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Proposition 187: by Kevin R. Johnson
Research Report No. 15 June 1996
About the Author Kevin R. Johnson is Professor of Law, Univeristy of California, Davis. A.B. 1980, University of California, Berkeley; J.D. 1983, Harvard University
SUGGESTED CITATION Johnson, Kevin R. (Professor of Law) Proposition 187: The Nativist Campaign, the Impact on the Latino Community, and the Future, JSIR Research Report #15, The Julian Samora Research Institute, Michigan State University, East Lansing, Michigan, 1996.
Related Readings of JSRI Book: Rochin, Refugio I. (ed.). Immigration and Ethnic Communities: A Focus on Latinos. Julian Samora Research Institute, Michigan State Univeristy, East Lansing, Michigan, 1996 Table Of Contents
The topic of my presentation certainly has been in the spotlight over the last year. California's Proposition 187 was an initiative passed by the voters by a 59-41% margin. If implemented, the initiative would bar state and local governments in California from providing non-emergency health care and social services and public education to undocumented immigrants. It would further require California law enforcement, health and social service agencies, and public school officials to report persons suspected of being undocumented to the Immigration and Naturalization Service. There was much media hoopla surrounding the Proposition 187 campaign in the fall of 1994. The initiative received national attention. The true test of this was that the New York Times ran an editorial on the subject. Even a couple of prominent national Republicans, Jack Kemp and Bill Bennett, publicly announced their opposition to the measure. This national concern was justified. Many voters in California desired to "send a message" to the federal government. There apparently was a desire to get the federal government to deal with illegal immigration. Events in Congress over the last few weeks demonstrate that this message has had an impact. I will attempt to analyze three discrete aspects of Proposition 187 in this report: (1) the racial undercurrent to the campaign; (2) the disparate impact that the measure may have on certain immigrant communities; and (3) the legal challenges to Proposition 187 that in all likelihood will ultimately be addressed by the United States Supreme Court. I. Introduction | II. Proposition 187: Its Genesis, Historical Antecedents, and the Campaign | III. The Effects of Proposition 187 | IV. The Litigation | Conclusion II. Proposition 187: Its Genesis, Historical Antecedents, and the Campaign The provisions of Proposition 187 are complex, confusing, and sometimes indecipherable. In part, this results from the fact that the initiative was drafted by committee. Political debate, as often is the case, was on an abstract plane with little time spent on the details of the measure. In the debate of Proposition 187, the details of its provisions frequently were overlooked. Surprisingly enough, as the campaign wore on, the specific provisions of the initiative were discussed less and less. Rather, the Proposition 187 campaign became more a debate about illegal immigration. One theme endorsed by initiative proponents was that passage of Proposition 187 would "send a message" to the federal government that it must address illegal immigration. A counter-theme often raised by opponents, particularly ethnic activist and immigration groups, was that Proposition 187 was racist. Such claims have not been raised only by minorities. Indeed, the President of the American Bar Association and Jack Kemp and Bill Bennett made similar claims. I am not willing to state categorically that Prop 187 is or is not racist. Many factors in combination unquestionably led to passage of Proposition 187, including
In analyzing these questions from a legal prospective, something struck me as curious. As I mentioned, one of the most vociferous, and serious, contentions made by Proposition 187 opponents in the heated campaign was that the measure is racist. This often is a damning claim in our legal culture. For a variety of reasons, however, including the difficulties of proving claims of discrimination under the law, the numerous lawsuits challenging Proposition 187 do not squarely raise the issue. Indeed, a court of law in all likelihood never will address the issue that immediately jumps into the mind of many who condemn the initiative. Only in the court of history will it be decided whether Proposition 187 was passed for invidious reasons and thus whether it is properly classified as racist.
A. Historical Precedents for Proposition 187 There are historical antecedents for Proposition 187 in the state of California. Here are a couple of examples. 1. Chinese Immigration It is well-known that California was a hotbed of anti-Chinese sentiment in the late 1800s. For example, in 1879, the California voters addressed the question of Chinese immigration on an advisory ballot measure. The results were 883 "For Chinese immigration" and 154,638 "Against Chinese immigration." California Governor George C. Perkins explained the need for the vote on the measure:
Governor Perkins denied that race influenced the vote. 2. The Alien Land Laws Perhaps the most well-known anti-alien measures were the alien land laws. California, as well as a number of other Western states, earlier this century enacted laws that barred the ownership of certain real property by noncitizens ineligible for citizenship. Although the history and the context make it clear that the measures were directed at the Japanese, one of the groups of Asian immigrants ineligible for citizenship at this time, the Supreme Court refused to intervene. A blatantly anti-Japanese campaign was waged in support of the alien land law passed by initiative in California. Justice Murphy of the United States Supreme Court described its essence:
B. Racial Undertones to the Proposition 187 Campaign The Proposition 187 campaign bore striking similarities to the campaign culminating in the passage of the alien land laws in California. I recognize, however, that the question whether Proposition 187 might properly be classified as "racist" is deeply complicated. Part of the pro-187 support may have been directed at the perceived fiscal and consequences of undocumented immigration. Still, at least some voters were unabashedly anti-Mexican, regardless of the immigration status of the individuals. It is difficult to contend that ethnicity of the stereotypical illegal immigrant at issue did not play at least some role in the passage of Proposition 187. 1. The Drafters of the Initiative Governor Pete Wilson, in seeking re-election, capitalized on the public dissatisfaction with immigration by supporting Proposition 187. Some of his television advertisements emphasizing his unqualified support for the initiative showed shadowy Mexicans crossing the border in large numbers. As the initiative's "Save Our State" moniker suggests, frequent claims were made that undocumented citizens were responsible for California's fiscal and other woes. The fact that Proposition 187 placed in jeopardy federal funding of $15 billion, which greatly outweighed any potential savings, was virtually ignored in the campaign, a fact suggesting that other factors besides a desire to save money were at work. One of the initiative sponsors baldly asserted that "`[i]llegal aliens are killing us in California . . . . Those who support illegal immigration are, in effect, anti-American.'" One of the pro-187 arguments in the voters' pamphlet suggests the deeply negative feelings about immigration and immigrants: "Proposition 187 will be the first giant stride in ultimately ending the ILLEGAL ALIEN invasion." The Proposition 187 media director for southern California expressed similar concerns in a letter printed by the New York Times: Proposition 187 is . . . a logical step toward saving California from economic ruin. . . . By flooding the state with 2 million illegal aliens to date, and increasing that figure each of the following 10 years, Mexicans in California would number 15 million to 20 million by 2004. During those 10 years about 5 million to 8 million Californians would have emigrated to other states. If these trends continued, a Mexico-controlled California could vote to establish Spanish as the sole language of California, 10 million more English-speaking Californians could flee, and there could be a statewide vote to leave the Union and annex California to Mexico. Consider the positions of the committee of persons who drafted Proposition 187. a. Ron Prince Prince's anti-immigrant animus apparently grew out of a business dispute with a legal immigrant whom Prince alleged was an "illegal." Prince conjured up disturbing imagery from another era in advocating passage of 187: "[y]ou are the posse . . . and SOS [Prop 187] is the rope." b. Harold Ezell Well before the advent of Proposition 187, Harold Ezell, Western Regional Commissioner of the Immigration and Naturalization Service in the 1980s, was infamous for comments made about "illegal aliens" -- that they should be "caught, skinned and fried." Senator Dennis DeConcini reportedly complained to Ezell's superior, Alan Nelson, that Ezell used the term "`wets,'" apparently a shortened version of the pejorative term "wetbacks," to refer to undocumented immigrants seeking to cross the Rio Grande. During the campaign, Ezell mentioned that support for Proposition 187 was great because "`[t]he people are tired of watching their state run wild and become a third world country.'" c. Barbara Coe The public statements of one drafter of Proposition 187, Barbara Coe, are worthy of special attention. Coe has contended that undocumented immigrants "are endangering, not only our financial system, but they repeatedly illustrate that they hold, not only our laws, . . . but our language, our culture, and our very history in contempt . . . ." She has expressed fear of the "`militant arm of the pro-illegal activists, who have vowed to take over first California, then the Western states and then the rest of the nation.'"
In an op/ed piece in USA Today, Coe complained of bilingual education and emphasized that "[v]iolent crime is rampant. . . . Illegal-alien gangs roam our streets, dealing drugs and searching for innocent victims to rob, rape and, in many cases, murder those who dare violate their `turf' .. . . . [N]early 90% of all illicit drugs are brought here by illegals . . . ." Consistent with that view, one of the immigration organizations with which Coe heads, placed the following ad in the National Review:
2. Election Results The landslide victory of Proposition 187 was somewhat of a surprise. Polls near the time of the election showed that the race was a dead-heat and that the initiative might well fail. Political scientists have observed that polls are often inaccurate in racially polarized elections. White voters often will lie to pollsters to avoid being labeled as racist. Exit polls suggest that the vote on Proposition 187 was polarized along racial lines. According to the exit polls, the breakdown was as follows: white -- 63-37 Latino -- 23-77 African-American -- 47-53 Asian-American -- 47-53 In addition, though the evidence is somewhat conflicting, the most racially mixed counties in California tended to be anti-187 (e.g., San Francisco and Alameda counties) while the least mixed tended to be the most heavily in favor of the measure.
C. A "Motivating Factor": Immigrants from Mexico Similar to the alien land laws, it is clear that Proposition 187, though facially neutral, was directed at undocumented immigrants from a certain country. Although there are many other undocumented persons in the United States other than Mexicans, this never figured prominently in the debate over the initiative. Moreover, Proposition 187 unquestionably will have -- and its passage has had -- impacts on discrete ethnic communities. Undocumented Mexicans, Mexican-American citizens, and citizens of other minority groups viewed as foreign, including Asian-Americans, are the groups most likely to feel the sting of Proposition 187. Not surprisingly, these are the groups that voiced the strongest opposition to 187 in the campaign. I. Introduction | II. Proposition 187: Its Genesis, Historical Antecedents, and the Campaign | III. The Effects of Proposition 187 | IV. The Litigation | Conclusion III. The Effects of Proposition 187 Before analyzing the potential effects on Proposition 187, consider some of its provisions.
A. Some Nuts-and-Bolts Proposition 187 was designed to restrict the public benefits and services available to undocumented immigrants. As previously discussed, the arguments in favor of the measure in the voters pamphlet reveal the much deeper negative feelings that it reflected about immigration and immigrants. Generalized dissatisfaction with immigration is expressed in Section 1 of the initiative, which states that the people of California, among other things, declare
Proposition 187 would require state and local law enforcement officers to "[a]ttempt to verify the legal status" of every person "arrested, and suspected of being" in the United States in violation of the immigration laws and to notify the INS of the person's apparent illegal status. Proposition 187 also would require public health and social service providers to verify that a potential recipient is a U.S. citizen or otherwise lawfully in the country. If the agency "reasonably suspects . . . that the person is" unlawfully in the country, it cannot provide benefits or services to that person and must notify the Immigration and Naturalization Service. The details of the education provisions of Proposition 187 deserve careful attention. Section 7 states categorically that "[n]o public elementary or secondary school shall admit, or permit the attendance of, any child who is not a citizen of the United States" or in the country unlawfully. Keep in mind that this is harsher than the Texas law at issue in the Supreme Court case of Plyler v. Doe, which would have allowed undocumented children at least to pay tuition. Proposition 187 would require each school district to verify the immigration status of each student attending school as well as the immigration status of each parent or guardian. Again, this goes further than the Texas law at issue in Plyler. As with Proposition 187's other provisions, a suspected undocumented parent must be reported to the INS. The result may be that an undocumented parent may not send his or her citizen child to school because of a fear of deportation. The initiative's prohibition of the education of undocumented children direct conflicts with the Supreme Court's decision in Plyler v. Doe. Plyler relied upon the equal protection clause of the Fourteenth Amendment to invalidate a Texas statute that authorized school districts to deny public school enrollment to undocumented children. Proponents of Proposition 187 voiced hopes that its passage would force the Supreme Court to revisit Plyler v. Doe. In some ways, the measure is the culmination of years of efforts to close the public schools in California to undocumented children. Costs of providing education mandated by the U.S. Constitution, which were borne for the most part by the states, added fuel to the fire. In Governor Wilson's words, "`[w]e cannot educate every child from here to Tierra del Fuego.'" Whether Plyler v. Doe was correctly decided is something that constitutional law professors have debated. It nonetheless is critical to recall that, although the Supreme Court was sharply divided on the difficult constitutional question, it was unanimous about the lack of wisdom of the Texas law. The five-Justice majority emphasized that the law might well create "a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents." The Court recognized that children should not be punished because their parents had broken the immigration laws and emphasized that it was "difficult to conceive of a rational justification for penalizing these children for their presence in the United States." Justice Powell concurred, emphasizing that even if denied an education some undocumented children would remain in the United States, "adding to the problems and costs of both State and National Governments [due to] unemployment, welfare, and crime." Though rejecting the majority's constitutional arguments, Chief Justice Burger's dissent characterized the Texas law as "senseless" and "folly."
B. Proposition 187: Immigration Status, Ethnicity, Class and Gender Consider the impacts of Proposition 187, if it is ever implemented. An important aspect of Proposition 187 is that its costs might well outweigh any benefits. California's nonpartisan Legislative Analyst projected that annual savings of benefits and services provided to undocumented persons might be as great as $1.2 billion for education and $200 million in benefits and services. However, the potential costs overwhelmed those savings. More significantly, the Legislative Analyst estimated that, if implemented, the state stood to lose as much as $15 billion in federal funding each year. Needless to say, a potential loss of $15 billion is substantial, particularly when the state is in the throes of a long-running and severe budget crisis. The fact that the potential savings promised by Proposition 187 were dwarfed by the potential costs suggests that factors other than simply economic ones influenced the political support for the measure. Although the California Ballot Pamphlet distributed to registered voters included the Legislative Analyst's cost/benefit analysis, and opponents in the election campaign attempted to highlight the potential fiscal downside, this argument never touched the hearts and minds of the electorate. Rather, the issue was transformed into one about the propriety of illegal immigration. Now consider what may be at the heart of the matter. Proposition 187 obviously focused on the immigration status of the recipients of public benefits and services. It sought to discriminate against "illegal aliens." It, however, disparately affects those of particular ethnicities, classes, and women. The impact on particular ethnic communities are the clearest. One might logically ask which communities are likely to bear the burdens associated with the efforts of state and local agencies to uncover undocumented persons. It is inevitable that Latino and Asian citizens and immigrants, as well as other groups with characteristics perceived to be "foreign," are the most likely to suffer the direct impact. As a lobbyist for the California Organization of Police and Sheriffs observed about the law enforcement provisions or Proposition 187:
Concerns over discriminatory enforcement are heightened by the fact that Proposition 187 completely lacks any explanation of how its verification requirements are to be implemented. While ethnic minorities voiced concern with the spillover effects of the measure on minority citizens, other potential impacts went largely unnoticed. As with other benefit programs, poor immigrants will be affected disparately if Proposition 187's provisions go into effect. Women will as well. Indeed, women, often primary child-care providers in a household, are the most directly affected by reductions in public benefits. Prenatal care and battered women services is a clear example. Education may be a less obvious one. If undocumented children are barred from the schools, their mothers, many of whom are responsible for child care, will be disparately impacted. Consequently, Proposition 187 might be attacked as anti-poor and anti-women as well as anti-immigrant and anti-Mexican. I. Introduction | II. Proposition 187: Its Genesis, Historical Antecedents, and the Campaign | III. The Effects of Proposition 187 | IV. The Litigation | Conclusion The day after its passage, immigrants' rights advocates brought many actions challenging the legality or Proposition 187. The many lawsuits have been combined into two consolidated lawsuits. One suit, which relates primarily to the education provisions of Proposition 187, is in California state court. The other suit, which more generally challenges the various provisions of Proposition 187, is in federal court in Los Angeles. The district court in Los Angeles last fall entered a permanent injunction barring implementation of most of Proposition 187. In large part, the court relied on what constitutional law scholars call a federal supremacy argument: that the federal government had the exclusive authority to regulate immigration and that many of the provisions of Proposition 187, a state law, impermissibly encroached on that power. The State of California will soon be appealing that decision. Ultimately, the matter probably will be decided by the United States Supreme Court. The final outcome, at least in my view, is highly uncertain. There is one issue of importance to the Latino community that is for the most part absent from this litigation. As I mentioned before, a number of Proposition 187 opponents claimed that the measure was racist. Racial discrimination generally is unconstitutional under the Fourteenth Amendment, which guarantees all persons equal protection under the laws. A challenge to Proposition 187 on equal protection grounds might claim that, though facially neutral, it will have a discriminatory impact on immigrants and citizens of particular ethnicities and national origin groups. As we have seen, a fair amount of evidence could be adduced to support this position. However, a major obstacle to any such claim would be a series of Supreme Court decisions. The Court has made it clear that the showing of a racially disproportionate impact alone is insufficient to establish that a facially neutral law violates the equal protection clause. Rather, even for legislation adopted through initiative, the aggrieved party must establish that the law was passed with a discriminatory intent. Proving such "intent" is very difficult. Intent analysis raises a variety of problems that are especially acute in evaluating lawmaking by initiative. Obviously, the larger the institution making the challenged decision, the more difficult it is to establish an invidious intent. The difficulties of establishing a discriminatory intent are most extreme when the electorate of thousands, perhaps hundreds of thousands, of voters made an allegedly discriminatory decision. It is important to note that about 8.5 million votes were cast on Proposition 187. Even if a significant portion of the electorate voted for the challenged measure for invidious reasons, it is next to impossible to establish the true intent of such a diffuse decisionmaking body. To avoid engaging in an inquiry into the electorate's intent, lower courts have emphasized the sanctity of the secret ballot and have been reluctant to invalidate an initiative even if it appeared that at least part of the electorate had a discriminatory purpose in voting for the law. Such an approach makes the invalidation of an initiative likely only if discriminatory on its face. In effect, voters therefore may freely rely on invidious motives in supporting measures that have a disproportionate impact on discrete and insular minorities. This obviously poses a clear threat to minority interests in the initiative process. Individual voters are much less likely than lawmakers and policymakers to be held accountable for discriminatory decisions. Because basing a law on blatantly racist motives generally is not fashionable or legally permissible, representative bodies at least at some level tend to moderate discriminatory sentiment. Perhaps all of these factors help explain why the potentially explosive issues of race and class are more likely to be addressed by the electorate than by legislative bodies. Put simply, the initiative process may permit the adoption of laws with discriminatory impact by a politically unaccountable electorate that a legislature would be less likely to accomplish. Because of the discriminatory intent requirement, such a decision is less likely to be successfully challenged than that of an elected body. To make matters more complex, alienage classifications, though presumptively lawful, may veil an invidious purpose to discriminate against certain ethnicities, which would presumptively be invalid. A link exists between national origin and immigration status in the United States. Indeed, the link has become more pronounced in recent years with increasing immigration from developing nations. A recurring problem that may grow exponentially in the future will be determining when facially neutral immigration restrictions, such as reduction of benefits to lawful permanent residents, masks an invidious purpose to discriminate against certain national origin groups. This is the precise problem raised by Proposition 187 and by the alien land laws earlier in the century. I. Introduction | II. Proposition 187: Its Genesis, Historical Antecedents, and the Campaign | III. The Effects of Proposition 187 | IV. The Litigation | Conclusion The campaign culminating in the passage of Proposition 187 in California contained an anti-Mexican tilt that threatened the Latino community. If the measure is implemented, the Latino community stands to be disparately affected. Because the result of many legal challenges are highly uncertain, Latinos would do well to consider political strategies to avoid the enactment of laws like Proposition 187 in the future. I. Introduction | II. Proposition 187: Its Genesis, Historical Antecedents, and the Campaign | III. The Effects of Proposition 187 | IV. The Litigation | Conclusion |
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