Arguments on Texas Law May Not Be Viable : There is a strong opinion that facts in 1977 Plyler case when statute was found unconstitutional were quite different from those in California.

Howard L. Ekerling is an attorney with offices in Sherman Oaks

Prop. 187: Will It Pass a Court Test?

Proposition 187, adopted by California voters in November, seeks to deny government-

financed education and social services to illegal immigrants. It is now in the courts.

The measure's educational provisions conflict with a 1982 U.S. Supreme Court decision that overturned a Texas law against public schooling of illegal immigrant children. The articles here give different views of a possible Supreme Court test of the measure.

In the San Fernando Valley, Proposition 187 passed with 62% of the vote, 3 percentage points above its statewide total.


As Proposition 187 turns to the courts, the 1982 Supreme Court decision in Plyler vs. Doe is being relied upon by opponents of the measure as support for the belief that it is invalid. Plyler struck down a Texas law denying public education to illegal immigrant children. For the reasons set forth below, it may no longer be viable.

In a dissenting opinion in Plyler, then-Chief Justice Warren Burger expressed his view that "were it our business to set the nation's social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children--including illegal aliens--of an elementary education." Yet he would have upheld the Texas law.

The chief justice was joined in his dissent by Justices William H. Rehnquist and Sandra Day O'Connor, who are still on the court. Proposition 187 needs five votes. Assuming that Rehnquist and O'Connor would support 187, three additional votes are needed. It is likely that Justices Clarence Thomas and Antonin Scalia would join Rehnquist and O'Connor. Only one vote would be needed from among Justices Anthony M. Kennedy, David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer. Stevens voted with the majority in 1982 and presumably would oppose Proposition 187. Kennedy is considered the most likely to vote in favor of Proposition 187.

Opinions of the Supreme Court are not easily changed. But where the reason for a rule no longer applies, the law will not apply the rule. In 1954, the Supreme Court ruled in Brown vs. Board of Education that racially separate public schools could not be equal, casting aside the court's 1896 decision in Plessy vs. Ferguson with a single sentence and a footnote citing recent sociological studies. The passage of time and these new facts caused the court to alter its opinion.

In the Plyler case, the court recognized that "in determining the rationality of (a law) we may appropriately take into account its costs to the nation and to the innocent children who are its victims." The court went on to balance these countervailing costs and determined that the Texas law could not be upheld "unless it furthers some substantial goal of the state."

The Supreme Court recognized "that the courts must be attentive to congressional policy . . . but we are unable to find in the congressional immigration scheme any statement of policy that might weigh significantly in arriving at an equal protection balance concerning the state's authority to deprive these children of an education."


The court found "no evidence in the record suggesting that illegal entrants impose any significant burden on the state's economy." And it found no support for the claim "that exclusion of undocumented children is likely to improve the overall quality of education in the state."

But the court in Plyler said that education was not a fundamental constitutional right. And there is a strong argument that the facts in California today are different from the facts in Texas in 1977.

President Clinton's 1995 budget message sought additional money to control the border and curb illegal immigration, which he said is "a continuing problem which threatens this country's immigrant traditions and reduces the ability of state and local governments to provide quality human services." His health care plan would have excluded illegal immigrants from coverage, including emergency care.

The 1994 crime bill includes $1.8 billion for incarceration expenses of illegal immigrants, together with enhanced penalties for failure to leave after a deportation order. The hiring of illegal immigrants has been unlawful since 1987.

California may be able to use these new facts and congressional policies to prove that illegal immigrants have so harmed California's economy that state and local governments are unable to provide quality human services.

Recent studies have suggested that illegal immigrants in California cause a net deficit of public revenue. A General Accounting Office study in December showed a "net cost to California of $1.4 billion for education, Medicaid and incarceration" of illegal immigrants. Gov. Pete Wilson's estimates are even higher, approaching $5 billion.

If California can demonstrate that a "legitimate public purpose" is served by the denial of education services, health services and other public welfare services to persons not here lawfully, then Proposition 187 will be upheld.


There is another basis upon which Plyler can be distinguished from Proposition 187. Plyler involved the public elementary-school education of children . The court expressed the view that "persuasive arguments support the view that a state may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply with the same force to . . . the minor children of such illegal entrants."

Plyler can be narrowly applied to illegal immigration children only, and then only in the absence of some compelling state interest. Any doubt about the validity of Proposition 187 as to the minor children of the illegal immigrants has no application to adult illegal immigrants' receipt of the benefits of public school education, health services or other public social services.

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