The Justice Department has told the Supreme Court that it will not take a position on whether Texas must provide free public education to children of illegal aliens.
The decision is a major break from the policy during the Carter administration, when the Justice Department told lower federal courts that a Texas law allowing school districts to charge tuition for such children was unconstitutional.
The department has told the Supreme Court that it will allow the matter to be threshed out between state officials and the parents of the students in a case before the high court.
"The United States will leave to the parties directly affected the arguments concerning whether the equal-protection clause" of the Constitution "requires Texas to educate alien children who were not lawfully admitted into the United States," the department told the court.
The Justice Department position was filed with the Supreme Court Friday night, but was not made public until yesterday.
David Dean, general counsel to Texas Gov. Bill Clements, said Monday that the governor was alerted to the department's decision last week and is "enthusiastic" about it.
"As we understand it, the Reagan administration's position is that this is purely a matter of states' rights and that states should act as they decide . . . . This is a state issue," Dean said. "The federal government has no business coming into Texas to force the state to provide free education for children of illegal aliens.
"Clearly it will be a big plus to the state's position" to have the Justice Department neutral, he said.
Tony Bonilla, national president of the League of United Latin American Citizens, called the action "another in a long series of retreats by this administration on issues dealing with the protection of rights of minorities."
The Justice Department "is slowly but surely losing all credibility with Hispanic Americans," he said.
In 1975 the Texas Legislature passed a law allowing school districts to charge tuition for children who are not "legally admitted" to this country. The law also allows local school districts to keep such children out of the public school system.
The Justice Department maintains that the Texas law does not violate federal immigration or education statutes.
The 5th U.S. Circuit Court of Appeals ruled that the Texas law is unconstitutional.
The first case involving the right of children of illegal aliens to public education was filed in Tyler, Tex., in 1978. In that suit, U.S. District Court Judge William Wayne Justice ruled that a Texas law prohibiting the use of state funds for the education of illegal aliens was unconstitutional.
In 1979, 17 other suits were filed, and in late 1979 they were consolidated before U.S. District Court Judge Woodrow Seals in Houston. On Feb. 1, 1980, the Carter administration intervened in the case on behalf of the plaintiffs.
Last summer, Seals ruled that denying undocumented children an education violated the equal-protection clause of the Constitution. The state appealed to the 5th Circuit Court of Appeals, which upheld Seals' ruling last February.
In May, the Supreme Court agreed to hear the case, which has been consolidated with the Tyler decision. The state filed its briefs last week. Plaintiffs' briefs are due around the end of this month. Oral arguments have not been scheduled.
Texas Attorney General Mark White, who was unavailable yesterday to comment on the Justice Department's action, has said he favors free education for undocumented children, but said he believes that the federal government should pay for it.
The Texas Legislature failed to pass legislation this year to repeal the law banning the use of state funds for educating children of undocumented workers.
During the 1980-81 school year, an estimated 11,000 such children attended Texas public schools, a figure far smaller than educators had predicted at the time of Seals' ruling. The number is expected to be larger this year, according to Brian Wilson of the Texas Education Agency.