Higher Cost of Aliens Alters Legal Priorities

	            National Law Journal
                     November 14, 1994

		        Dan Stein

Second only to the political fallout from Proposition 187, California's Nov. 8 ballot initiative that seeks state remedies in unchecked illegal immigration, has been the legal debate over whether a state has a right to decide on its own what services it will or will not provide to illegal immigrants.

The most controversial aspect of Proposition 187 is the clause that would deny free public education to illegal alien children residing in California. This is a direct challenge to the 1982 U.S. Supreme Court decision in a Texas case, Plyer v. Doe, 102 U.S. 2382. In a 5-4 vote, the high court ruled that any child living in the United States, regardless of legal status, is entitled to a free primary and secondary education. The authors of the proposition freely admit that one of their objectives is to bring the issue back before the court in light of the dramatic increase, since 1982, in the illegal alien student population in California, Texas, Florida and New York, and the dire fiscal problems these states are facing.

Writing for the majority in Plyer, Justice William Brennan stated that denying free public education to illegal alien children could not be justified as a deterrent to illegal immigration "when compared to the alternative of prohibiting employment of illegal aliens." Moreover, in the court's opinion, at the time "there was no evidence to indicate that illegal entrants imposed any significant burden on the state's economy."

In the opinion of the majority, the fact that Congress had not prohibited the employment of illegal aliens amounted to tacit acquiescence in the practice. Four years later, however, Congress did make it illegal to hire undocumented aliens. In doing so, Congress resolved the contradiction of holding these aliens' presence to be unlawful, but not their employment.

The burden on all levels of government in providing services to illegal aliens has become enormous in the dozen years since the Plyer ruling. California, along with several other heavily affected states, is suing the federal government to recoup the costs of these services. Comprehensive analysis by California of these costs has led the state to conclude that they amount to 10 percent of its budget and are growing. Just educating illegal immigrants in California is estimated to cost $1.5 billion annually.

Even the most ardent critics of Proposition 187 conclude that illegal immigration is a serious problem and that the federal government, by its failure to deter unlawful migration, is imposing substantial burdens on the taxpayers of many states. The Plyer decision ruled that the benefits of providing a public education to illegal alien children residing in Texas outweighed the costs at that time. The court did not, however, rule out the possibility that there might come a time when the burden would become too great.

Proposition 187 would reintroduce this issue to the federal courts. The high court was clear in 1982 when stating that "[p]ublic education is not a `right' granted to individuals by the Constitution." Rather, the court justified its decision by trying to balance the potential harm to society of having children who might go uneducated against the harm to society of having to spread educational resources more thinly. At the time in Texas, the former consideration outweighed the latter. It is not inconceivable that, based on present circumstances in California today, the current court might reach a different conclusion.

Critics of Proposition 187 have contended that its passage would force teachers to become "snitches" for Immigration and Naturalization Service and would result in the loss of $15 billion in federal funds because it violates federal statutes protecting family educational privacy rights. They are wrong on both counts.

Rather, enforcement responsibilities would be placed on school administrators on a one-time basis, at the time of a child's enrollment.

Administrators now routinely make eligibility determinations regarding residency and other criteria of enrollment eligibility without being considered a privacy violation. They are required, for instance, to ensure that a child enrolling in school meets the legal age requirements, resides in the school district and has had immunization shots. Determining whether a child resides legally in the United States is not a drastic departure from these other functions.

The threat of loss of federal education funds, on close examination, is a hollow one. Exceptions appear under 20 U.S.C. 1232g, which sets privacy codes for educational records. Sec. 1232g(a)(8)(h) provides that the term "educational records" does not include "records maintained by a law enforcement unit of educational agency or institution that were created by the law enforcement unit for the purpose of law enforcement." In other words, this exclusion permits California schools to set up a separate "law enforcement unit" on the immigration-related eligibility of enrolling students.

There are more practical, political reasons that federal funds would not be withheld, even if Proposition 187 passes. First of all, California's 54-member congressional delegation would never let it happen. Secondly, President Clinton is not crazy: He is not about to pick a $15 billion fight with a state he absolutely must win if he has any hope of being re-elected.

The other controversial aspect of Proposition 187 is the denial of non-emergency medical benefits to illegal aliens. According to the California Department of Health, this year's Medi-Cal bill for illegal immigrants is likely to surpass the $1 billion mark. Amid a national debate on health care reform and the revelation that some 37 million Americans do not have basic coverage, placing limits on access to non-essential public health care by illegal immigrants does not seem unreasonable, nor would it be a violation of the equal protection clause of the 14 Amendment.

Gov. Pete Wilson, who supports Proposition 187, has stated that health care professionals would be given wide latitude in determining where the line between essential and non-essential treatment should be drawn. The governor told the editorial board of the San Francisco Chronicle that if, in the professional opinion of doctors, "there is any threat of communicable diseases" being spread, it would be up to local officials to decide whether to extend care. Emergency medical care would remain available.

The remaining provision of Proposition 187 merely re-emphasizes existing laws and policies. It states that illegal alien may not receive benefits to which they are not entitled, requires greater cooperation between local law enforcement agencies and federal immigration enforcement authorities and increases the penalties for the manufacture and sale of fraudulent documents.

Regardless of the outcome of the vote, Proposition 187's greatest legacy will be that it has focused national attention on a serious problem that the federal government has been ignoring for two decades. Come January, the ball will be back in Congress' court, where it belongs. The new Congress (and an administration gearing up for a re-election bid) will have to control illegal immigration or face a national revolt by taxpayers who simply refuse to sign their names to a blank check.

Mr. Stein is executive director of Washington, D.C.'s Federation for American Immigration Reform.