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Prop. 187 Ban on Higher Education Blocked : Courts: Judge’s temporary ruling affects about 13,600 illegal immigrants now attending public colleges in California.

TIMES LEGAL AFFAIRS WRITER

In another blow to Proposition 187, a Superior Court judge Wednesday issued a preliminary injunction preventing the state from enforcing the measure’s provisions excluding illegal immigrants from California’s public colleges and universities.

The ruling by San Francisco Superior Court Judge Stuart R. Pollak leaves all of the initiatives’ major provisions blocked pending trials. Pollak enjoined provisions requiring the state colleges and universities to expel illegal immigrants and report them to authorities.

“There certainly is a sufficient likelihood that the petitioners will prevail in one or more of their theories,” the judge said after a three-hour hearing.

Proposition 187, if implemented after the trials, could force California’s higher education officials to expel about 13,600 illegal immigrants now enrolled in public colleges and universities and turn them in to federal immigration authorities for possible deportation.

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A federal judge in Los Angeles already has enjoined other provisions that would deny illegal immigrants non-emergency health care and social welfare services and require police to check the immigration status of arrestees and those suspected of being in the country unlawfully.

Illegal immigrants now enrolled in community colleges and at University of California campuses pay higher tuition than residents, and the Cal State system also plans to make undocumented students pay out-of-state tuition as a result of a recent ruling in another case.

The lawsuit against Proposition 187’s higher-education provisions was brought by undocumented immigrants enrolled in public colleges. Some already have applied to federal immigration authorities for legal status.

The suit contends that the college ban violates the U.S. Civil Rights Act and a federal law requiring public education officials to keep student records private.

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Ralph Abascal, a California Rural Legal Assistance lawyer representing the students, told Pollak that the ballot measure already is scaring away undocumented residents from applying to colleges for the fall.

But state Deputy Atty. Gen. Raoul Thorbourne, who argued against the preliminary injunction, said that was precisely what the measure was intended to do.

Thorbourne told Pollak that an order blocking the provisions was unnecessary because the initiative would not be implemented until regulations are in place. “We are in fact jumping the gun,” Thorbourne said.

The Civil Rights Act, which gives inhabitants of the United States the right to enter into contracts, was not intended to cover illegal immigrants, he argued.

Pollak, however, said he had little choice but to enjoin the provisions. He said students faced imminent harm from their enforcement and had cited enough legal arguments to show that they have a reasonable chance of winning their case during a trial.

Potential for harm to the state is “virtually nil” because state officials can continue to prepare regulations pending the trial, the judge said.

Pollak extended a temporary restraining order that he had issued in November until the exact wording of the preliminary injunction could be worked out by the lawyers in the case.

He indicated that a trial on the provisions may be held by June, when he has tentatively scheduled a trial on Proposition 187’s prohibition against illegal immigrants in grades kindergarten through 12.

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“I think the judge showed a lot of sensitivity to the issues in the case and seemed to understand the significant harm that would occur to the students,” said Stephen Rosenbaum, an attorney for California Rural Legal Assistance.

Thorbourne said he did not immediately know whether the state would appeal Pollak’s decision.


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