Prop. 187 Ban on Higher Education Barred : Courts: Judge’s temporary ruling affects nearly 15,000 illegal immigrants now attending state colleges.

Enforcement of Proposition 187’s ban on public higher education for illegal immigrants was barred for at least several months Wednesday by a Superior Court judge who said it may violate federal law.

Judge Stuart Pollak’s preliminary injunction was issued exactly three months after the election in which voters approved the immigration initiative and a month after a federal judge issued an injunction against most of the other provisions.

The only part of 187 now enforceable is an increase in criminal penalties for making, selling or using false immigration documents.

The ban on higher education affects about 14,000 illegal immigrants at community colleges, 500 at California State University campuses and 125 at the University of California, according to a report in October by a state Assembly committee.

Pollak, who issued a restraining order against the ban the day after the election, said his injunction will remain in effect until a lawsuit by immigrant-rights groups goes to trial, probably by June.

The initiative, approved by 59% of the voters, excludes illegal immigrants from public education, social services and non-emergency health services. It also requires government agencies to report suspected illegal immigrants to federal authorities.

A trial is tentatively scheduled for June in Pollak’s court on the requirement to expel illegal immigrants from grades kindergarten through 12. That ban conflicts with a 1982 U.S. Supreme Court ruling requiring Texas to provide public schools for all residents, though lawyers for Gov. Pete Wilson have argued that California’s financial plight provides greater justification for its ban.

The higher education provisions are not covered by the Supreme Court ruling and may be easier to defend because a college education has not been defined as a constitutional right.

But Pollak said the ban may violate a post-Civil War law guaranteeing everyone in the United States an equal right to make and enforce contracts. He said the law has been interpreted by federal courts to protect undocumented immigrants.

California Rural Legal Assistance lawyers argue that prohibiting illegal immigrants from attending public colleges would violate the right of current students to enforce their tuition contracts and would interfere with the right of applicants to sign such contracts.

Lee Rydalch, a lawyer for the CSU system, said the schools’ relationships with their students were governed by state laws, not private contracts, and could be changed by Proposition 187 in much the same way that state law affects employment contracts.

But Pollak said the issue is at least debatable. He said requiring the schools to keep current students and accept new applications would cause little or no harm to the state, because illegal immigrants must pay the full cost of their college education, just like out-of-state residents, under a recent court ruling.

The judge also said the language of Proposition 187 may exclude from college a large number of immigrants whose applications for legal status are pending with the Immigration and Naturalization Service.

Deputy Atty. Gen. Raoul Thorbourne said that any such confusion would be cleared up when the colleges complete work on regulations interpreting the initiative. Those regulations might allow immigrants with pending INS applications to stay in school, he said.

An injunction would be premature because “nobody is facing any harm,” Thorbourne said. But he refused to guarantee that no one would be expelled, saying he couldn’t speak for the governing bodies of the colleges and universities.

Taking the same stance as U.S. District Judge Mariana Pfaelzer in the federal court case, Pollak said he would let state agencies continue to develop regulations, but he refused to give them a free hand to enforce the law in the meantime.

In addition, Pollak said, Proposition 187’s requirement for colleges to report suspected illegal immigrants to the INS appears to violate a federal privacy law that keeps student educational records confidential.

Thorbourne protested that immigration records are not educational records. “The court would be saying it’s not only OK to violate the law, but federal statutes would prevent you from being reported,” the state lawyer said.

But Pollak said it is “pretty darn clear” that the federal law protects immigration records.