Posted on 02/11/2002 11:14:47 AM PST by janetgreen
Is Proposition 187 really legal after all?
Well, it is part of the Education Code
Go to the following url, select California Education Code, and search for 48215
http://www.leginfo.ca.gov/calaw.html
CALIFORNIA EDUCATION CODE SECTION 48215.
(a) No public elementary or secondary school shall admit, or permit the attendance of, any child who is not a citizen of the United States, an alien lawfully admitted as a permanent resident, or a person who is otherwise authorized under federal law to be present in the United States.
(b) Commencing January 1, 1995, each school district shall verify the legal status of each child enrolling in the school district for the first time in order to ensure the enrollment or attendance only of citizens, aliens lawfully admitted as permanent residents, or persons who are otherwise authorized to be present in the United States.
(c) By January 1, 1996, each school district shall have verified the legal status of each child already enrolled and in attendance in the school district in order to ensure the enrollment or attendance only of citizens, aliens lawfully admitted as permanent residents, or persons who are otherwise authorized under federal law to be present in the United States.>p> (d) By January 1, 1996, each school district shall also have verified the legal status of each parent or guardian of each child referred to in subdivisions (b) and (c), to determine whether such parent or guardian is one of the following:
(1) A citizen of the United States.
(2) An alien lawfully admitted as a permanent resident.
(3) An alien admitted lawfully for a temporary period of time.
(e) Each school district shall provide information to the State Superintendent of Public Instruction, the Attorney General of California, and the United States Immigration and Naturalization Service regarding any enrollee or pupil, or parent or guardian, attending a public elementary or secondary school in the school district determined or reasonably suspected to be in violation of federal immigration laws within forty-five days after becoming aware of an apparent violation. The notice shall also be provided to the parent or legal guardian of the enrollee or pupil, and shall state that an existing pupil may not continue to attend the school after ninety calendar days from the date of the notice, unless legal status is established.
(f) For each child who cannot establish legal status in the United States, each school district shall continue to provide education for a period of ninety days from the date of the notice. Such ninety day period shall be utilized to accomplish an orderly transition to a school in the child's country of origin. Each school district shall fully cooperate in this transition effort to ensure that the educational needs of the child are best served for that period of time.
The Pacific Legal Foundation has claimed that no initiative passed by California voters can be held unlawful unless tested by an appeals court. That did not happen with Proposition 187. Could it be that the entire education establishment is breaking the law? Glenn Spencer
I see, somehow you magically know that everyone that expects our government to enforce its own immigration laws and stop the ongoing epic invasion of illegal aliens from Mexico is some lower middle class person. Do you know me? This condescending arrogance and presumptiveness are quite typical of your ilk and is indicative of a delusional mindset that cant quite come to grips with reality. Let me guess, you are one of those Republicans that thinks the GOP is going to benefit from the rising tide of 3rd world immigration in the U.S. and that this will lead to a new conservative revolution. Never mind past election results. This time around it is going to work if we pander enough.
I am FOR stricter enforcement of immigration laws.
Sure you are.
Sure you are.
Actually, I am Peter Brimelow.
What a small world. And I am Pat Buchannan. LOL.
After all - they have the largest population of "sheeple" in the US!
My sympathy for those Californians who are not liberal has rapidly diminished. I now am of the opinion that they are getting what they deserve for sitting on their butts and allowing the liberals to take over.
And no, I am not downplaying the invasion from south of the border in the problems at hand, I am just sick of California being the breeding ground for a large portion of the liberal BS we are having to endure now across the country.
The breeding ground part you have right. Millions of illegals cross our border yearly, and they are breeding big time, having children who become instant citizens, then they collect every social service freebie you can imagine, then they tell their friends south of the border, then this brings millions more next year. California voted against granting them social services, but a liberal judge overruled the voters of California. The federal government will do nothing to close the border.
Conservatives aren't sitting on our butts doing nothing, we have been plainly outnumbered. The Mexicans support the party who promises the most freebies.
Well DUH!
Who do you think is living among the millions of uneducated illegal aliens? LOL! Its not the politicians and so-called leaders that live in the guarded, gated secure communities of $400,000 plus homes with very tall financial fences.
Why would these wealthy politicans have resentment? They are the ones that are encouraging and supporting this titanic invasion. LOL!
Conservatives aren't sitting on our butts doing nothing, we have been plainly outnumbered. The Mexicans support the party who promises the most freebies.
A DECISION UNDER FIRE by [A shortened version of this article appeared in the Los Angeles Daily Journal on December 18, 1995, at p. 6. The Daily Journal is the city's primary newspaper for the legal community.] On November 20, 1995, United States District Judge Mariana R. Pfaelzer ruled that several provisions of California's Proposition 187 violate federal law. (League of United Latin American Citizens v. Wilson, 908 F.Supp. 755 (C.D.Cal. 1995)). Among these provisions is the one that denies public elementary and secondary education to children who are not authorized by federal law to be present in the United States. In ruling on this provision Pfaelzer made four errors. First, she misstated the scope of the provision; then she misconstrued the federal preemption doctrine and invoked the United States Supreme Court's opinion in Plyler v. Doe, 457 U.S. 202 (1982). Finally, she misinterpreted Plyler. Pfaelzer said:
(League, at 785). Pfaelzer cited sections 7(a), (e) & (f) of Proposition 187 (Educ. C. § 48215) in support of her assertion. (Id.) However, contrary to her second point, Proposition 187 does not deny education benefits to children who are legally present, but whose parents or guardians are in the United States unlawfully. Section 7(a) of Proposition 187 is a "benefit denial" provision and states:
Section 7(e) does not deny any benefit, but is a "reporting" provision that requires school districts to provide information to the United States Immigration and Naturalization Service and others, regarding "any enrollee or pupil, or parent or guardian," attending public elementary or secondary schools who are determined or reasonably suspected to be in violation of federal immigration laws. It also requires school districts to provide the information to "the parent or legal guardian of the enrollee or pupil," with a statement "that an existing pupil may not continue to attend the school after ninety calendar days from the date of the notice, unless legal status is established." Section 7(f) does not mention anything about parents or guardians and requires schools districts "to provide education for a period of ninety days from the date of the notice" given under section 7(e), to "each child who cannot establish legal status in the United States." There is no logical reason for Pfaelzer to have stated that Proposition 187 denies educational benefits to "children who are citizens or otherwise legally present, but whose parents or guardians are in the United States unlawfully." Pfaelzer's next error was to misconstrue the federal preemption doctrine. She began with her acknowledgment that the plaintiffs' summary judgment motions upon which she ruled were based on "the sole ground that the initiative is preempted by the federal government's exclusive constitutional authority over the regulation of immigration, Congress' exercise of that power through the Immigration and Nationality Act ("INA") and other federal statutes." (League, at 764). However, hornbook law states that the federal preemption doctrine arises from the supremacy clause of the U.S. Constitution and requires that when "Congress exercises a granted power, concurrent conflicting state legislation" is overridden. (J. Nowak & R. Rotunda, Constitutional Law § 9.1, at 311 (West 1991)). Such conflicting state legislation does not have to be violative of the U.S. Constitution to be preempted; it merely has to conflict with federal law as enacted by Congress or a federal agency. When state law only conflicts with a provision of the U.S. Constitution, it is inappropriate to speak about the preemption doctrine. In such a case the state law's conflict with the Constitution is what invalidates the law. Ignoring this distinction, Pfaelzer assumed that state law violative of the Constitution falls within the preemption doctrine. Building on her incorrect assumption she then invoked the Plyler case, even though that case only involved a violation of the Equal Protection Clause, not Congressional preemption. She did this while acknowledging that "plaintiffs did not assert Plyler as a basis for conflict preemption of section 7 in their motions for summary judgment..." (League, at 785 n.36). Pfaelzer then proceeded to misinterpret the Plyler opinion. She stated:
(League, at 785, footnotes omitted). Pfaelzer implied that Plyler held that under our present Constitution a state could never use a person's illegal immigration status as a basis for denying that person public elementary and secondary education. Her implication is incorrect. Plyler clearly allows a state to deny such education to illegal aliens under certain circumstances and those circumstances apparently exist in this case. Moreover, Pfaelzer failed to mention several key portions of Plyler that explain why the Texas law in that case was invalidated. She also failed to mention key facts that distinguish California's denial of educational benefits from Texas' denial. Pfaelzer failed to mention that the Court in Plyler said that the "Equal Protection Clause directs that all persons similarly circumstanced shall be treated alike" but it "does not require things which are different in fact or opinion to be treated in law as though they were the same" (Plyler, at 216). Plyler further recognized that children who are legally here are not similarly situated with children who are illegal aliens because the latter are "in violation of federal law" -- a distinction the Court said was "not a constitutional irrelevancy" (Plyler, at 223). She failed to mention that Plyler held the Texas denial would be constitutional if it furthered "some substantial state interest" (Plyler, at 230). But incredibly, Plyler held that "the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State" (Plyler, at 229). Plyler also held that the record does not support "the claim that the educational resources of the State are so direly limited" that the exclusion is a reasonable solution (Plyler, at 229 n.25). Plyler further said: "There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State's economy" (Plyler, at 228). Plyler also recognized that while regulation of immigration is an exclusively federal function, a state may take action, consistent with federal immigration policy, to protect its economy and ability to provide governmental services from the deleterious effects of a massive influx of illegal immigrants. Plyler said:
(Plyler, at 228 n.23.) A great deal of evidence exists in the public record demonstrating that California would be able to make the showing Texas failed to make. The analysis of Proposition 187 by the state legislative analyst said that the provision denying public education to illegal aliens could save the state up to $1.2 billion annually. Governor Pete Wilson put the figure at $1.5 billion. A more recent federal Government Accounting Office analysis basically supports Wilson. Therefore, given California's massive budget deficits, the underfunding of our schools, underpayment of teachers, the $1 billion-plus annual cost of educating illegal aliens, it's clear that California can make the showing that Texas was unable to make, thereby preserving Proposition 187's denial without violating Plyler. However, since Plyler was not raised by plaintiffs and the Equal Protection Clause was not an issue in these summary judgment motions, the state did not address Plyler or provide the evidence that would justify the denial of education benefits. By invoking Plyler on her own, without it being raised by plaintiffs, pursuant to her misconstruing of the preemption doctrine, Pfaelzer denied California the opportunity to make the showing that Plyler clearly said could justify a denial of public elementary and secondary education to illegal aliens. Additionally, because her misinterpretation of Plyler failed to allow for an evidentiary showing of the deleterious effects of illegal alien students on the state, Pfaelzer again denied the state an opportunity to make the showing it has a right to do under Plyler. Pfaelzer has been accused of deliberately putting her own political and social views ahead of the law. She only fuels such accusations by making a ruling that is not supported by the law. EPILOGUEAfter Pfaelzer's ruling the state of California filed a written motion with her explaining most of the errors described above. She heard oral argument on this motion Tuesday, December 12, 1995. Here is an excerpt of a news report of that hearing:
Beginning Tuesday's hearing with statements designed to tailor the conversation, Pfaelzer first noted her denial of the defense motion: "It's obvious the showing" that the defendants want to make on the state's financial situation "was in fact made and rejected in Plyler." Thom Mrozek, State Must Name Programs to Implement Parts of Prop 187, Los Angeles Daily Journal, at 2 (Dec. 13, 1995). Compare Pfaelzer's statement to the following portion of Plyler: "There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State's economy." (Plyler, at 228). Thus, clearly contrary to Pfaelzer's oral statement as reported by the Daily Journal, a showing that illegal immigrants place unacceptable financial burdens on the state was not made in Plyler! Pfaelzer's oral statement as reported by the Daily Journal is a 100% distortion of Plyler. |
Thank you for this, AJFavish. It's an outrage that our California politicians didn't challenge this to protect California. Is this a moot issue now, or can something still be done to challenge it?
I have repeatedly e-mailed Doofus Davis our "governor", telling him that the state wouldn't be in the red anymore if he would stop forcing us to support Mexico. We would save billions. I never get an answer from him except for the canned response. Another Prop 187 is something I would march for!
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