the New York statutes that required
citizenship, or a declaration of intent to become a citizen, for no
fewer than 37 occupations. Brief for Appellee Mauclet, O.T. 1976,
No. 76-208, pp. 19-22, nn. 8-44, inclusive. Some of those statutes
have been legislatively repealed or modified, or judicially
invalidated. Others are still in effect. Among the latter are those
relating to the occupations of inspector, certified shorthand
reporter, funeral director, masseur, physical therapist, and animal
technician.

															[ Footnote 2/2 ]

															This particular citizenship requirement had its origin in 1918
N.Y.Laws, ch. 158, effective Apr. 4, 1918.

															[ Footnote 2/3 ]

															"To be sure, the course of decisions protecting the employment
rights of resident aliens has not been an unswerving one." In
re Griffiths, 413 U. S. 717 , 413 U. S. 720 (1973).

															[ Footnote 2/4 ]

															Appellee Norwick is a summa cum laude graduate of a
Massachusetts college, and received an A average in full-time
graduate work in the State University of New York at Albany. She
has taught both in this country and in Great Britain.

															Appellee Dachinger is a cum laude graduate, with a
major in German, of Lehman College, a unit of the City University
of New York, and possesses a master's degree in Early Childhood
Education from that institution. She has taught at a day-care
center in the Bronx.

															Each appellee, thus, has received and excelled in educational
training the State of New York itself offers.

															[ Footnote 2/5 ] See In re Griffiths, 413 U.S. at 413 U. S. 726 n. 18.

															[ Footnote 2/6 ]

															One, of course, can agree with this observation. One may
concede, also, that public schools are an " assimilative force'
by which diverse and conflicting elements in our society are
brought together on a broad but common ground," ante at 441 U. S. 77 ,
and that the inculcation of fundamental values by our public
schools is necessary to the maintenance of a democratic political
system. [ Footnote 2/7 ]

															In In re Griffiths, the Court significantly has
observed:

															"Connecticut has wide freedom to gauge on a case-by-case basis
the fitness of an applicant to practice law. Connecticut can, and
does, require appropriate training and familiarity with Connecticut
law. Apart from such tests of competence, it requires a new lawyer
to take both an 'attorney's oath' to perform his functions
faithfully and honestly and a 'commissioner's oath' to 'support the
constitution of the United States, and the constitution of the
state of Connecticut.' Appellant has indicated her willingness and
ability to subscribe to the substance of both oaths, and
Connecticut may quite properly conduct a character investigation to
insure, in any given case,"

															"that an applicant is not one who 'swears to an oath pro
forma while declaring or manifesting his disagreement with or
indifference to the oath.' Bond v. Floyd, 385 U. S.
116 , 385 U. S. 132 ."

															" Law Students Research Council v. Wadmond, 401 U.S. at 401 U. S. 164 . Moreover,
once admitted to the bar, lawyers are subject to continuing
scrutiny by the organized bar and the courts. In addition to
discipline for unprofessional conduct, the range of post-admission
sanctions extends from judgments for contempt to criminal
prosecutions and disbarment. In sum, the Committee simply has not
established that it must exclude all aliens from the practice of
law in order to vindicate its undoubted interest in high
professional standards."

															413 U.S. at 413 U. S.
725 -727 (footnotes omitted).

															[ Footnote 2/8 ] See also Stockton v.
Ford , 11 How. 232, 52 U. S. 247 (1851); Hickman v. Taylor, 329 U.
S. 495 , 329 U. S.
514 -515 (1947) (concurring opinion); Schware v.
Board of Bar Examiners, 353 U. S. 232 , 353 U. S. 247 (1957) (concurring opinion); In re Sawyer, 360 U.
S. 622 , 360 U. S. 668 (1959) (dissenting opinion); J. Story, Miscellaneous Writings,
Value and Importance of Legal Studies 503-549 (W. Story ed.1972);
Stone, The Public Influence of the Bar, 48 Harv.L.Rev. 1 (1934); W.
Brennan, The Responsibilities of the Legal Profession, Address
before the Law School of Harvard University (1967); A. de
Tocqueville, Democracy in America 321-331 (Schocken ed.1961); J.
Rogers, The Lawyer in American Public Life, in Morrison Foundation
Lectures 41, 61 (1940).

															[ Footnote 2/9 ]

															In order to keep attorneys on the nongovernmental side of the
classification line, the Court continued:

															"Yet they are not officials of government by virtue of being
lawyers. Nor does the status of holding a license to practice law
place one so close to the core of the political process as to make
him a formulator of govern ment policy."

															413 U.S. at 413 U. S.
729 .