The Constitutional Issue Behind Proposition 187

WASHINGTON — We are a nation of immigrants. Yet, there have always been Americans who resented newcomers. Nativism aimed at Catholics flour ished in the 19th Century; hostility toward Asian-Americans and La tinos is widespread today.

This traditional animosity toward newcomers is now aggravated by the existence of many immigrants here illegally. The United States Immigration and Naturalization Service estimates that 3.4 million illegal immigrants were in the United States in 1992, 80% of whom are in Texas, California and Florida. California alone is estimated to have 1.6 million.

Illegal immigrants make a significant contribution to the economy, for they will do work Americans don’t want to do, often under harsh and unlawful conditions. But since they are eligible for some social services, particularly health care and education for their children, they also cost the state money.

No one really knows whether, on balance, illegal immigrants benefit or drain our economy. Nonetheless, at a time when the standard of living is stagnant and public resources are scarce, taxpayers are outraged at spending any tax money for these unwelcome guests.

In California, the issue has moved into the political arena. Proposition 187 would take away almost all the social services that illegal immigrants get, including child welfare, foster care, non-emergency health care (including prenatal services) and public education for elementary, high-school and university students. The purpose is to save money--but also to make life so miserable for illegal immigrants that they will stop coming.

The wisdom and effectiveness of the measure are open to dispute. What is not disputable is that the cutoff of elementary and high-school education for the children of illegal immigrants is unconstitutional. A 1982 U.S. Supreme Court decision involving a similar Texas effort, Plyler vs. Doe, made that clear.

And the backers of Proposition 187 know that. Alan C. Nelson, immigration commissioner from 1982-89 and a co-author of the initiative, said, “It is meant to provoke court action. There’s nothing new about getting decisions reversed when circumstances have changed, and in immigration terms, we are a world away from 1982.”

To some extent, Nelson is right. Changed circumstances can produce an occasional reversal, as in the overturn of the separate-but-equal doctrine in 1954, in Brown vs. Board of Education.

But such cases are extremely rare. And have circumstances truly changed since 1982? Not really. The facts and reasons for denying illegal immigrant children a public-school education that Texas presented to the court are the same as those put forth to justify Proposition 187, and the court’s response is no less valid today than it was then--and just as likely.

In the first place, the illegal-immigrant problem in California and elsewhere is not new. In 1986, it led to passage of the Immigration Reform and Control Act, which took years to hammer out.

Second, Texas claimed as much trouble from the presence of illegal immigrant children in the public schools in 1982 as California does today. About 10% of the pupils in Texas school districts bordering Mexico had been born in Mexico. The immigrant children often spoke little or no English and had serious educational problems. Their presence overcrowded schools already full.

According to the Texas attorney general, all this created financial strains and lowered the quality of education for the entire school system--especially for the children of the legal immigrants. “Preservation of the state’s resources for the education of its lawful residents and the elimination of an inducement for illegal immigration are sufficient basis for the statute,” asserted the Texas attorney general.

The Supreme Court’s response to this, in an opinion by Justice William J. Brennan Jr. for five members of the court, is as applicable now to California as it was then to Texas. While doubting that illegal immigrants come for a free education, impose a significant burden on the state’s economy or degrade the overall quality of Texas education, the court’s main reasons went to the heart of the kind of country we are.

The first is what the court called the “fundamental conceptions of justice” on which our system is based. Although parents who can comply with the law but enter unlawfully may be punished,

“the children . . . can affect neither their own conduct nor their own status . . . . (Visiting condemnation on . . . an infant . . . is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing . . . . (P)enalizing (them for) a legal characteristic over which children can have little control . . . is an ineffectual--as well as unjust--way of deterring the parent.”

The second reason is the “pivotal role of education in sustaining our political and cultural heritage, . . . (its) fundamental role in maintaining the fabric of our society.” The inability to read and write imposes a “lifelong penalty and stigma” that “denies the means to absorb the values and skills on which our social order rests.” The result, as Justice Lewis F. Powell Jr. warned, is “the creation of a subclass of illiterate persons . . . adding to the problems and costs . . . (of) unemployment, welfare and crime.”

Even the four dissenters, led by Chief Justice Warren E. Burger, called the Texas statute “senseless” and agreed that “creating . . . a permanent caste . . . of illegal Mexican residents (was) disturbing” and probably more costly than educating them. They, nonetheless, could not find it unconstitutional.

The backers of Proposition 187 know all this, for they can read Supreme Court decisions, too. The “changed circumstance” they may be relying on is the markedly changed composition of the court since 1982. Justices Brennan, Thurgood Marshall and Powell, in the majority on Plyler, have been succeeded by conservative justices Clarence Thomas and Anthony M. Kennedy. But a reversal is still unlikely. The key justice is likely to be Kennedy, and he has shown himself reluctant to overrule cases establishing rights, most notably in the 1992 abortion decision, Planned Parenthood vs. Casey.

If the law becomes outdated, it should be changed. But the simple justice and sound policy that underlay Plyler vs. Doe are not outdated. The denial of basic education that Proposition 187 would produce today is as “senseless” and “unjust” as Texas’ denial was in 1982--and it is just as unconstitutional.*