The Return of ‘Caste-Based Legislation’ : The initiative violates the equal protection clause of the 14th Amendment, as demonstrated by the Supreme Court’s decision in a Texas case.

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.

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One of the key legal principles on which Proposition 187 rests is the assumption that a state, in order to conserve scarce public funds, may limit education and other public programs based on immigration status.

At least in regard to education, the U.S. Supreme Court visited this issue more than 12 years ago, and a majority ruled that states do not possess such powers under the Constitution. That case was Plyler vs. Doe. Its similarity to the issues involved in Proposition 187 are remarkably “on point,” as lawyers like to say.

The case began in 1975, when the Texas Legislature revised its education laws to withhold from local school districts state funds for the education of children who were not “legally admitted” into the United States. It also authorized local school districts to deny enrollment to such children.

This, of course, is in essence what Proposition 187 tries to accomplish. However, it goes one step further. Not only are children who cannot prove they are legally in the United States subject to dismissal, but in effect so are children who are U.S. citizens but whose parents are here illegally. Since the new law requires the immigration status of a student’s parents to be reported to the INS if it is suspected that they are here illegally, parents of children born here, and thus U.S. citizens, may refuse to enroll their children in school to avoid deportation.

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Justice William J. Brennan, now retired, wrote the majority decision for the court in Plyler. It was clear where he stood. “It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problem and costs of unemployment, welfare and crime,” Brennan wrote. “It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the cost involved to these children, the State, and the Nation.”

The legal basis for this conclusion was the equal-protection clause of the 14th Amendment to the Constitution. As you may recall, the 14th Amendment was passed after the Civil War. As Brennan put it, the amendment “was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.”

It was the constitutional underpinning of Brown vs. Board of Education, the decision that ended legal school segregation by race. The Brown case was quoted at some length in Plyler for the proposition that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” Although the court in Plyler did not go as far as to say public education was a “fundamental right,” or that illegal aliens are a “suspect class,” thus deserving of special protection, it found that there was no “rational justification for penalizing these children for their presence within the United States.” In biblical terms, children should not be punished for the sins of their parents.

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The court pointed out that many of these children, although presently in the United States illegally, may at some future time be granted legal status. The court feared that the stigma of illiteracy would mark them for the rest of their lives.

“By denying these children a basic education we deny them the ability to live within the structure of our civic institutions and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation,” the court said.

Indeed, since the Plyler decision was written there have been numerous changes to our nation’s immigration laws, including an amnesty provision that granted legal status to all of those children living illegally in the United States before 1982 who managed to remain here until 1986. Many of those children whom the state of Texas tried to expel from school are now U.S. citizens and voted in last year’s election.

What of the future of Proposition 187? I am sure that the current Supreme Court, even though more conservatively constituted than it was in 1982, will adhere to precedent--the essence of true conservatism--and rule that the educational provisions of California’s new law violate the equal-protection clause of the Constitution. For similar reasons, I believe that the provisions restricting health and welfare benefits will also be thrown out.

There are two other reasons the court may invalidate Proposition 187.

First, other attempts at state regulation of immigration have been held to be preempted by federal legislation when they do not mirror federal objectives.

Second, the procedure set out by Proposition 187 for determining who will fall within its purview, that is, those who state employees “suspect” are illegally in the United States, violates the constitutional guarantee of due process of law, since no notice and hearing is provided to those “suspects” prior to their legal rights being taken away by state action.

Although federal preemption or due process grounds alone could sink Proposition 187, the debate involving the equal-protection clause should be the most significant. For its purpose has not changed with the passage of time. It is still the great equalizer that prevents the emergence of a caste system in America.