The opinion of the court was delivered by: Decker, District Judge.
This is a suit for a declaratory judgment and injunctive
relief brought by Mohammed Younus and Pete Alexopoulos, two
resident aliens who are teaching in the Chicago City College
System. Named as defendants are the Board of the Junior
College District No. 508, Cook County, Illinois ("Board"), and
the Board's Chancellor, Oscar E. Shabat.
Plaintiff Younus is a citizen of India who was lawfully
admitted for permanent residence in the United States in 1968.
8 U.S.C. § 1101(a)(20). Plaintiff Alexopoulos is a citizen of
Greece who was lawfully admitted for permanent residence in the
United States in 1967. 8 U.S.C. § 1101(a)(20).
Both plaintiffs teach at Southwest College, one of the
colleges in the Chicago Junior College System. The gravamen of
the complaint is that defendants have refused to grant
plaintiffs tenured positions on the faculty of Southwest
College solely because of their status as aliens, in violation
of the Fourteenth Amendment to the Constitution and the
Federal Civil Rights Act. 42 U.S.C. § 1983.
This matter has been submitted to the court on the basis of
the complaint, a motion for a preliminary injunction, a motion
to dismiss, and various briefs in support of the parties'
respective positions. Defendants have stipulated that for
purposes of a final disposition of this matter, the
allegations of the complaint may be accepted as true. The
allegations demonstrate that Younus became eligible for tenure
in February, 1971, and that Alexopoulos became eligible in
September, 1970. They also show that the chairmen of
plaintiffs' respective departments recommended tenure for
them, which recommendation was concurred in by the President
of Southwest College. Plaintiffs allege, and defendants
concede, that the sole reason why Younus and Alexopoulos were
denied tenure was their status as resident aliens.
The policy of not granting tenure to alien teachers is
embodied in Appendix D, Paragraph 3 of the agreement entered
into between the Board and the Cook County Teachers Union,
Local 1600 ("Union"). See ¶ 8 of the Complaint. That policy was
carried forward in Rule 2-9 promulgated by the Board. See ¶ 9
of the Complaint. Now, however, a new agreement has been
entered into by the Board and the Union with respect to the
issue of non-tenured aliens, the effect of which is to require
defendants to make a decision by December 31, 1971, as to
whether plaintiffs are to be granted tenure despite their
The issue posed by the new provision is whether plaintiffs'
case is moot. Defendants must decide within two months whether
plaintiffs are to be granted tenure, and if not, they are to
be terminated. While the court cannot predict the Board's
decision, it nevertheless would find it difficult to imagine
any decision other than one granting tenure to both
plaintiffs, based on past recommendations of the heads of
plaintiffs' departments. Even assuming that on March 1, 1972,
both plaintiffs were notified that they were being granted
tenure, still the case would not be moot. Except for their
alienage, plaintiffs have been qualified for tenure for some
time now, and during that time they have been denied the
accompany tenure, in particular, a larger salary and
eligibility for sabbatical leave. Thus, to leave plaintiffs to
the remedy set out in the new Union-Board contract would not
make plaintiffs whole. The case as it now stands is not moot.
Turning to the merits of plaintiffs' claim, it is now
settled beyond doubt that the Equal Protection Clause of the
Fourteenth Amendment applies not merely to citizens, but to
all persons who are lawfully-admitted resident alien. Yick Wo
v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220
(1886). It has also been held that the Equal Protection Clause
is applicable to the employment conditions of teachers in
public colleges. See Rainey v. Jackson State College,
435 F.2d 1031 (5th Cir. 1970); Trister v. University of Mississippi,
420 F.2d 499 (5th Cir. 1969); See also, Shirck v. Thomas,
447 F.2d 1025 (7th Cir. 1971); Roth v. Board of Regents of State
Colleges, 446 F.2d 806 (7th Cir. 1971). The application of the
Equal Protection Clause to aliens was recently spelled out in
Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d
534 (1971), where the court stated:
Under traditional equal protection principles,
a State retains broad discretion to classify as
long as its classification has a reasonable
basis. (citations). This is so in "the area of
economics and social welfare." Dandridge v.
Williams, 397 U.S. 471, 485, [90 S.Ct. 1153,
1161, 25 L.Ed.2d 491] (1970). But the Court's
decisions have established that classifications
based on alienage, like those based on
nationality or race, are inherently suspect and
subject to close judicial scrutiny. Aliens as a
class are a prime example of a "discrete and
insular" minority (see United States v. Carolene
Products Co., 304 U.S. 144, 152-153 n. 4, [58
S.Ct. 778, 783-784, 82 L.Ed. 1234] (1938)) for
whom such heightened judicial solicitude is
appropriate. Accordingly, it was said in
Takahashi [v. Fish & Game Commission], 334 U.S.
, at 420 [68 S.Ct. 1138, at 1143, 92 L.Ed.
1478] that ". . . the power of a state to apply its
laws exclusively to its alien inhabitants as a
class is confined within narrow limits." 403 U.S.
at 371-372, 91 S.Ct. at 1852.
Graham v. Richardson involved state welfare laws which
discriminated against welfare applicants on the basis of their
alienage. Those laws, which made eligibility contingent upon
United States citizenship or upon an alien's residing in the
country for a specified number of years, were held to deny
alien welfare applicants equal protection of the laws. While
the instant case involves eligibility for tenured status in a
state college system, rather than eligibility for state
welfare payments, the principles of Graham v. Richardson are
fully applicable to this case.
Defendants argue that their restriction upon granting tenure
to alien teachers "bear[s] some rational relationship to a
legitimate state end." McDonald v. Board of Election
Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22
L.Ed.2d 739 (1969). This is but another way of saying that the
State has a "special public interest" in favoring its own
citizens over aliens in the distribution of limited public
resources. The continuing validity of the special public
interest doctrine has been brought into question recently. See
Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29
L.Ed.2d 534 (1971); Takahashi v. Fish & Game Commission,
334 U.S. 410, 420, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). However,
whatever the present status of the special public interest
doctrine, it is clear that defendants have failed to put
forward any acceptable justification for discriminating
Defendants main reason for discriminating against plaintiffs
is the so-called national interest which the state has in
providing its own citizens with work. By not granting
plaintiffs tenure, they can be laid off work in the event of
an economic slowdown. Were they tenured,
then non-tenured employees, many of whom would inevitably be
citizens, would be laid off before the alien plaintiffs.
Defendants argue that the employment of alien teachers at a
time when citizen teachers are out of work is not in the
The so-called "national interest" justification was advanced
and rejected in Graham v. Richardson. In that case defendants
argued that national interest required the states to devote
their limited welfare funds to citizens first and only
afterward to aliens. In rejecting defendants' argument, the
Since an alien as well as a citizen is a "person"
for equal protection purposes, a concern for
fiscal integrity is no more compelling a
justification for the questioned classification
in these cases than it was in Shapiro [v. Thompson,
394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600
(1969)]. 403 U.S. at 375, 91 S.Ct. at 1853.
In the same vein, I think that the concern for fiscal
integrity is so nominal in this case as to render nugatory
defendants' justification of the denial of tenure.
Defendants also attempt to justify their dual classification
on the ground that other public bodies discriminate against
aliens as well. What others may do does not, of course,
justify a classification which denies these plaintiffs equal
protection. Moreover, plaintiffs research has persuasively
rebutted defendants' allegation that other public institutions
discriminate against lawfully-admitted resident aliens in
their employment policies. This attempt to justify defendants'
discrimination fails for lack of a rational basis.
Finally, defendants attempt to justify their refusal to
grant tenure to plaintiffs on the ground that, as aliens,
their allegiance to the principles of the United States
remains questionable. However, the whole import of Section III
of Graham v. Richardson is to the effect that in the area of
immigration, the national government has to a great extent
preempted the field of legislation, and that to the extent
state laws and regulations are inconsistent therewith, the
latter cannot stand. The Immigration and Nationality Act
already makes suitable provision for excluding those persons
with questionable allegiance. 8 U.S.C. § 1182(a)(27), (28),
(29). The additional burden placed upon immigrants by
defendants is nowhere provided for in the Immigration and
Nationality Act, thus the restriction upon tenure cannot be
justified on the ground of plaintiffs' alleged questionable
For the foregoing reasons, defendants have failed to justify
their refusal to grant tenure to plaintiffs on the ground of
their alienage. Accordingly, judgment is entered declaring
that plaintiffs, from this day forward, are to be accorded the
same rights as tenured teachers enjoy. In addition, defendants
are ordered to tender to plaintiffs employment contracts which
secure to plaintiffs tenured status, in the case of plaintiff
Younus retroactive to February, 1971, and in the case of
Alexopoulos retroactive to September, 1970, and in both cases
continuing through the academic year 1971-1972. Defendants are
further ordered to award plaintiffs the difference between the
salaries they actually earned and the salaries they would have
earned if they had been granted tenure on their respective
dates of eligibility. In general, plaintiffs are to be awarded
all privileges which accompany tenured status, retroactive to
their respective dates of eligibility.
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