OFFICIAL OPINION No. 9

OFFICIAL OPINION No. 9 Public School teachers-Citizenship-Right of qualified aliens to teach in the public schools. 1. The restrictions on the access of aliens to the teaching profession contain· ed in S.ections 1109 and 1202 of the Public School Code are to be consid- ered unconstitutional and unenforceable as a violation of the Equal Pro- tection Clause of the Fourteenth Amendment. 2. Eligibility to teach in the public schools of Pennsylvania should be deter- mined without regard to the applicant's citizenship or his intention to obtain United States citizenship. Honorable John C. Pittenger Secretary Department of Education Harrisburg, Pennsylvania Dear Mr. Pittenger: Harrisburg, Pa. January 16, 1973 You have requested advice as to how Sections 1109 an 1202 of the Public School Code can be reconciled. Section 1109 states: "Every teacher employed in the public schools of this Commonwealth must be . .. a citizen of the United States: Provided, that citizenship may be waived in the case of exchange teachers not permanently employed, and teachers employed for the purpose of teaching for- eign languages." 24 P.S. §11-1109. Section 1202 as amended December 21, 1967, states: "In the case of a resident foreign national holding an immigrant visa who has declared, in writing, to the De- partment of Public Instruction the intention of becom- ing a citizen of the United States, such person shall be eligible for a provisional college certificate." 24 P.S. §12-1202. Section 1202 appears on its face to authorize the granting of provisional college certificates to certain aliens who are forbid- den to teach in Pennsylvania public schools by Section 1109. Nevertheless, even Section 1202 limits the access of aliens to the teaching profession and conditions this limited access on a dec- laration of intention to become a citizen. It is our opinion, and you are so advised, that insofar as these provisions prohibit otherwise qualified resident aliens from teaching in the public schools on the same terms as qualified citizens, both provisions should be treated administratively as violative of the Equal Protection Clause of the Fourteenth Amendment and are unenforceable. Accordingly, you are in- structed to certify teachers without regard to applicants' cit- izenship and without regard to intention to obtain United States citizenship. Previous opinions have held unconstitutional citizenship re- quirements that restrict access to the practice of veterinary medi- 20 OPINIONS OF THE ATTORNEY GENERAL cine (Opinion No. 92), to the practice of medicine (Opinion No. 113), to the practice of pharmacy (Opinion No. 114), and to the practice of nursing (Opinion No. 116). These opinions .were pre- mised on the Supreme Court's decision in Graham v. Richardson, 403 U.S. 365 ( 1971). In Graham, the Court held that the Four- teenth Amendment forbids statutory classification based on ali- enage unless the discrimination can be justified as necessary to achieve essential governmental interest. After Graham v. Rich- ardson and after the above mentioned opinions were issued, several lower court decisions have begun to define more specifi- cally the kinds of governmental interests that can justify a citi- zenship requirement for entry into an occupational field. These decisions are fully consistent with our eariler Opinions. They indicate that aliens may be barred from an occupational field only when loyalty and detailed familiarity with American cul- ture are necessary qualifications for a position closely linked to uniquely governmental functions, such as the administration of justicel or the conduct of foreign policy.2 On the other hand, when citizenship requirements restrict access to important jobs that are not, however, clos·ely related to necessarily public func- tions, they are invalidated. For example, a citizenship require- ment for positions with the New York Human Resources Admin- istration has been struck down. Dougall v. Sugarman, 339 F. Supp. 906 ( 1971). Teaching, like medicine, is an important pro- fession, but it is not a central governmental function like the operation of foreign policy or the administration of justice. These latter functions, for example, are never entrusted to private in- stitutions as teaching often is in the United States. We conclude that entry into the teaching profession is not to be restricted on the basis of citizenship. By permitting aliens to teach in public schools as exchange teachers or as permanent teachers of foreign languages, the Public School Code itself im- plies that the state's interest in keeping aliens from teaching in the public schools is not so compelling an interest as to outweigh other public policies. Graham v. Richardson and the lower court cases applying Graham require the conclusion that the Consti- tutional policy of giving equal protection of the laws to citizens and aliens alike outweighs whatever interest the state has in the citizenship requirements in Sections 1109 and 1202. Sincerely yours, ROBERT NAGEL Deputy Attorney General ISRAEL P ACKEL Attorney General 1. In Re Griffiths, 40 L. Wk. 2566 (Conn. Sup. Ct. 1972) 2. F arulci v. Rogers, 41 L . Wk. 2193 (U.S. D.C., Dist. Col. 1972) OPINIONS OF THE ATTORNEY GENERAL 21