Immigration and education legislation and its effects on policies relating to undocumented immigrant children

MISSING IMAGE

Material Information

Title:
Immigration and education legislation and its effects on policies relating to undocumented immigrant children
Physical Description:
x, 207 leaves : ill. ; 29 cm.
Language:
English
Creator:
Raska, Rose Alvine
Publication Date:

Subjects

Subjects / Keywords:
Educational Leadership, Policy, and Foundations thesis, Ph.D   ( lcsh )
Dissertations, Academic -- Educational Leadership, Policy, and Foundations -- UF   ( lcsh )
Genre:
bibliography   ( marcgt )
theses   ( marcgt )
non-fiction   ( marcgt )

Notes

Thesis:
Thesis (Ph.D.)--University of Florida, 2000.
Bibliography:
Includes bibliographical references (leaves 196-206).
Statement of Responsibility:
by Rose Alvine Raska.
General Note:
Printout.
General Note:
Vita.

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
aleph - 024901963
oclc - 45640900
System ID:
AA00017699:00001

Full Text






IMMIGRATION AND EDUCATION LEGISLATION AND ITS EFFECTS ON POLICIES RELATING TO
UNDOCUMENTED IMMIGRANT CHILDREN

















By

ROSE ALVINE RASKA
















A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE
UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE
REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2000















DEDICATED TO:

Germaine G. Bourque Raska (1915-1991), my most wonderful Mother,
without whose spirit, inspiration and belief in me,
I would not have attempted such a monumental task.








































ii















ACKNOWLEDGMENTS

Without the support and assistance of certain individuals this research would not have been possible. I greatly appreciate the encouragement and guidance of my chair, Dr. David S. Honeyman, who gave me the drive and tenacity to complete this project. My appreciation again goes to Dr. M. David Miller, Dr. Walter L. Smith and Dr. Lee J. Mullally, my supervisory committee members. I would also like to thank Dr. R. Craig Wood.

Special thanks go to Bettie Hogle, Director of Applied Technology, Seminole County Public Schools, for her counsel and support through out this project. I am especially grateful to Dr. Michael James Murray, Winona State University, for his encouragement and belief in my abilities.

Most importantly, I must acknowledge my deceased mother, Germaine B. Raska, who knew that I could and would achieve this goal.




















iii
















TABLE OF CONTENTS



ACKNOW LEDGM ENTS ......................................................................................... ... iii

LIST OF TABLES ........................................................................................................... vii

LIST OF FIGURES.......................................................................................................... viii

ABSTRACT ................................................. ................................................................ ix

CHAPTERS

1 INTRODUCTION ................................................................................................... 1I

Purpose of the Study ........................... ................................................ 2
Significance of the Research ....................................................................................... 3
Statem ent of the Problem ............................................................................................ 3
History. ................................................................. 4
Historical Im m igration Legislation. ...................................... 5
Im m igration Policy................................................................................................. 9
Im m igration Statistics .............................................................. ............................. 10
Illegal Im m igration...................................................................................................... 11
Im m igrant Education ........................................... .................................................. 14
Societal Im pact............................................................................................................ 17
Fiscal Responsibilites ................................................................................................. 21
Research Question ....................................................................................................... 25
M ethodology ..................................................................................................................... 25
Definition of Term s ................................................................................................... 26
Lim itations ........................................................................................................................ 27
Design of the Study .............................................. ....................................................... 27
Organization of the Chapters...................................................................................... 28

2 HISTORICAL REVIEW OF IMMIGRATON LEGISLATION ............................. 29

Introduction ................................................. 29
Im m igration Legislation ...................................................................... ............................ 29
Am erican Im m igration Before 1920 ..................................... .... .............. 32
Im m igration Policy After 1920 ...................................... 34
The 1952 Im m igration Act .......................................................... ........................... 38



iv










The 1965 Im m igration Act.......................................................................................40
Im m igration Policy After 1965 .......................................................................... 42
Educating Illegal Im m igrant Children............................................................ 44
Sum m ary ..... ...................................................................................................... 59

3 IMMIGRATION LAWS AND PROPOSITION 187 .................................... .... 61

Introduction .................................................................................................... ............. 61
Background ................................................................................................ 61
Im m igration Laws ..................... .................................................................................. 66
Illegal Aliens ..................................................................................................................... 69
Proposition 187 .................... ....................................................................................... 74
Constitutional V iolations ......................................................................................... 77
Conflict with Federal Laws ...................................................................................... 80
Due Process ....................................................................................... 82
Im m igration and Education ............................................................................................ 84
Florida Im m igration and Education ................................................................ 90
Sum m ary .... ...................................................................................................... 97

4 FINANCIAL AND ETHICAL CONSIDERATIONS ....................................... 99

Introduction ... .................................................................................................... 99
Legal Basis for States' Responsibilities .................................................................. ... 99
Education Finance ..................................................... ................................................ 103
Florida Education Finance ..................................................................................... 108
Population D ata ................................................ .......................................... .......... ..... 111
Educational Rights of Undocumented Immigrant Students ..................................... ... 113
Im m igrant Students ................................................................................................ 116
Ethics and the Dem ocracy of Education ....................................................................... 119
Educating A ll Children........................................................................................... 122
Sum m ary .... ..................................................................................................... 126

5 IMMIGRATION EDUCATION POLICY INCLUSIONS FOR THE STATE
OF FLORID A ..................................................... ................................................ 127

Introduction .................................................................................................... 127
The Right to Learn ..................................................... ............................................... 127
Distinctions ....................................... 128
Im m igration Facts ..................................................... ................................................ 128
Federal Policies and Laws........................................ ................................................. 129
Florida Legislation ........................................ 133
Florida School Laws......................................... ................................................... 134
Florida's Education Strategic Priorities ..................................... 136
Policy Enhancem ents ........................................ 137
Sum m ary ......................................................................................................................... 143



V












APPEN D IX ..................................................................................................................... 146

LIST O F REFEREN CES ................................................................................................ 196

LEG A L REFEREN CES ......................................... ........................................ 203

BIO G R A PH ICA L SK ETCH ........................................................................................ 207















































VI















LIST OF TABLES

Table page

1-1 Estimated Illegal Immigrant Population for Top Twenty Countries of Origin and
Top Twenty States of Residence: October 1996 ............................. .. .. 13

2-1 Timeline of U.S. Immigration and Alien Education Policies ................................ 57

3-1 Immigration to the U.S. in 1992.................................................................... 69

4-1 Florida EIEP Student Funding (100% Federal Funding) .................................... 108

4-2 Im m igration and Florida.......................................................................................... 111


































vii














LIST OF FIGURES

Figure ae

1-1 School-Age Immigrant Population ........................................................... 15

2-1 U.S. Foreign-Born Population. ............................................................ 43

3-1 Top Ten States Where Illegal Aliens Reside ............................................ 72

4-1 Estimated Undocumented Immigrant Population in Florida in 1993
by Country of Origin Here is a figure. ..................................... 112


































viii















Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy IMMIGRATION AND EDUCATION LEGISLATION AND ITS EFFECTS ON POLICIES RELATING TO UNDOCUMENTED IMMIGRANT CHILDREN By

ROSE ALVINE RASKA

August 2000


Chairman: David S. Honeyman
Major Department: Educational Leadership, Policy, and Foundations The need for an effective public policy regarding the education and assimilation of illegal immigrant children had become the topic of many discussions. Beginning with the Plyler decision in Texas in 1982, California's Proposition 187 and the Gallegly amendment in 1996, attempts were made to legislate such policy. Florida had the fourth largest percentage of illegal immigrant population in the United States. Along with that, the fourth largest number of illegal immigrant children, which we had a moral, if not legal, obligation to educate. Educating immigrant children to the ways of our society, along with English and mathematics, provided long-term benefits in terms of both successful citizenship and cost effectiveness. States needed to develop immigrant education policies that provided equitable opportunities for all children. Much research had been done on






ix









the societal and fiscal effects of illegal immigration as a whole, but little addressed the education aspect and its costs or consequences.

The purpose of this study was to analyze the history of immigration policy and subsequent court cases that had influenced the treatment of undocumented immigrant children. In addition, to analyze the existing legal basis for educating undocumented immigrant children through the examination of federal and state legislation, attorney general opinions, state statutes, and district school board policies. The desired outcome was to suggest recommendations for policy inclusions for educating illegal immigrant K-12 students.

Policy components for effective immigrant education needed to include: 1) Immigrant student inclusion in all school and district assessments; 2) staff development training in the understanding of the special needs of immigrant children; 3) development of additional instructional materials for immigrant children; 4) assessment instruments in languages other than English and Spanish; 5) increased school counseling services for immigrant children; 6) increased immigrant parent involvement in overall school programs; 7) Inclusion of limited English proficient children in school-wide programs; and 8) a determination of what investments the public was willing to make to ensure the education and future economic success of immigrant children.













x















CHAPTER 1
INTRODUCTION


This examination of the history of immigration and education legislation in the United States reveals the change process that law and policy underwent through the years. It takes into account both, immigration to the United States and the immigrants themselves. Immigration policies were made at the federal level and addressed broad issues such as quotas and enforcement of immigrant parameters. Immigrant policies, on the other hand, were made at the state level and focused on immigrants already residing in the United States. Immigrant policy makers dealt with how to integrate immigrants into the American population and assist them with public benefits during the transition.'

As a nation whose ancestors were all immigrants, much of historical U.S. foreign policy invited foreigners into the country. When immigrant limits and control of U.S. borders became an issue, so did educating the legal and illegal immigrant student population. Laws were passed to control immigration and those who broke the laws in order to enter the U.S. became illegal immigrants. Through no fault of their own, their children were in a country where they were not official residents and needed to be educated.





1Rocio Del Sagrario Toriz , "Federal and State Responsibility for Undocumented Immigration," Berkeley McNair Journal Three, no. Summer 1995 (1995) .


1






2

Each time an immigration law or policy was implemented, the education system was affected. It was believed that had the federal government enforced immigration policy, the states would have not suffered the financial burden incurred from educating the children of immigrants, both legal and illegal.

National estimates of growth in the immigrant student population projected a

increase of more than 20 percent, from 34 million in 1990 to 42 million in 2010. It was estimated that more than half of that growth would be attributed to children of immigrants. Proportional changes in Florida's school-age population mirrored or exceeded those occurring in the state's general population. Although in 1990, Hispanics were 12 percent of the total school-age population, by 1996 they had grown to 16 percent. 2 School-age children came from all over the world with a high concentration coming from Hispanic countries.


Purpose Of The Study

The purpose of this study was to analyze the history of immigration policy and subsequent court cases that have influenced the treatment of undocumented immigrant children. In addition, to analyze the existing legal basis for educating undocumented immigrant children through the examination of federal and state legislation, attorney general opinions, state statutes, and district school board policies. The desired outcome was to suggest recommendations for policy enhancements for educating illegal immigrant K-12 students in the state of Florida.





2 Martha J. Miller (1997). Student Enrollment Figures by Ethnicity and Race. Tallahassee, Fl: Strategy Planning Department, Florida Department of Education.








Significance of the Research

Florida school districts were required to follow federal regulations and Supreme Court guidelines in school admission requirements. Due to the sheer numbers of undocumented immigrant students who resided in and continually entered the state, there was a need for a precedent policy. This research proposed to analyze the historical position of litigation concerning illegal immigration and the education of immigrant children. This study was significant as an attempt to recommend policy inclusions for the state of Florida on the education of the children of undocumented immigrants.


Statement Of The Problem

Since the 1982 Supreme Court decision in Plyler,3 which required free elementary and secondary education for all children residing within a given state, the numbers of immigrants both legal and illegal arriving in the state of Florida increased. An assessment of the cost of providing special educational programming, along with meeting equity provisions and equality concerns was essential.

With the increase of undocumented immigrant students in mind, the question of the necessity for an illegal immigrant education policy for the state of Florida and the ethical reasoning behind the education of the undocumented student was of interest. A review of some American beliefs on education during the early twentieth century was included.







3 Plyler v. Doe, 457 US 202 (1982).






4

History

Opposition to the entry of foreign paupers and aliens "likely at any time to become a public charge" dates from Colonial times.4 The colony of Massachusetts enacted legislation in 1645 prohibiting the entry of paupers and in 1700 excluding the infirm unless security was given against their becoming public charges. From these beginnings, the United States continued to enact legislation designed to regulate the number of immigrants based on the countries of origin. In so doing, and by not enforcing the legislation, controlling the borders, or monitoring the illegal immigrant population, the United States created an enormous influx of "strangers-in-need". There was a call for legislative policy to regulate not only numbers of immigrants, but also to see if and how the immigrants who were here would be eligible for public services. Educating the children of all immigrants, legal and illegal, became costly for some states due to federal legislation. Federal policy was needed to assist and support these states in following its mandates. States, such as Florida, with the highest immigrant populations, needed an effective policy regarding the education and inclusion of immigrant children.


Historical Immigration Legislation

The United States did not have an immigration policy per se for most of the nineteenth century. A bar against the landing of "any person unable to take care of himself or herself without becoming a public charge" was included in the first general federal immigration law, the Chinese Exclusion Act of August 3, 1882,5 which


4 U.S. House of Representatives Ways and Means Committee Print: 104-12 [Green Book] "Appendix J. Noncitizens" The Personal Responsibility and Work Opportunity Reconciliation Act and Associated Legislation, 1996, (25 February 1997).
5 Chinese Exclusion Act, ch.126, 22 Stat.58, 1882 (formerly codified in scattered parts of 8 U.S.C. ch.7).





5

established broad legal limits to immigration by excluding Asian immigration. The 1882 law also solidified the primacy of the federal government to determine immigration law and policy.6 This prohibition was carried forward in the Immigration Act of 1917, and was recodified in the Immigration and Nationality Act both when it was enacted on June 27, 1952 and again in 1990.7

The controversy over illegal immigration began in 1875 when the U.S.

established its first law restricting immigration, which prohibited the entrance of convicts and prostitutes. Since that time, the U.S. struggled to control its borders. Every year thousands more found passage in, adding to the already five million immigrants who had entered the country illegally or overstayed their visas.8

From 1880 to 1920, 23,465,000 people immigrated to the United States; the great majority of these immigrants were from southern and eastern Europe.9 Public agitation grew steadily during this period to limit further immigration, despite the opposition of business interests.'o





6 Federal power over immigration lies in the United States Constitution: "'To establish an uniform Rule of Naturalization," U.S. Constitution Art. I, 8, cl. 4.
7U.S. House of representatives Ways And Means Committee Print: 104-14 [1996 Green Book] "Appendix J. Noncitizens" The Personal Responsibility and Work Opportunity Reconciliation Act and Associated Legislation, 1996, (25 February 1997).
9 Kathleen Vail, "No Entry", The American School Board Journal 183, no. 9 (September/96 1996): 22-25. 9 Marion T. Bennett. American Immigration Policies: A History, 15 (1963) quoted in Gregg Van De Mark, "Too Much of a Good Thing," Washington Law Journal 35, no. 3 (Spring 1996). 'o The main concerns of those pushing for immigration controls were the assimilability of the new immigrants, their sheer numbers, and their effect on the nation's politics, language, and culture. Thomas A. Alienkoff and David Martin, Immigration: Process and Policy, pp. 1-42 (interim 2d ed. 1991) quoted in Van De Mark, Washington Law Journal 35.






6


The Quota Act of May 19, 1921" created a National Origins plan under which each country had an immigration quota in proportion to that nation's past contribution to the population of the United States. The Act based the quotas on the 1910 Census of Population and allowed 357,000 immigrants into the United States each year.'2

The 1924 Immigration Act used the 1890 census of different ethnic groups in the United States as a basis for establishing a national origins quota for emigrant-sending nations."3 A basic idea reflected in the 1924 Act was the fear that heavy immigration from southern and eastern Europe discriminated against current residents of the United States (largely descended from northern and western Europeans) by diluting the ability of current residents to determine the nation's destiny. The 1924 Act maintained the 1921 exemption for the independent countries of the Western Hemisphere from any quotas.'4 The 1890 census served as an interim provision until Congress established the final national origins system in 1929.'5 Thereafter, Congress set the national origins quota at one-sixth of one percent of the 1920 population to arrive at a base immigration figure of 153,714.16 The 1920's legislation effectively stopped large-scale immigration to the United States for forty years.

Confidence in American institutions, the realities of World War II alliances, and post-war foreign affairs combined to challenge the basis of America's immigration Quota Act, ch.8, 42 Stat. 5 (1921) (formerly codified at 8 U.S.C. 229-31). 12 Ibid.
'3 The Immigration Act of 1924, ch. 190, 43 Stat. 153 (1924) (formerly codified at 8 U.S.C. 201-204). 14 Bennett, American Immigration Policies, p 47.
15 Act of July 1, 1929, ch. 306, 45 Stat. 400 (formerly codified at 8 U.S.C. 204c). 16 Ibid.






7


policy."7 Congress liberalized Asian immigration during and shortly after World War II.18 On June 27, 1952, the McCarran-Walter Act19 effectively altered the immigration policy of the United States by removing racial bias from the setting of national origin quotas, since particular immigrants could not be excluded on account of race. The 1952 Act retained the 1920 quota base.20 Senator McCarran maintained that the nation had always been besieged by immigrants and that ending the national origins system would cause further conflict in an ethnically altered United States.2' McCarran wanted to end racial discrimination in immigration admissions, but he felt that the United States could best serve its mission in the world by remaining true to its culture and by assimilating non-Europeans very slowly.22 The justifications of cultural unity, which had so concerned Congress, never dominated immigration debates after 1952.

The confidence and determination to confront America's history of racism

continued with renewed fervor during the decade of the 1960s. Congress passed such







17 Gregg Van De Mark, Too Much ofa Good Thing, Washburn Law Journal 35, no. 3 (Spring 1996) . 18 Congress repealed the Chinese Exclusion Act by the Act of December 17, 1943 (ch. 344, 57 Stat 600 (formerly codified at 8 U.S.C. 262-97, 299)).

19 McCarran-Walter Act, ch. 477, 66 Stat. 1633, 8 U.S.C. 1101, 1952. 20 Ibid.
21 CONGRESSIONAL RECORD, pt 4, p. 5330 (1952). 22 Ibid.






8

legislation as the 1964 Civil Rights Act23 and the 1965 Voting Rights Act24 in response to the new activist mood.2s

The 1965 Immigration Act26 abolished the old national origins formula. Each country outside of the Western Hemisphere received unlimited visas for relatives of citizens and 20,000 visas for ordinary immigrants.27 The Act set quotas on immigration from the nations of the Western Hemisphere for the first time. The 1965 Act also offered a first-in-time, first-in-right system for 120,000 immigrants not related to United States citizens.28

Immigration resulting from the 1965 Immigration Act altered the demographic makeup of the United States over a mere thirty-year period. In 1960, one out of ten Americans was non-white." According to the 1990 census, one out of four Americans claimed to be non-white.30 The United States no longer consisted of an overwhelming white majority, with significant minorities of blacks, Hispanics and to a lessor and more localized degree, American Indians and Asians.



2 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241. A Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437. 25 Exec. Order No. 11,246, 3 C.F.R. 339 (1964-65). 26Immigration Act of 1965, Pub. L. No. 89-235, 79 Stat. 911 (codified as amended at 8 U.S.C. 1-14354 (1994).
27 Bill Ong Hing, Making and Remaking Asia America through Immigration Policy 1850-1990, pp. 38-41 (1993); quoted in Van De Mark, Too Much of a Good Thing. 28 Ibid.

29 Bureau of the Census, U.S. Department of Commerce, Census Population of 1960, Characteristics of the Population, pt. 1, at 145, tbl. 44 (1964).

3 Bureau of the Census, U.S. Department of Commerce, 1990 Census of Population, General Population Characteristics, 323 tbl. 253 (1992).






9

Immigration Policy

Congress made several substantive changes to immigration policy after 1965. The patterns of immigration and the policy considerations relating to it in the 1970s resembled, in some respects, those of the decade of the 1950s after the enactment of the Immigration and Nationality Act.31 In both decades, the entry of aliens outside the provisions of the basic law--both illegally as undocumented aliens, and legally as refugees--was increasingly the dominant pattern in immigration and the basis for the major issues confronting Congress.

Legislative response to the issue of refugees in 1980 with the Refugee Act of 1980,3 and undocumented aliens in 1986, the Immigration Reform and Control Act,33 was followed in 1987 by a shift in congressional attention to legal immigration.34 The Immigration Reform and Control Act of 1986 (IRCA) granted amnesty to certain illegal immigrants and mandated employer sanctions for those hiring illegal immigrants as a way to deter future arrivals.35

The Immigration Act of 199036 increased the number of available immigrant visas to 700,000 from the prior limit of 490,000 for fiscal years 1992-93 and 1993-94, and to 675,000 thereafter. Therefore, proposals to cut immigration by one-third did nothing




31 McCarran-Walter Act, ch. 477, 66 Stat. 163, 8 U.S.C. 1101 et seq. as amended throughout 8 U.S.C. 32 Refugee Act of March 17, 1980, Immigration and Nationality Act, [101(a)(42)(A)]. 33 Immigration Reform and Control Act, Pub. L. 99-603, 100 Stat. 3359 (1986). 34 "The 1970s Through 1990s: Immigration Issues, Review, and Revision" March 1996. 35 Immigration Reform and Control Act, Pub. L. 99-603, 100 Stat. 3359 (1986). 36The Immigration Act of 1990, Pub. L. No. 101-649 111-24, 104 Stat. 4978-97 (1990).






10

more than re-establish the immigration levels of the decade of the 1980s, the highest ever in the country's history up to that time.


Immigration Statistics

In 1994, the Immigration and Naturalization Service (INS) released detailed

estimates of the undocumented immigrant population in the United States as of October 1992. Those estimates were useful for a variety of purposes, including planning and policy development at the national and state level, evaluating the effects of proposed legislation, and assessing the fiscal impact of undocumented immigration. Between 1994 and October 1996, the INS revised and updated those estimates. As of October 1996, an estimated 5 million undocumented immigrants were residing in the United States. An estimated 350,000 undocumented aliens lived in Florida. The undocumented immigrant population was estimated to be growing by about 275,000 each year, which was about 25,000 lower than the annual level of growth estimated by the INS in 1994.37

California was the leading state of residence with 2 million, or 40 percent of the undocumented population. The seven states with the largest estimated numbers of undocumented immigrants in 1994 including California were Texas (700,000), New York (540,000), Florida (350,000), Illinois (290,000), New Jersey (135,000), and Arizona (115,000). These seven states accounted for 83 percent of the total undocumented population in October 1996.38

From 1960 to 1997, the foreign-born population increased from 1.3

million to 8.1 million in California, and from 0.3 million to 2.4 million in Florida, and 37"Illegal Alien Resident Population" 23 November 1997. 38 Ibid.









from o.3 million to 2.2 million in Texas.39 The foreign-born population in these three states combined rose from 1.9 million to 12.6 million, and the increase of 10.7 million represented 67 percent of the growth of the foreign-born population in the United States. During the period from 1960 to 1997, these three states accounted for 41 percent of the growth in total population."


Illegal Immigration

The U.S. Supreme Court in 1982, by a 5 to 4 ruling, invalidated a 1975 Texas

State Statute which withheld from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorized local school districts to deny enrollment to such children.41 The ruling in Plyler v. Doe 42 held that illegal immigrant children were entitled to an education since they were not responsible for their immigration status and were covered by the Equal Protection Clause of the Fourteenth Amendment to the constitution, which prohibited states from denying any person equal protection under the laws.43

The court recognized the importance of education to individuals and our nation

and concluded that the denial of education to this class of students could be justified only if it advanced a substantial state goal. The state offered several justifications for its law,



39 U.S. Census Bureau, Profile of the Foreign-Born Population of the United States: 1997.

4 Ibid.
4' Texas Education Code Ann 21.031 (Vernon Supp.1981). 42 Plyler v. Doe, 457 U.S. 202 (1982).

43 Joseph Perkins, The San Diego Union-Tribune, June 11, 1997, B-9, pg 2. Constitutional scholars said that neither Congress nor the state legislatures intended for the 14" Amendment to apply to the children of undocumented immigrants. That was because, when the amendment was originally proposed 130-some years ago, the United States had a defacto "open border" policy. There could be no illegal immigration.






12





such as preserving the government's financial resources, protecting the state from an influx of illegal immigrants, and maintaining a high quality of education for resident children. The Supreme Court, however, was not convinced that the law in question advanced these objectives. The Court reasoned that any funds saved by denying education to illegal alien children would be insignificant compared to the costs to the children, the state, and our nation. The Court noted that many of these children would remain in the United States and, if uneducated, would ultimately place a burden on our society. Finding no "rational justification for penalizing these children for their presence within the United States, over which they had no control," the Court struck down the law.44 As a result of this decision, public school districts were obligated to educate immigrant children residing with their parents or guardians within a district's boundaries, even if the families had entered the country illegally.

Public schools, however, did not have to admit non-resident immigrants tuitionfree. In 1983, the Supreme Court upheld a state law allowing local school boards to deny tuition-free schooling to any minor who lived apart from a parent or legal guardian for the primary purpose of attending public school.45 Thus, unlike immigrant children who came to the U.S. with their parents (even illegally), immigrant children who left their families to live in the United States for educational purposes were not entitled to free schooling.




" Ibid.
45 Martinez v. Bynum, 461 U.S. 321 (1983).






13


Table 1-1 Estimated Illegal Immigrant Population for Top Twenty Countries of
Origin and Top Twenty States of Residence: October 1996

Country of Origin Population State Of Residence Population All countries 5,000,000 All states 5,000,000 1. Mexico 2,700,000 1. California 2,000,000 2. El Salvador 335,000 2. Texas 700,000 3. Guatemala 165,000 3. New York 540,000 4. Canada 120,000 4. Florida 350,000 5. Haiti 105,000 5. Illinois 290,000 6. Philippines 95,000 6. New Jersey 135,000 7. Honduras 90,000 7. Arizona 115,000 8. Poland 70,000 8. Massachusetts 85,000 9. Nicaragua 70,000 9. Virginia 55,000 10. Bahamas 70,000 10. Washington 52,000 11. Colombia 65,000 11. Colorado 45,000 12. Ecuador 55,000 12. Maryland 44,000 13. Dom. Republic 50,000 13. Michigan 37,000 14. Trinidad/Tobago 50,000 14. Pennsylvania 37,000 15. Jamaica 50,000 15. New Mexico 37,000 16. Pakistan 41,000 16. Oregon 33,000 17. India 33,000 17. Georgia 32,000 18. Dominica 32,000 18. District of Columbia 30,000 19. Peru 30,000 19. Connecticut 29,000 20. Korea 30,000 20. Nevada 24,000
Other 744,000 Other 330,000
Source: Illegal Resident Population, Immigration and Naturalization Service, 1997.


Estimating the size of a hidden population was inherently difficult. The
figures presented here reflect the size, origin, and geographic distribution of the undocumented immigrant population residing in the United States
during the mid-1990s. These estimates were constructed by combining detailed statistics, by year of entry, for each component of change that
contributed to the undocumented immigrant population residing within the
state.4







46 "Illegal Alien Resident Population" 23 November 1997.






14

Immigrant Education

An additional Supreme Court decision with implications for immigrant children was Lau v. Nicols, rendered in 1974.47 This case focused on the rights of non-English speaking children and the corresponding duties of public schools to address these students' unique needs. Specifically, Chinese students asserted that the San Francisco public school program violated the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 196448 by failing to make adequate provisions for the needs of students with English language deficiencies. The Court held that the lack of sufficient remedial English instruction violated Title VI, which prohibited discrimination on the basis of race, color, or national origin in institutions with federally assisted programs.49 The court held that equal opportunities were not provided by giving students the same textbooks, teachers, and curriculum. Further, requiring children to acquire English skills on their own before they could hope to make any progress in school made "a mockery of public education."50 Emphasizing that "basic English skill is at the very core of what these public schools teach,""' the Court concluded "students who do not understand English are effectively foreclosed from any meaningful education."52






47Lau v. Nichols, 414 U.S. 563 (1974).

48 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241. 49 42 U.S.C. 2000(d).
* 414 U.S. at 566.
5' Ibid.
52 Ibid.






15


The federal Equal Educational Opportunities Act (EEOA) of 197453 required each public school system to develop appropriate programs "to overcome language barriers that impeded equal participation by its students in its instructional program." While the EEOA stipulated that school districts must provide appropriate assistance for students with English deficiencies, it did not require that such assistance be in the form of bilingual or bicultural education. School districts could satisfy legal requirements by providing remedial English instruction rather than bilingual programs. Each state was responsible for providing a school system whereby all children received an education with no charge for attending school. The federal Equal Education Opportunities Act of 1974 also provided that no state could deny equal education opportunities to an individual because of his or her race, color, sex or national origin. Every person had the right to attend school, unless his or her conduct violated valid rules and regulations.54


Children of Immigrants Projected Change, 1990-2010
10 9
8 8 7 7
6 6 Children of
5 5 Natives
E 4 4 Children of Immigrants
2 2 1 1 0 0
1990 2000 2010 1990-2010 Source: Fix and Passel (1994).

Figure 1-1 School-Age Immigrant Population, 1990-2010 53 Equal Education Opportunities Act of 1974 (EEOA) at 20 U.S.C. 1703.






16

In considering the educational needs of students learning English, a look at the past proved to be judicious. At the turn of this century, a peak time for United States immigration, educational achievement was not the key factor in determining economic success. A strong back and willing hands were as important as the ability to read and write. During that period, it often took three generations for families to move into the American mainstream. Less than 100 years later, manual labor had little economic value. As the value of physical labor diminished, the expectations for effective communication and literacy increased. Students were not only required to have at least a high school diploma, they were required to be fully literate in English, to understand academic subjects and to know how to use technology. Instead of waiting generations for their families to acculturate to the mainstream, students were expected to assimilate into the mainstream within a matter of a few years.55

The relationship of immigration and education became a heated policy issue in 1994 due to a California proposal to deny taxpayer-financed education to illegal alien children. California's Proposition 187,56 which restricted government funded programs from serving illegal immigrants, passed in 1994 by a significant majority. A federal judge froze implementation of the provision in November 1997. Judge Mariana Pfailzer declared that it violated both the Constitution and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. The judge cited as unlawful the initiative's major sections--those barring undocumented immigrants from receiving publicly funded 54 Ibid.

55 Sandra H. Fradd and Okhee Lee, eds., 1998. Creating Florida's Multilingual Workforce, Miami, Custom Copy and Printing.
56 57 Cal. App.4th 693.






17


education, social services and health care--along with complementary provisions mandating that local law enforcement authorities, school administrators, social workers, and health-care aides turn in "suspected" undocumented immigrants.57 Other opponents of the measure argued that it was unconstitutional, citing the 1982 Plyler v. Doe Supreme Court decision.58 That decision centered on the view that the state had enacted an immigration-related law, whereas the federal government, which had not acted on the issue, had exclusive jurisdiction.59


Societal Impact

One of the most controversial political and economic issues in the United States at the time was the influence immigrants entering the country had on society. Some people categorized immigrants as an uneducated, unskilled burden on our economy that took advantage of many of the government funded programs established for the benefit of U.S. citizens. Opponents of the U.S. policy on immigration believed that "drastic steps" needed to be taken to curb the number of immigrants entering the United States.60 Politicians expressed their willingness to support measures that would close the borders and deny children of undocumented workers an education. After California voters passed Proposition 187,61 other states attempted to restrict undocumented alien access to government-funded programs.62


57 "Federal Judge: Proposition 187 Unconstitutional. Stage Set for Appeal of Anti-immigrant Initiative," Los Angeles Times, 5A, November 15, 1997.
58 Plyler v. Doe, 457 U.S. 202 (1982).

59 Chinese Exclusion Act, ch.126, 22 Stat.58, 1882 (formerly codified in scattered parts of 8 U.S.C. ch.7). 60 57 Cal. App.4" 693.
61 Ibid.






18

Historically, federal and state governments worked to keep students 'in' school, rather than 'out.' But as part of the wave of anti-immigrant sentiment, several proposals were made to bar undocumented immigrant students from attending public schools. California's victorious 1994 ballot measure, Proposition 187, barred undocumented students from the public schools.63

The Gallegly Amendment (1996)6 passed in the U.S. House of Representatives as part of an immigration-reform bill and gave states the authority to limit access. A portion of the Gallegly amendment read:

"Congress declares it to be the policy of the United States that ...
aliens who are not lawfully present in the United States not be
entitled to public education benefits in the same manner as United
States citizens and lawful resident aliens..."65

Supporters of the Gallegly Amendment argued that America's education system, like other social-service programs, attracted a disproportionate number of immigrants and that the cost of educating such children was too high in an era of tight school budgets.66 Opponents of the measure denounced it as cruel; hundreds of thousands of children could potentially be turned away at the schoolhouse door.67




62 Abel Carmona, Dispelling Myths About Immigrant Students, IRDA Newsletter, May 1996 .
63 Ibid.

6 H. R. (2022).
65 Charles Levendosky, "The Politics of Turning Children into Victims," Casper (Wyo.) Star Tribune, May 1996 October 1998.
6 "Illegal Immigrant Children: In or Out of Public Schools?" Education Week, April 1996, . 67 Carmona, Dispelling Myths About Immigrant Students.






19

The immigrant population was similar to the United States population in that it included people with varying degrees of education. Some had less than eight years of formal education and others had doctorates. The educational level of immigrants was higher than those of the past and continued to improve. On average, the proportion of immigrants with post-graduate degrees was greater than the proportion of people with post-graduate degrees in the native population. 68

Just as the privileges of our society afforded to its educated people served as incentives for people to become educated, it also served as an incentive for some to emigrate here, even those who were from countries as prosperous. As a consequence of this phenomenon, the United States experienced a growth in our pool of people who excelled in such technological fields as engineering, mathematics and science.69 With this growth, the United States had the potential of increasing its productivity and expanding into frontiers in many fields of study, particularly in technology and science.70

A study of immigrant middle school students," made available by Johns Hopkins University, reported that the children of immigrants overwhelmingly preferred English to their parents' native languages. The initial study was done in 1990 and 1991.72


6 Julian Simon, Immigration: The Demographics and Economic Facts. Washington, DC: Cato Institute and National Immigration Forum, 1995.
69 David W. Stewart, Immigration and Education: The Crisis and the Opportunities. New York, Lexington Books, 1993.
70 Carmona, .
71 James M. McPartland, Project Director. Center for Research on the Education of Disadvantaged Students (CDS), Project # 7126: The Adaptation of Immigrant Children in the American Educational System. John Hopkins University (1997).
72 Ruben G Rumbaut, (August 1990). Immigrant Students in California Public Schools: A Summary of Current Knowledge. CDS Report No. 11, and Alejandro Protes (1991), Characteristics and Performance of High School Students in Dade County (Miami) Schools. CDS Report No. 24.






20


The results of this study indicated that the children of immigrants were unlikely to develop into an underclass, as some experts feared, cut off by academic failure and an inability to speak English. But the researchers also found it was uncertain how well the children of immigrants, who made up 20 percent of all children in the U.S., would do in college and in the job market.73

The research team, led by sociologists Ruben Rumbaut of Michigan State

University and Alejandro Protes of Princeton University, first interviewed 5,200 eighth and ninth graders in San Diego and South Florida in 1992. They located 82 percent of the initial sample for a second interview in 1995 and 1996.74

The research found that the children of Chinese, Indian, Japanese and Korean parents got the best grades, an average of A's and B's. English speaking West Indians had lower grades, Cs and C+, while Latin American and Haitian youths performed most poorly, with averages that were slightly higher or lower than a C.75

But a few groups defied what would have been expected based on their

socioeconomic status. The children of Southeast Asian refugees, who came from the most impoverished background and whose parents were among the least educated, were also among the least likely to drop out and had above average grades. And the children of Cuban immigrants, who were from average to above-average socioeconomic backgrounds, had the highest dropout rates and among the lowest grades, the survey reported. The Cuban children, who belonged to the dominant group in Metropolitan



3 Ibid.
74 Ibid.
75 Ibid.






21

Miami, faced less discrimination than any other group in the survey. The children of Cubans did worse academically than the children of Mexicans, who were one of the poorest and were by far the largest immigrant group in the United States. On the issue of language, the survey found while nine out of ten of the youths surveyed spoke a language other than English at home, almost exactly the same proportion, 88 percent, preferred English by the end of high school.76


Fiscal Responsibilities

Schools were caught in a struggle between the needs of immigrant children who filled their classrooms and the growing number of parents and taxpayers unwilling to expend more money for bilingual instructors to teach these students and buildings to house them. According to The Center for Immigration Studies, it costs 50 percent more to educate a child with limited English proficiency than a child with fluency in English.77

To help cover the cost of educating these children, the federal government gave about $30 million a year through the Emergency Immigration Education Act of 1984.78 But educators and politicians believed the act was under-funded. In 1994, California, Texas, New Jersey, New York, and Florida sued the federal government for billions of dollars to cover the costs of educating undocumented immigrant children. The court eventually rejected the state cases.79



76 Ibid.
7 Vail, "No Entry" pp. 19-25.
78 The Emergency Immigrant Education Act (EIEA), (Title IV, Part D of the Elementary and Secondary Education Act), as amended, (20 U.S.C. 3121-3130) (expired September 30, 1999). 79 Vail, "No Entry" pp. 19-25.






22


The State of Florida was unable to prove to the federal government that illegal immigration in Florida had a significant impact. Florida was forced to rely on speculation on some of its figures, which weakened its case. The burden of proof of additional costs due to illegal immigrants remained with the state.80

Florida's education costs for both legal and illegal immigrants in 1993 were $517.6 million, which was up 24 percent from 1992's expenditure of $418.5 million. The state spent $254 million alone on the English for Speakers of Other Languages (ESOL) program.81

Education for illegal aliens totaled $180.4 million in 1993. This number

represented another 24 percent increase in costs from the previous year when illegal alien education was $145.9 million. The increase was due to the rise in numbers of illegal aliens arriving in Florida.82

According to Kathleen Vail, an assistant editor of The American School Board

Journal, much of the increase in public school enrollment was due to rising immigration. This mounting enrollment strained schools that were already dealing with the recent influx of immigrant children. The immigrant children taxed the schools further by needing bilingual teachers and language programs. The schools were forced to spend scarce resources on immigrant students. Immigrant families tended to have larger






8o John Digrado, "News", Daily Bruin, May 1996, (October 1998). 81 "Florida: Social Policy Issues," Immigration and Florida: Social Policy Issues, 1997, (1 February 1998).
82 Ibid.






23

families than Americans, which meant more children per family in need of bilingual education and special services.83

As of 1993, approximately 60 percent of all foreign-born people residing in the United States came to this country during the decade of the 1980's.84 About 9 million immigrants came during those years, increasing the U.S. population by 6 percent. The children of these immigrants, about 2 million of them, enrolled in school, increasing enrollment in English as a Second Language classes by 50 percent. Five states had carried the burden of this wave, according to Rand. More than 70 percent of all immigrants lived in California, New York, Texas, Florida, and Illinois.85

The Center for Immigration Studies estimated an additional 50 percent cost to educate a student with limited English proficiency than one who was fluent in English. But opponents in the immigration debate disagreed over whether immigrant families produced enough tax revenue to pay for the extra services they received. Immigrantrights groups said that immigrants, including illegals, paid enough taxes to cover the costs of educating their children. According to the Urban Institute, local, state, and federal governments spent some $42.9 billion a year in services for immigrants, including $11.8 billion for educating legal and illegal immigrant children. This expense was more than offset by the taxes legal and illegal immigrant families paid--$70.3 billion a year, according to the Urban Institute. But in 1992, Rice University professor Donald Huddle put the cost of educating immigrants at $16.4 billion--and the total cost for services for 83 Vail, "No Entry" pp. 19-25.

4 Lorraine M. McDonnell and Paul T. Hill, Newcomers in American Schools: Meeting the Educational Needs of Immigrant Youth, Santa Monica, Calif.: RAND, MR-103-AWM/PRIP, 1993. 85 Ibid., p. 22.






24


immigrants at $62.7 billion. In the study, funded by the Carrying Capacity Network, Huddle said immigrants paid only $20 billion in taxes.86

There was no comprehensive rule that restricted direct federal assistance or

federally funded assistance on the basis of immigration status. This was true both with respect to legal permanent residents who entered under the admission system of the Immigration and Nationality Act of 198687 and to aliens who entered or remained in violation of the law.88

Those restrictions that did exist had been enacted on a program-by-program basis, beginning in the 1970s. Most existing restrictions denied assistance to aliens who were here without legal permission.89

Immigration policies were made at the federal level and addressed broad issues such as quotas and enforcement of immigrant requirements. Immigrant policies, on the other hand, were made at the state level and focused on immigrants already residing in the United States. Immigrant policy makers dealt with how to integrate immigrants into the American population and assist them with public benefits during the transition."

There were three basic policy issues concerning education and immigration:

education of illegal alien children, the volume of legal immigration and the strain it put



86 Donald Huddle 1994, "The Net National Costs of Immigration in 1993" June 1994. This was a comprehensive nationwide study of the fiscal impact of immigration. 87 Immigration Reform and Control Act, Pub. L. 99-603, 100 Stat. 3359 (1986). 88 McDonnell, and Hill, RAND, MR-103-AWM/PRIP, 1993. 89 Ibid.
90 Rocio Del Sagrario Toriz , "Federal and State Responsibility for Undocumented Immigration," Berkeley McNair Journal Three, no. Summer 1995 (1995) .






25

on the schools and public budgets, and the admission of foreign students to U.S. universities as a route to immigration status.91


Research Question

In order to investigate this problem, the following questions were addressed. Does the state of Florida have a legal, ethical, and moral obligation to educate the children of undocumented immigrants? Does the state require a policy directed specifically to the education of these children? What should Florida's policy be on educating the children of undocumented immigrants?


Methodology

The traditional method of Policy Analysis/Legal Investigation was utilized to identify judicial reasoning relative to established legal principles and applications in relevant cases involving undocumented immigrant education. The procedure included identifying relevant constitutional amendments, federal acts, state statutes, and rules and regulations. Relevant cases were compiled, and judicial reasoning in each case was analyzed.

To address the purposes of the study, there was a need to develop suggested sample policy inclusions for implementation by all school districts within the state of Florida. Several methods of legal research were employed. Specifically, policy study and traditional legal research were appropriate. To accomplish this task, it was necessary and prudent to research the status of current policies as well as research the appropriate laws and rulings.


91 "Immigrants and Education," in Fair , May 1997.






26

Legal research, as generally defined, was a systematic investigation, which

involves interpreting and explaining the law.92 Historically, legal research has relied on precedent.

The methodology utilized in this study was not only to review the previous and current policies, but also to build a foundation for designing a model for undocumented immigrant education policy for the state of Florida.


Definition Of Terms

1) Undocumented immigrant: designates persons who are correspondingly
referred to as "illegal immigrants" or "illegal aliens." Congressional Research
Service defines illegal aliens as persons who have violated immigration law.

2) Fundamental Rights: those rights explicitly or implicitly provided by the
federal constitution such as the right to exercise First Amendment freedoms.
The courts have found that education is a not fundamental right.

3) Procedural due process: guarantees procedural fairness where a person's
property or liberty is deprived by the government.

4) Suspect Classification: "deserving of special scrutiny" include those based on
race, national origin, religion, alienage, non-residency".

5) Undocumented aliens: persons who are in the United States in violation of the
Immigration and Naturalization Act. They either entered this country illegally
or entered legally, then violated conditions of entry.

6) Undocumented alien children: children who live with their parents who are
residing in the United States illegally; children whose parents reside in another country, and the children are residing in the United States with
someone who is not their "parent, guardian, or person having lawful control"
for the sole purpose of attending free public school.

7) Newcomer: a recent immigrant, either legal or illegal.






92 Charles J. Russo, Legal Research: The 'Traditional Method, 28 NOLPE Notes 2 (October 1993).






27


Limitations

This study provides an analysis of previous statutes, court cases, school board policies, and attorney general opinions related to the education of undocumented alien children. As the members of the courts change, changes could develop in the legal bases providing the foundation for this study.

Further limitations are listed below.

1) It is unlawful to ask for proof of legal status from a student.

2) Discussion of education expenditures include K-12 but not post-secondary.

3) Data available are estimates from the total population.

4) Most recent Census data is for 1990 (with estimates for 2000).

5) The transient nature of the target population.

6) Local governments do not document U.S. residency status of local service
consumers, in part, because local residency is a requirement for local service
eligibility: U.S. residency status is not a program eligibility requirement.

7) Statutory and other data collection requirements on Newcomers for state and
local entities are incomplete, unverified, sometimes non-mandatory, of
relatively low priority, include no provisions for centralized reporting, and are
under-utilized by state and local governments.


Design Of Study

The framework for this study was provided by legal doctrines that can be

identified in the U.S. Constitution, federal and state case law, statutes, and rules and regulations, and the Florida Constitution. The study was an examination of law and policy as it related to the education of undocumented immigrant children. It looked at estimates and percentages of undocumented alien children and the educational programs





28


they require. Data were retrieved from the Internet and/or public documents and publications.

1) The study examined historical constitutional issues involved in educating
undocumented alien children in order to demonstrate previous policy.

2) The study analyzed the United States Supreme Court ruling in Plyler v. Doe
(1982) in order to understand the current paradigm.

3) The study examined California's Proposition 187, and its implications for
legislative policy for the state of Florida.

4) The study looked at some of the ethical and moral considerations of educating
undocumented alien children in order to determine the obligations of the state
of Florida.

5) The study suggested a feasible policy on undocumented immigrant education
for the state of Florida.


Organization of the Chapters

Chapter I provides introductory information, a statement of the problem, and the significance, methodology, limitations, and design of the study. The remainder of this study is organized in the following manner. Chapter 2 presents an historical review of immigration legislation through 1982. Chapter 3 continues with the historical review and looks at some illegal immigration statistics for the United States and the state of Florida. Chapter 4 presents some financial and ethical issues related to the education of undocumented immigrant children. Using some historical information, it also puts forward the question of what would the political atmosphere regarding the education of immigrant children would be like if the Plyler decision had been different. Chapter 5 suggests inclusions for a practical immigrant education policy for the state of Florida, including the undocumented immigrant student.















CHAPTER 2
HISTORICAL REVIEW OF IMMIGRATION LEGISLATION


Introduction

This chapter discusses immigrants and immigration and examines U.S. immigrant legislation through 1982. It looks at the origins of immigration and immigrant education policies and the reasons they came into existence.


Immigration Legislation

The extraordinary migrations of peoples from Europe and Asia to the Americas, Australia, and Africa during the last hundred years, not as colonists but as immigrants to countries already politically established, was one of the noticeable and far-reaching phenomena of the economic age. The United States, as the country that received these immigrants in greatest numbers, experienced the greatest perplexity over the problems this immigration created.

The United States continued to be an appealing place to live. If it were less

desirable, perhaps residence in the U.S. would not need to be legally restricted. But, in the closing years of this century, immigration levels were at an historic high, and the demand remained as great as it had ever been. The assumption behind U.S. citizenship and immigration law was that we could not embrace all who wanted to make this country their home. There needed to be some standard for admission and exclusion. So whom



29






30


could we admit? This was essentially the question immigration law and policy had to address. States could not make their own policies on immigration admissions. Immigration policy was the overarching responsibility of the national government, chiefly, the legislative branch.'

American immigration policy was alleged to rival the federal tax code in its complexity. Federal immigration laws, beginning with the act of 1875, served three general purposes: to deny admission, to facilitate entrance for qualitative reasons and to limit the number of entrants.2

The power of a nation to deny admission of a foreigner to its territory was a right under international law that had been exercised in all times. Complete exclusion of foreigners and the denial of free communication with foreign nations, however, had been treated as an act of unfriendly or hostile character, and against it nations have applied forceful methods. In this manner, the foreign exclusion policy imposed upon China by the Manchu Dynasty was broken by European nations, even at the cost of war; and in 1854 the United States, by a naval demonstration by Commodore Perry, coerced the government of Japan into abandoning its policy of non-communication with foreign nations, which had been in place for nearly 250 years.3

Immigration into the United States had passed through several phases. Prior to

1880, immigration consisted almost exclusively of peoples of northern Europe, who were 1 James G. Gimpel and James R. Edwards, Jr., The Congressional Politics of Immigration Reform, Boston, Allyn and Bacon, 1999.
2Ibid.

3 The Lincoln Library of Essential Information 35" ed., s.v. "Immigration." Frontier Press: Columbus, Ohio, (1972).






31

the original settlers of the United States. After that date, immigration from northern Europe declined, while that from southern Europe and from Russia rapidly increased. This so-called "new immigration" produced a change in the American attitude toward unlimited immigration. Until World War I, the immigration laws were designed only to exclude certain undesirable categories, including the feeble-minded, insane, epileptics, sufferers from certain contagious diseases, paupers, criminals, prostitutes, polygamists, anarchists, and those convicted of, or admitting to, crimes or misdemeanors "involving moral turpitude." The importation of labor under contract was also forbidden.4

Asiatic immigration was restricted, first, by the Chinese Exclusion Act of 1882,5 re-enacted in 1892 and in 1902, whereby all immigration from China, except students, merchants, and a few other classes, was forbidden.6 Not until December 1943, was the exclusion law repealed, and the Chinese placed on the same footing as other immigrants. After 1900, when Japanese immigration into California became notable, an exclusion league was organized in that state and agitation was initiated to secure legislation forbidding the admission of Japanese. In 1907, when an immigration bill restricting the admission of Japanese and Korean laborers was introduced into Congress, the president secured in its place the Congressional authority to suspend Japanese and Korean labor immigrants coming from our insular possessions or from Canada or Mexico. An agreement was made between the United States and Japan-the so-called "gentlemen's


4 Ibid.

5 Chinese Exclusion Act, ch. 126,22 Stat.58. 1882.
6 The Lincoln Library of Essential Information.






32


agreement"--whereby the latter government undertook to limit, by the refusal of passports, the entrance of laborers into the United States.7

In 1924, the United States Congress passed an act8 that reduced annual

immigration to 2 percent of the number of foreign residents in 1890. A minimum of 100 was accorded to each country. This law was replaced in 19659 by a measure phasing out the quota system by July 1, 1968. It provided for a total permissible immigration of 120,000 yearly from independent countries of the Western Hemisphere and 170,000 from all other countries, but not over 20,000 from any one country. Preference was given to members of professions or those having special talents or education. In addition, immediate relatives of citizens could be admitted without limit, including minor children, spouses, and parents. No previous law had limited immigration from the Western Hemisphere.'1


American Immigration Before 1920

Prior to the 1790 Naturalization Rule, the United States did not have an

immigration policy. It did enact laws pertaining to the entry of people into the country, although it was doubtful that these could be considered part of a true immigration policy." The 1790 immigration rule required a two-year residency period combined with 7Ibid.

8 The Immigration Act of 1924, ch. 190, 43 Stat. 153 (1924).

9 Immigration Act of 1965, Pub. L. No. 89-235, 79 Stat. 911 (codified as amended at 8 U.S.C. 1-14354 (1994).

'0 Ibid.

" Gregg Van De Mark "Too Much of a Good Thing," Washburn Law Journal 35, no. 3 (Spring 1996) .






33

a renunciation of foreign citizenship and loyalty. Congress then gave the President the power to deport foreign revolutionaries under a 1798 alien act. In 1802, Congress changed the period required for naturalization to five years.'2

The fight against illegal immigration began in 1875 when the United States

established its first law limiting immigration, which prohibited the entrance of convicts and prostitutes.13 Then in 1882, Congress established legal limits on immigration excluding Asian immigration.'14 The 1882 law also solidified the establishment of the United States Constitution as the supreme law of the land.'5

In 1907, Congress set up an immigration commission (Dillingham Commission) to study the growing immigration concerns of the general public. The main concerns of those pushing for immigration controls were the assimilability of the new immigrants, their sheer numbers, and their effect on the nation's politics, language and culture.'6 The commission's investigation-the most exhaustive study of immigration in American history--originated in response to calls to curtail immigration from Japan and southern and eastern Europe. In 1911, the Dillingham Commission eventually recommended restrictive changes to America's immigration laws.'7



'2 Lawrence G. Brown, "Immigration: Cultural Conflicts and Social Adjustments" 267 (1969). 13 Vail, "No Entry" pp. 22-25.

14 Chinese Exclusion Act, ch.126, 22 Stat. 58, 1882. 15 U.S. Constitutions, Art. VI, cl.2.
16 Thomas A. Aleinikoff, and David Martin, Immigration: Process and Policy, 1-42 (interim 2d ed. 1991). '7 Ibid.






34

Immigration Policy After 1920

Congress finally responded to the Dillingham Commission's recommendations ten years later by passing the Quota Act on May 19, 1921.18 The Act created a National Origins plan under which each country had an immigrant quota in proportion to that nation's past contribution to the population of the United States.19 The Act based the quotas on the 1910 census and allowed 357,000 immigrants into the United States each year.20

The 1924 Immigration Act used the 1890 census of different ethnic groups in the United States as a basis for establishing a national origins quota for emigrant-sending nations.21 The primary idea reflected in the Act of 1924 was the fear that heavy immigration from southern and eastern Europe discriminated against current residents of the United States (largely descended from northern and western Europeans) by diluting the ability of current residents to determine the nation's destiny.22 The 1924 Act maintained the 1921 exemption from quotas for the independent countries of the Western Hemisphere." The Western Hemisphere exception resulted from a combination of the economic interests of southwestern ranchers and farmers and a policy of PanAmericanism that emphasized solidarity against the problems of Europe. Thus the 18 Quota Act, ch. 8, 42 Stat. 5 (1921).
'9 Ibid.
20 Ibid.
21 The Immigration Act of 1924, ch. 190, 43 Stat. 153 (1924). 22 Benjamin M. Ziegler, ed., Immigration, An American Dilemma 13 (1953). 23 Marion T. Bennett, American Immigration Policies: A History, 249-55 (1963).






35


1920s' legislation sought to preserve the European heritage as it had developed in the United States without identifying our nation with modem Europe.24

The 1890 census served as a temporary provision until Congress established the final national origins system in 1929.25 Thereafter, Congress set the national origins quota at one-sixth of one percent of the 1920 population to arrive at a base figure of 153,714.26 The 1920s' legislation effectively stopped large-scale immigration to the United States for forty years.

A great reduction in "anti-immigrant hysteria" followed the 1920s' legislation. Yet, the tendency of Americans to intermarry continued among second and third generation Americans.2 These unions became more visible and accepted in the absence of mass immigration. The effects of such personal assimilation spread and gradually became a recognized and comfortable feature of American life. America began to celebrate immigrants rather than fear them.2s

The Statue of Liberty was a famous example of the emerging confidence in American assimilative capacity and the resulting embrace of America's immigrant heritage. Originally a gift from France meant to symbolize the Franco-American relationship, the statue symbolized America's "light of liberty" illuminating the world.29 24 Maldwyn A. Jones, American Immigration, 249-55 (20" ed. 1992). 25 Act ofJuly 1, 1929, ch. 306, 45 Stat.400.

26 John Higham, Strangers in the Land: Patterns of American Nativism 1860-1925 p. 321 (1955). 27 Arthur M. Schlessinger, Jr., The Disuniting ofAmerica" 19, 133 (1993). 28 Ibid.
29 Thomas A. Aleinikoff, The Tightening Circle of Membership, 22 Hastings Const. L.Q. 915 (1995).






36


Not until the 1930s and 1940s (the very lowest period of 20h century immigration-and the beginning of modern American confidence in assimilation) did the Statue of Liberty begin to represent the immigrant in the eyes of most Americans.30

The mechanics of assimilation were very complicated but included such factors as political participation, economic and employment markets, education, residential patterns, economic class, and even factors such as leisure time activities.31 The relationship between the 1920s' legislation and assimilation was necessary because reduced ethnic conflict and emergent American commonality led directly to the theme of confidence in the American assimilative capacity which the United States Supreme Court in Plyler32 took for granted.

The term "family dynamic" was used to hypothesize that the children of

intermarriage help created a "new" culture by assimilating the traits of their parents and relatives with the larger culture to which they were exposed. An important part of this theory was that people who did not intermarry faced pressure to exhibit heightened tolerance and sensitivity toward children of those relatives who did intermarry. Foreignborn immigrants (and "natives") had significant and strong prejudices. Their children had less.

The family dynamic produced various compromises from which "acceptable" social deviation could be judged. This effect accounted for the fact that food, dance, some language, work habits, leisure activities, holidays, etc., tended to be retained longer 30 Ibid.
3' Kenneth L. Karst, Paths to Belonging: The Constitution and Cultural Identity, 64 N.C.L. REV. 303, 331-336 (1986); quoted in Van De Mark.






37


with the family (and often adopted throughout society), while rigid prejudices tended to be discarded as "troublesome." Customs that offended relatives "on the other side," or the public, also tended to be dropped. Family solutions to cross-cultural interactions within the family set out how far one deviated from the established norms. Family members carried these new sensibilities with them in their other social interactions and thus began a ripple effect of tolerance. The family dynamic also included influences from the experiences of all family members in the larger society. Thus, assimilation was not a wholesale swap of one cultural form for another.33 Those who claimed that America had always been a diverse nation, de-emphasized the strong tendency of individuals and families to seek common ground.

Education developed another important nexus between cultural dynamism and value solidification, which benefited from reduced immigration levels. Experts acknowledged the role of education in encouraging individuals to move away from passively accepting predetermined social roles even before the American Revolution.34 Education also solidified core values even during times of demographic change. During the 1920s, concerned Americans began what was known as the "Americanization" movement in education.35 Proponents of the Americanization movement often overlooked minority accomplishments and glossed over majority abuses in their push to 32 Plyler, 457 U.S. at 202 (1982).

33 Bernard Bailyn, Education in the Forming of American Society 49 (1960); quoted in Van De Mark. Ibid.
35 Arthur M. Schlessinger, Jr., The Disuniting ofAmerica, p. 35 (1993).






38


develop a common social nucleus.36 Education helped form new social patterns by providing access to middle class professions and by easing social barriers to the extent that intermarriage was common among middle class young people.37

The forty-year break in immigration protected, supported, and developed a

shifting and evolving "common" culture and, simultaneously, anchored the core values necessary to maintain a workable society. The objectionable racist and eugenic appearance of the 1920s' legislation should not blind us to the positive results of a fortyyear immigration lull.38 Whatever the drafters of the 1920s' legislation intended, it reduced social tensions and sustained the assimilative relationship between intermarriage and core values.


The 1952 Immigration Act

In 1952, the McCarran-Walter Act39 basically altered the immigration policy of the United States. The 1952 Immigration and Nationality Act (official name) retained the 1920 quota base. It removed racial bias from the setting of national origins quotas since particular immigrants could not be excluded on account of race." The Act also: (1) reaffirmed the national origins quota system; (2) limited immigration from the Eastern Hemisphere while leaving the Western Hemisphere unrestricted; (3) established preferences for skilled workers and relatives of U.S. citizens and permanent resident 36 Ibid., p. 53-55.

37 Karst, as quoted in Van de Mark, p. 335.
38 Aleinikoff, The Tightening Circle p. 49.

39 McCarran-Walter Act, ch.477, 66 Stat. 163, 8 U.S.C. 1101 et seq. as amended throughout 8 U.S.C.

0 Ibid.






39

aliens; and (4) tightened security and screening standards and procedures. President Truman vetoed the Act because it did not go far enough in removing racial bias from the immigration process."'

Congress then overrode Truman's veto by a wide margin. In response, President Truman appointed a commission to study immigration after Congress enacted the McCarran-Walter Act. The Commission's report thoroughly re-evaluated the American national identity.42 The Commission concluded that the McCarran-Walter Act was immoral and exclusionist in an era of emerging civil rights and Cold War challenges.43 The Commission decided that American society was assimilated enough to ensure social and political stability."

Senator McCarran expressed a different view and maintained that the nation had always been besieged by immigrants and that ending the national origins system would inject further conflict into an ethnically altered United States. "This nation is the last hope of Western Civilization and if this oasis of the world shall be overrun, perverted, contaminated, or destroyed, then the last flickering light of humanity will be extinguished.'45 McCarran truly wished to end racial discrimination in immigration admissions, but he felt that the United States could best serve its mission in the world by


41Ziegler, An American Dilemma, pp. 105-115.
42 Ibid., p. 109.

04 Ibid., pp. 108-10.

44 Ibid.
45 Congressional Record, pt. 4, p. 5330 (1952).






40


remaining true to its culture and by assimilating non-Europeans very slowly.46 The justifications of cultural unity, which had so concerned Congress, never dominated immigration debates after 1952.


The 1965 Immigration Act

Congress passed the 1964 Civil Rights Act47 and the 1965 Voting Rights Act48 that forbid discrimination against individuals and students who were limited in English language proficiency. Congress then passed the 1965 Immigration Act49, which abolished the national origins formula. Each country outside of the Western Hemisphere received unlimited visas for relatives of citizens and 20,000 visas for ordinary immigrants.50 The 1965 Immigration Act also set quotas on immigration from the nations of the Western Hemisphere for the first time.51 The 1965 Act offered a new system for immigrants not related to United States citizens to emigrate.52

Senator Edward Kennedy maintained that the new immigration laws would not lead to a flood of non-European immigration nor upset the ethnic mix of the United States.53 Attorney General Nicholas Katzenbach reassured doubters by stating, with 46 Ibid.
47 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241. 48 Voting Rights of 1965, Pub. L. no. 89-110, 79 Stat. 437. 49 Immigration Act of 1965, Pub. L. No. 89-235, 79 Stat. 911. 50 Bill Ong Hing, Making And Remaking Asian America Through Immigration Policy, 1850-1990. 38-41 (1993).

51 Immigration Act of 1965, Pub. L. No. 89-235, 79 Stat. 911 52 Ibid.
53 Nathan Glazer, ed., Clamor At The Gates: The New American Immigration, CICS Press, pp. 6-7, (1985).






41


some condescension, that population pressures in what is now termed the Third World would not encourage emigration;54 he could not have been more wrong.55

Congress designed the 1965 Act to provide a level playing field among emigrantsending nations without concentrating on any one region.56 The 1965 Act was not designed to transform the culture or the demographic character of the United States. Yet, the actual effects of the 1965 Act were dramatic.57 Because of the family reunion policies, the first immigrants who came into the United States after the 1965 Act clogged the system through "chain migration" of relatives, who in turn brought in their relatives and created an enormous backlog of people waiting to be processed.58 As a result of the surge in immigration and refugees from Third World nations after 1965, over eighty percent of annual legal entrants to the United States were from Latin America, the Pacific Islands, and Asia.59

Immigration resulting from the 1965 Immigration Act altered the demographic makeup of the United States over a mere thirty-year period. In 1960, one out of ten



5 David Rieff, Los Angeles: Capital Of The Third World, Harcourt Brace: New York, pp. 178-180 (1991). 55 Population growth and migration pressures in the Third World provide the strongest contributions to the immigration problem. See, e.g., United Nations Population Fund, The State Of World Population 1993 (1993).

6 Immigration Act of 1965, Pub. L. No. 89-235, 79 Stat. 911. 57 Almost 3 million Hispanics immigrated during the 1980s, contrasted with about 1.5 million during the 1970s. The Hispanic population increased by 53%. (By comparison the number of non-Hispanic AfricanAmericans increased by 13%. The United States also admitted 315,000 immigrants from Africa and Haiti during the 1980s. Between 1980 and 1990, the Asian-American population grew by 107.8%. Immigration And Naturalization Service, U.S. Department Of Justice 1990 Statistical Yearbook 50 (1991) [hereinafter Statistical Yearbook].

58 Peter Brimelow, Alien Nation: Common Sense About America's Immigration Disaster, p. 81 (1995). 59 Ibid., pp. 77-84.






42


Americans was non-white.6 According to the 1990 census, one out of four Americans claims to be non-white. The United States no longer consists of an overwhelming white majority, with significant minorities of blacks, and to a lesser and more localized degree, Hispanics, American Indians, and Asians.61 Immigration Policy After 1965

Congress made several substantive changes to immigration policy after 1965. The Immigration Reform and Control Act of 198662 (IRCA) granted amnesty to certain illegal immigrants and mandated employer sanctions for those hiring illegal immigrants as a way to deter future arrivals.

The Immigration Act of 199063 increased the number of available immigrant visas to 700,000, from the prior limit of 490,000, for fiscal years 1992-93 and 1993-94, and to 675,000 thereafter. Therefore, proposals to cut immigration by one-third did nothing more than re-establish the immigration levels of the 1980s, the highest ever in the country's history up to that time.

Immigrants arrived through a complicated system comprised of legal immigration, family-based immigration, skills-based immigration, nationality-based visas, refugees and asylum seekers, miscellaneous immigration, and illegal immigration." Third World 60 Bureau Of The Census, U.S. Department Of Commerce, Census Of Population 1960, Characteristics Of The Population, pt. 1, at 145, tbl. 44 (1964).
61 Ibid.

62 Immigration Reform and Control Act, Pub. L. No. 99-603, 100 Stat. 3359 (1986). 63 The Immigration Act of 1990, Pub. L. No. 101-649 111-124, 104 Stat. 4978-97 (1990). 64 Brimelow, Alien Nation, pp. 33-35. Estimates ranged from 300,000 to 500,000 per year:






43


immigrants, because of refugees,65 and above all, family re-unification policies,66 comprised the vast majority of the immigration backlog.67





16

14 12 10













1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 1997
Source: U.S. Census Bureau, Current Population Survey, March 1999. Figure 2-1 U.S. Foreign-Born Population





65 Hing, Making and Remaking Asian America, pp. 12-28. "6 Family re-unification effectively excluded European immigrants because relatively fewer Americans still had close family in Europe. Brimelow, Alien Nation, at 78-84. In contrast, the vast majority of Asian and Latin American immigrants arrived after the passage of the 1965 Act or were descended from post-1965 immigrants. Brimelow, Alien Nation, pp. 78-84. 67 Scott McConnell, The New Battle over Immigration, Fortune, p. 98, May 9, 1988.
8




4

2


















67 Scott McConnell, The New Battle over Immigration, Fortune. p. 98. May 9. 1988.






44


Educating Illegal Immigrant Children

Meyer v. Nebraska68 was a 1923 U.S. Supreme Court decision that overrode an

earlier Nebraska statue that barred individuals and schools from providing instruction in a language other than English to any student who had not completed the eighth grade. The defendant in Meyer was a teacher in a parochial school in a Lutheran church who taught German language to a ten-year-old boy who had not passed the eighth grade. The text used, a book of biblical stories written in German, was for the purpose of giving religious instruction in English.69 Their plan, according to the pastor, was simply to have their children learn enough German to be able to worship together as a family.

The Meyer decision put a stop to what had become a national trend. Nebraska had passed its English-only statute in 1919, and fourteen other states had followed its lead. Some had gone so far as to declare English (or "American") to be their official language. The decision in Meyer gave educators the right to use a language other than English in the classroom.

The Refugee Act of 1980,70 provided funding for such programs as English for

Speakers of Other Languages (ESOL or ESL). This program allowed immigrant students to be taught in their native language at a public school. The Consent Decree of 199071 mandated surveying immigrant students to determine their level of need for language Meyer v. Nebraska 262 U.S. 390 (1923).

69 Ellis Cose, A Nation of Strangers: Prejudice, Politics and the Populating ofAmerica. New York: Wm. Morrow & Company, Inc., 1992.

70 Refugee Act of March 17, 1980, Immigration and Nationality Act, [101(a)(42)(A)]. 71 Florida Department of Education. (1996a). 1990 League of United Latin American Citizens (LULAC) et al. v. State Board of Education Consent Decree. Tallahassee, FL: Office of Multicultural Student Language Education.






45


services in order to learn English and to provide those services as part of the education program.

Immigration policy up to 1965, did not address the aspect of educating the children of immigrants, legal or illegal. Each state had their own laws (or none) regarding the education of immigrants and other "suspect" classes. The education of illegal immigrant children did not become an issue until the decade of the 1970s in Texas, and then it became a problem.

Plyler v. Doe72 represented the epitome of confidence in America's assimilative capacity. The United States Supreme Court held that states could not deny a free public education to the foreign born children of illegal immigrants.73 In Plyler, the Court considered the Texas statute74 prohibiting state-funded public education to children of illegal aliens. James Plyler was the Superintendent of the Tyler Independent School



72 Plyler, 457 U.S. at 202 (1982).

73 Ibid., p. 230.

74 TEXAS EDUCATION CODE ANN. 21.03 (Vernon Supp. 1981) cited in Plyler, 457 U.S. at 201 n.l.
(a) All children who are citizens of the United States or legally admitted aliens and who are over
the age of five years and under the age of 21 years on the first day of September of any
scholastic year shall be entitled to the benefits of the Available School Fund for that year.
(b) Every child in this state who is a citizen of the United States or a legally admitted alien and
who is over the age of five years and not over the age of 21 years on the first day of September of the year in which admission is sought shall be permitted to attend the public free schools of
the district in which he resides or in which his parent, guardian, or the person having lawful
control of him resides at the time he applies for admission.
(c) The board of trustees of any public free school district of this state shall admit into the public
free schools of the district free of tuition all persons who are either citizens of the United States or legally admitted aliens and who are over five and not over 21 years of age at the
beginning of the scholastic year if such persons or his parent, guardian or person having lawful
control resides within the school district.






46


District, which was named in the case by "certain named and unnamed undocumented alien children."75

Mexican children who had entered the United States illegally and resided in Texas sought injunctive relief against exclusions from public schools pursuant to a Texas statute and school district policy. The United States District Court for the Eastern District of Texas," William Wayne, Justice, permanently enjoined defendants, and the defendants appealed. The Court of Appeals for the Fifth Circuit77 affirmed. Probable jurisdiction was noted.

The Supreme Court, under Justice Brennan,78 in the majority opinion, held that:

(1) the illegal aliens who were the plaintiffs could claim the benefit of the equal protection clause, which provided that no state could deny to any person the benefit of jurisdiction in the equal protection of the laws; whatever his status under the immigration laws, an alien was a 'person" in any ordinary sense of that term. This Court's prior cases recognized that illegal aliens were "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," could not be distinguished on the asserted ground that persons who had entered the country illegally were not "within the jurisdiction" of a State even if they were present within its boundaries and subject to its laws. Nor did the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within 7S Ibid.

76 458 F. Supp. 567.
7 628 F. 2d 448.

78Plyler, 457 U.S. 245.






47


its jurisdiction" confirmed the understanding that the Fourteenth Amendment's protection extended to anyone, citizen or stranger, who was subject to the laws of a State, and reached into every corner of a State's territory; (2) the discrimination contained in the Texas statute which withheld from local school districts any state funds for the education of children who were not "legally admitted" into the United States and which authorized local school districts to deny enrollment to such children could not be considered rational unless it furthered some substantial goal of the state. Although undocumented resident aliens could not be treated as a "suspect class," and education was not a "fundamental right," so as to require the State to justify the statutory classification by showing that it served a compelling governmental interest, the Texas statute did impose a lifetime hardship on a discrete class of children not accountable for their disabling status. These children could neither affect their parents' conduct nor their own undocumented status. The deprivation of public education was not like the deprivation of some other governmental benefit79. Public education had a pivotal role in maintaining the structure of our society and in sustaining our political and cultural heritage; the deprivation of education took an inestimable toll on the social, economic, intellectual, and psychological well-being of the individual, and posed an obstacle to individual achievement. In determining the rationality of the Texas statute, its costs to the Nation and to the innocent children could properly be considered; (3) the undocumented status of the children vel non did not establish a sufficient rational basis for denying the benefits that the state afforded other residents. It was true that, when faced with an equal protection challenge respecting a State's differential treatment of aliens, the courts needed to be attentive to 79 Plyler, 457 U.S. 203






48


congressional policy concerning aliens. But in the area of special constitutional sensitivity presented by these cases, and in the absence of any contrary indication fairly discernible in the legislative record, no national policy was perceived that might justify the State in denying these children an elementary education; (4) there was no national policy that might justify the state in denying the children an elementary education; and (5) the Texas statute could not be sustained as furthering its interest in the preservation of the state's limited resources for the education of its lawful residents. While the State did have an interest in mitigating potentially harsh economic effects from an influx of illegal immigrants, the Texas statute did not offer an effective method of dealing with the problem. Even assuming that the net impact of illegal aliens on the economy was negative, charging tuition to undocumented children constituted an ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens. Nor was there any merit to the suggestion that undocumented children were appropriately singled out for exclusion because of the special burdens they imposed on the state's ability to provide high-quality public education. History did not show that exclusion of undocumented children was likely to improve the overall quality of education in the State. Neither was there any merit to the claim that undocumented children were appropriately singled out because their unlawful presence within the United States rendered them less likely than other children to remain within the State's boundaries and to put their education to productive social or political use within the State.80



"o Plyler, 457 U.S. 246.









The Court recognized that "education was not a right" the constitution granted

individuals.8' Additionally, the Court rejected the premise that the children comprised of a suspect class qualified for full rights as Americans.82 Illegal alien children, unlike members of racial groups, were not a protected subclass because their classification resulted from voluntary criminal decisions on the part of their parents to reside in the United States. Yet, the Court referred to the role American education played in transmitting "our" American values and maintaining the democratic nature of "our" political system.83 The Court stated: "We have recognized 'the public schools as a most vital civic institution for the preservation of a democratic system of government,' ... and as the primary vehicle for transmitting 'the values on which our society rests,' ... 'In sum, education has a fundamental role in maintaining the fabric of our society."'"

The Plyler Court used "our" in a very special sense. The Court implied that in 1982 there was an "our" on which most could basically agree and which encompassed political, social, and educational values.

The Court's majority determined that "equal protection" under the Fourteenth Amendment "was not confined to the protection of citizens." Both the equal protection and the due process clauses of the Constitution, the court declared, "are Universal in their application, to all persons within the territorial jurisdiction, without regard to any "8 Plyler, 457 U.S. at 221 (citing San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 35 [1973]).

82 Ibid., p. 223.

83 Ibid., pp. 221-223.

* Ibid, p. 221.






50


differences of race, color, or of nationality; and the protection of the laws was a pledge of the protection of equal laws."85

The Court's majority opinion in Plyler v. Doe, given by Justice Brennan,

contained rather dramatic and elegant language highlighting the public-interest aspects involved. Penalizing children for the illegal entry of their parents would have marked them with the "stigma of illiteracy for the rest of their lives."86 If education in the United States was not a fundamental right, the opinion continued, "neither was it merely some governmental 'benefit' indistinguishable from other forms of social welfare." Also underlined by the Court majority was that education was "the most vital civic institution for the preservation of a democratic system of government" and that "we cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests."87 They added, "It is .. clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.""8

The majority further acknowledged that illegal aliens might have a negative net impact upon the economy, but did not buy the argument that barring their children from public education would have the effect of discouraging illegal entries, "at least when compared with the alternative of prohibiting employment of illegal aliens." The majority further indicated that they would not be impressed even if the state could have proven that 85 Yick Wo v. Hopkins, 118 U.S. 369, (1886).

86 Plyler, 457 U. S. 224.
87 Ibid., p. 221.






51

the quality of public education was improved by excluding a certain group of children from educational opportunities. The state, they reasoned, had not justified its selection of the particular group.89

As a result of the Supreme Court's decision," no school in the United States could legally deny immigrant students admission on the basis of their undocumented status, nor could they treat undocumented students differently than any other student.

Justices White, Rehnquist, and O'Connor joined Chief Justice Burger in his dissention of the ruling.9 In the minority, they felt that it was senseless for an enlightened society to deprive any children including illegal alien of an elementary education. However, "the Constitution did not constitute us as 'Platonic Guardian,' nor did it vest in the Court the authority to eliminate laws because they did not meet our standards of desirable social policy, 'wisdom,' or 'common sense.'"" (See APPENDIX for further clarification.)

The minority of the Court had no problem with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applied to illegal aliens who were physically "within the jurisdiction" of a state.93 The Equal Protection Clause did not



88 Ibid., p. 230.
89 Martha McCarthy, 'The Right to an Education: Illegal Aliens." Journal of Educational Equity and Leadership 2 (Summer 1982): 283-85.

90 Plyler, 457 U.S. 245.
9' Ibid.

92 TVA v. Hill, 437 U.S. 153, (1978).

93 Plyler, 457 U.S. 215.






52

mandate identical treatment of different categories of persons.94 The issue was whether, for purposes of allocating resources, a state had a legitimate reason to differentiate between persons who were lawfully within the state and those who were not.95 Therefore, the distinction drawn by Texas, based not on its own legitimate interests but on the classifications by the Federal Governments' immigration laws and policies, was not unconstitutional.

The Court had recognized that, in allocating governmental benefits to a given class of aliens, one "may take into account the character of the relationship between the alien and the country."96 When that "relationship" was a federally prohibited one, there could be no presumption that a state had a constitutional duty to include illegal aliens among the recipients of its governmental benefits.97

The Court held many times that the importance of a governmental service did not elevate it to a "fundamental right" for purposes of equal protection analysis." In San Antonio Independent School District, Justice Powell, speaking for the court, expressly rejected the proposition that state laws dealing with public education were subject to special scrutiny under the Equal Protection Clause. The Court further indicated there was



94 Jefferson v. Hackney, 406 U.S. 535, 549 (1972); Reed v. Reed, 404 U.S. 71, 75 (1971). 95 Plyler,457 U.S. 224.

96 Mathews v. Diaz, 426 U.S. 67, 80 (1976).
97 Plyler, 457 U.S. 247

9 San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 301 (1973); Lindsey v. Normet, 405 U.S. 56, 73-74 (1972).






53


no meaningful way to distinguish between education and other governmental benefits.99 Was education more "fundamental" than food, shelter, or medical care?

The Federal Government excluded illegal aliens from numerous social welfare programs, such as the food stamp program,'00 old-age assistance, aid to families with dependent children, aid to the blind, aid to the permanently and totally disabled, and supplemental security income programs,'0' the Medicare hospital insurance benefits program,1o2 and the Medicaid hospital insurance benefits for the aged and disabled program.103 Although these exclusions did not conclusively demonstrate the constitutionality of the State's use of the same classification for comparable purposes, at the very least they tended to support the rationality of excluding illegal alien residents of a state from such programs so as to preserve the state's finite revenues for the benefit of lawful residents. "4

The Court maintained, "Barring undocumented children from local schools would not necessarily improve the quality of education provided in those schools."'s0 However, the legitimacy of barring illegal aliens from programs such as Medicare or Medicaid did not depend on a showing that the barrier would "improve the quality" of medical care given to persons lawfully entitled to participate in such programs. Education, like 99 Plyler, 457 U.S. 248.

00 7 U.S.C. 2015(f) (1976 ed. and Supp. IV) and 7 CFR 273.4 (1981). '0' 45 CFR 233.50 (1981).

o2 42 U.S.C. 1395i-2 and 42 CFR 405.205(b) (1981). 03 42 U.S.C. 13950 and 42 CFR 405.103(a)(4) (1981). 104 Mathews v. Diaz, 426 U.S. 80.

'05 Plyler, 457 U.S. 252: See 458 F.Supp. 569, 577 (ED Tex.1978).






54

medical care, was enormously expensive, and there could be no doubt that very large added costs would fall on the State or its local school districts as a result of the inclusion of illegal aliens in the tuition-free public schools.

Justice Burger went on to say that "Denying a free education to illegal alien children is not a choice I would make were I a legislator. Apart from compassionate considerations, the long-range costs of excluding any children from the public school may well outweigh the costs of educating them."'" But that was not the issue: the fact that there were sound policy arguments against the Texas Legislature's rule did not make it unconstitutional.107

Justice Burger saw the ruling as a quick fix for the failings of the political

processes. He felt that better enforcement of immigration laws and policies would have prevented the need to rule on the right of illegal children to a free education.'08

The court suggested that "our" institutions had confidently and successfully

undertaken similar challenges. In Plyler, confidence in undertaking tough educational missions, analogous to those in prior decisions such as Meyer v. State ofNebraska,' 9



'" Plyler, 457 U.S. 253.
107 Ibid.

108 Ibid.

109 In Meyer v. State of Nebraska, 262 U.S. 390 (1923) the United States Supreme Court upheld the right of parents and teachers to arrange foreign language instruction for children and struck down a Nebraska statute prohibiting foreign language instruction to children before the eighth grade (see Neb. Laws 1919, CH. 249). The Court stated: "It is the natural duty of the parent to give his children education suitable to their station in life... "(400). The Court saw no harm in German language instruction to children when the children's parents did not contest the right of the state to reasonably regulate schools, compel attendance, and prescribe a curriculum for state-supported institutions. (Meyer, pp. 402-03).






55


Pierce v. Society of Sisters, o0 and Brown v. Board of Education'' prevailed over the

public interest doctrine revitalized in Ambach v. Norwick. 12


0o In Pierce v. Society of Sisters, 268 U.S. 510 (1925), the United States Supreme Court extended the Meyer reasoning to protect the right of private institutions to educate children. The Court invalidated an Oregon statute prohibiting private education of "normal" children within a reasonable distance from a public school (see Laws Or. 1923, p.9). The Court noted that it was within the state's power to reasonably regulate schools, to require that teachers be of "good moral character and patriotic disposition," or to require the teaching of certain subjects "plainly essential to good citizenship." However, the Court held that the states had no general power to "standardize its children by forcing them to accept instruction from public teachers only." (Pierce, pp. 534-535).

"' It was not until 1954, in Brown v. Board of Education, 347 U.S. 483, however, that the United States Supreme Court had the confidence to tackle one of the most enduring and debilitating problems in American life: the doctrine of separate but equal education.. At last, stated the Court, America must use its mature and successful institutions to include all Americans:

We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Today, education is perhaps the most important
function of the state and local governments. Compulsory school attendance laws
and the great expenditures for education both demonstrate our recognition of
the importance of education to our democratic society. It is required in the
performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a
principal instrument in awakening the child to cultural values, in preparing
him for later professional training, and in helping him to adjust normally to his
environment. In these days, it is doubtful that any child may reasonably be
expected to succeed in life if he is denied the opportunity of an education.
Such an opportunity, where the state has undertaken to provide it, is a right
Which must be made available to all on equal terms. Ibid. pp. 492-93.

m2 In Ambach v. Norwick, 441 U.S. 68 (1979), the United States Supreme court upheld a New York statute denying public school teaching positions to aliens who were eligible for citizenship but refused to naturalize. The Court noted that state power to enact classifications based on alienage had narrowed to the point of being "inherently suspect and subject to close judicial scrutiny" (Ibid. pp. 72-73 [internal citations omitted]). Nevertheless, the Court acknowledged that states have some functions so entwined with state governmental operations so as to allow exclusion of aliens under the still extant public interest doctrine (Ibid., pp. 73-74).
Citing Brown, Society of Sisters, and Meyer, the Court stressed the importance of education to our democratic society and to our culture (Ibid., pp. 76-77 [other internal citation omitted]). Moreover, the Court cited numerous authorities regarding the inculcating and democratizing role of the "public schools as an 'assimilative force' by which diverse and conflicting elements of our society are brought together on a broad but common ground." (Ibid., pp. 77-78). Additionally, the court recognized the special role that teachers play in the education of children as well as the wide latitude teachers have in the manner information is communicated to students as a rationale for a state to put reasonable requirements on teachers (Ibid., pp. 78-79). Once again, the court had acknowledged the nexus between cultural dynamism and core values.






56


The Plyler Court cited Ambach to emphasize the importance of transmitting fundamental values to children."3 In Ambach, however, the Court stressed the fundamental role of education in a manner which vindicated the right of states to better control those who taught our children, even to the extent of excluding resident alien teachers."4 4 Whereas Ambach concentrated on how the state transmitted values, and through whom, Plyler, in fact, focused on those who received fundamental values. In attempting to reconcile Ambach and Plyler, the question became whether teaching children who have no legal right to be in the country creates less of a concern than the possibility that an alien teacher legally present in the United States may teach in public schools?"5

The following timeline delineated United States immigration laws and policies since 1790. The dates illustrated in bold indicate laws or policies of relevance to the education of immigrant children. The first ruling of any significance to immigrant education came in 1923 with Meyer v. Nebraska."6 Most of these rulings were discussed within the context of this paper.


"' Plyler, 457 U.S. at 221-23 (citing Ambach, 441 U.S. at 760). Ambach, 441 U.S. at 77-79.

15 In Ambach, Justice Powell did not require evidence proving or disproving whether (legally resident) alien teachers negatively affected the New York schools in any way: The issue was the public-interest doctrine and the right of the state to regulate a sensitive public sphere. In contrast, Justice Brennan emphasized the scant proof of negative economic impacts on Texas schools resulting from teaching the children of illegal immigrants (Plyler, 457 U.S. at 228, 229). Justice Powell, who wrote the majority decision in Ambach but concurred in Plyler, gave no clue why he did not use the public-interest doctrine in Plyler other than emphasizing that the affected parties were children (Plyler, 457 U.S. pp. 236-240 [Powell, J., concurring]). Justice Powell's only mention of the concerns of ordinary citizens was the bland statement that he was "not unmindful of what must be the exasperation of responsible citizens and government authorities in Texas and other States similarly situated." (Ibid., p. 240 [Powell, J., concurring]). 16 Meyer v. State of Nebraska, 262 U.S. 390 (1923).






57


Table 2-1 Timeline of U.S. Immigration and Alien Education Policies

1790 Naturalization Rule adopted. Federal government established a two-year residency
requirement on immigrants wishing to become u.s. citizens.
1819 Reporting Rule adopted. Data began to be collected on immigration into the United
States. Ships' captains and others were required to keep and submit manifests of
immigrants entering the U.S.
1875 First Exclusionary Act. Convict, prostitutes, and "coolies" (Chinese contract
laborers) were barred from entry into the United States.
1882 Immigration Act passed. The federal government moved to firmly establish its
authority over immigration. Chinese immigration was curtailed; ex-convicts, lunatics,
idiots, and those unable to take care of themselves were excluded. In addition, a tax
was levied on newly arriving immigrants.
1885 Contract laborers' entry barred. This legislation reversed an earlier federal law
legalizing the trade in contract labor.
1891 Office of Immigration created. Established as part of the U.S. Treasury Department,
this new office was later given authority over naturalization and moved to the U.S.
Justice Department. (It was known as the Immigration and Naturalization Service.) In the same year, paupers, polygamists, the insane, and persons with contagious diseases
were excluded from entry to the United States.
1892 Ellis Island opened. Between 1892 and 1953, more than 12 million immigrants were
processed at this one facility.
1903 Additional categories of persons excluded. Epileptics, professional beggars, and
anarchists were now excluded.
1907 Exclusions further broadened. Imbeciles, the feebleminded, tuberculars, persons with
physical or mental defects, and persons under age 16 without parents were excluded.
1907 "Gentleman's Agreement" between United States and Japan. An informal agreement
curtailed Japanese immigration to the United States. Also, the tax on new immigrants
was increased.
1917 Literacy Test introduced. All immigrants 16 years of age or older must have
demonstrated the ability to read a forty-word passage in their native language. Also,
virtually all Asian immigrants were banned from entry into the United States.
1921 Quota Act. An annual immigration ceiling was set at 350,000. Moreover, a new
nationality quota was instituted, limiting admissions to 3 percent of each nationality group's representation in the 1910 census. The law was designed primarily to restrict
the flow of immigrants coming from eastern and southern Europe.
1923 Meyer v. Nebraska. U.S. Supreme Court decision struck down an earlier Nebraska
statute barring individuals and schools from providing instruction in a language other
than English to any student who had not completed the eighth grade.
1924 Origins Act. The Act reduced the annual immigration ceiling to 165,000. A revised
quota reduced admissions to 2 percent of each nationality group's representation in the
1890 census. The U.S. Border Patrol was created.
1927 Immigration Ceiling Further Reduced. The annual immigration ceiling was further
reduced to 150,000; the quota was revised to 2 percent of each nationality's
representation in the 1920 census. This basic law remains in effect through 1965.






58


Table 2-1--continued.
1929 National Origins Act. The annual immigration ceiling of 150,000 was made
permanent, with 70 percent of admissions slated for those coming from northern and
western Europe, while the other 30 percent were reserved for those coming from
southern and eastern Europe.
1948 Displaced Persons Act. Entry was allowed for 400,000 persons displaced by World
War II. However, such refugees must have passed a security check and had proof of
employment and housing that did not threaten U.S. citizens' jobs and homes.
1952 McCarran-Walter Act. The Act consolidated earlier immigration laws and removed
race as a basis for exclusion. In addition, the Act introduced an ideological criterion for
admission: immigrants and visitors to the United States could be denied entry on the
basis of their political ideology (e.g., if they were Communists or former Nazis).
1964 Civil Rights Act of 1964. Title VI forbid discrimination against students who were
limited in their English proficiency.
1965 Immigration Act was amended. Nationality quotas were abolished. However, the Act
established an overall ceiling of 170,000 on immigration from the Eastern Hemisphere
and another ceiling of 120,000 on immigration from the Western Hemisphere.
1974 Lau v. Nichols. The U.S. Supreme Court held that the failure of the San Francisco
school system to provide for the lingual needs of non-English speaking Chinese
students violated section 601 of the Civil Rights Act of 1964.
1974 Equal Educational Opportunities Act of 1974. Required school districts to remove
barriers to non-English speaking students' access to equal educational opportunities. 1975 Texas Education Code prohibited the education of nonresident aliens. 1978 Worldwide immigration ceiling introduced. A new annual immigration ceiling of
90,000 replaced the separate ceilings for the Eastern and Western Hemispheres. 1979 Ambach v. Norwick. Teaching certificates could only be given to U.S. citizens. 1980 Refugee Act. A system was developed to handle refugees as a class separate from
other immigrants. Under the new law, refugees were defined as those who fled a
country because of persecution "on account of race, religion, nationality, or political
opinion." The president, in consultation with Congress, was authorized to establish an
annual ceiling on the number of refugees who may enter the United States. The
president also was allowed to admit any group of refugees in an emergency. At the
same time, the annual ceiling on traditional immigration was lowered to 270,000.
1982 Plyler v. Doe, 457 U.S. Case which determined that undocumented alien children were
entitled to a free public education and protection under the Fourteenth Amendment. 1989 Teresa P. v. Berkeley Unified School District. California federal district court found
that the Berkeley schools' English-based bilingual education program did not violate
federal law.
1986 Immigration Reform and Control Act. The annual immigration ceiling was raised to
540,000. Amnesty was offered to those illegal aliens able to prove continuous
residence in the U.S. since January 1, 1982. Stiff sanctions for employers of illegal
aliens.
1990 Immigration Act of 1990. The annual immigration ceiling was further raised to
700,000 for 1992, 1993, and 1994; thereafter, the ceiling would drop to 675,000 a year.
Ten thousand permanent resident visas were offered to those immigrants agreeing to
invest at least $1 million in U.S. urban areas or $500,000 in U.S. rural areas. The
McCarranWalter Act of 1952 was amended so that people could no longer be denied
admittance to the United States on the basis of their beliefs, statements, or associations.





59


1994 Proposition 187. Law would deny illegal aliens all public services including education.
The Supreme Court ruled it unconstitutional in 1997.
1996 Immigration Act. Congress voted to double the U.S. Border Patrol to 10,000 agents
over five years and mandated the construction of fences at heavily trafficked areas of the
U.S.-Mexico border. A program to check the immigration status of job applicants,
1996 Immigrants lose benefits. President Clinton signed welfare reform bill. Legal
immigrants lost their right to food stamps and Supplemental Security Income. Illegal
immigrants became ineligible for virtually all federal and state benefits except emergency
medical care, immunization programs, and disaster relief.
Source: Summary of U.S. Immigration Law, Close-Up Foundation Special Topic Page, July 1998.

Summary

In the 1920s, legislators responded to social tensions by enacting restrictive immigration laws. In the relatively tranquil society, which resulted from reduced immigration in the ensuing years, Americans began to have more confidence in their institutions and values through the decades of the 40s and 50s. By 1965, the very success of the immigration lull led many Americans to believe that American institutions could accommodate any level of diversity. The United States Congress confidently, chose to change immigration policy in 1965."7

After liberalization of American immigration laws in the 1960s, mass immigration to the United States began again and continued without significant debate on the issues of social cohesion, which so dominated earlier immigration discussions. Public schools were one of the first institutions to confront the consequences of American immigration laws and the lack of enforcement of those laws. With corresponding confidence in American institutions and values, the United States Supreme Court in 1982 forced public schools to confront the challenge of illegal immigration.' 8 "7 Immigration Act of 1965, Pub. L. No. 89-235. 79 Stat. 911. 118 Plyler, 457 U.S. 202.






60


Illegal immigrant education legislation was historically in favor of providing said education to all students in residence in a given state, whether legal or otherwise, and in a language conducive to their learning success.

Given the laws and trends in immigration, educators in every sector expected a substantial share of their students to come from other countries. Immigration in both its legal and illegal manifestations continued to rise to higher levels than ever before in the nation's history.

Although a larger number of highly educated immigrants were on their way, an even greater flow of illegal immigrants enlarged the nations' pool of illiterate or poorly educated residents. The continued emphasis on family reunification also brought large numbers of immigrants who tended to have less education that the original entrants. Educators in the United States needed to be ready to serve an even more diverse clientele in its future.















CHAPTER 3
IMMIGRATION LAWS AND PROPOSITION 187


Introduction

This chapter reviews the major immigrant education laws and policies of the last half of the nineteenth century. It discusses ways in which each are based on precedent policy and how they are associated. Of particular concern are Plyler v. Doe' and California's Proposition 187.2


Background

The earliest immigration laws were designed to protect the populace. Criminals, prostitutes, and other undesirables were prohibited from entering the United States. Exclusionary practices were implemented to keep certain nationalities from entering on a permanent basis. Finally, immigration laws were adapted to achieve acceptable levels of immigration to ensure that the United States could assimilate the new population comfortably.

The immigration laws of the United States divided all people in the world into two groups: "United States nationals" and "aliens."3 Almost all nationals also carried i Plyler v. Doe, 457 U.S. 202 (1982).

2 Proposition 187 was approved by the electors of California on November 8, 1994, as an initiative statute. See 1994 Cal. Legis. Serv., Prop. 187, (Westlaw).
3 Immigration and Nationality Act, (INA), Public Law 82-414, [s 101(a)(3)], 8 U.S.C. [s 1101(a)(3)] (1994), defines "alien" as "any person not a citizen or national of the United States." Since all citizens are nationals, the definition of "alien" could easily read "any person not a national of the United States."

61






62


the title "citizen." Aliens in turn were divided into two subgroups: immigrants and nonimmigrants. A nonimmigrant was any alien who could prove that he or she fell into one of the statutorily enumerated categories of temporary visitors, such as students, tourists, business visitors, or temporary workers.4 All other aliens were immigrants5 and therefore subject to the more rigorous standards applicable to those who sought permanent residence in the United States.

Immigrants themselves were sub-classified. There were those who were

"lawfully admitted for permanent residence,"6 holders of so-called "green cards." And there were those who were here unlawfully, having entered illegally, overstayed, or otherwise violated the terms of temporary admission (undocumented or illegal immigrants). There was an additional hybrid category known as aliens "Permanently Residing Under Color of Law," or PRUCOLs.7 While the definition of PRUCOL varied from one program to another, the term typically encompassed those who had received asylum, some of those who had been paroled from prison into the United States, and miscellaneous others who remained in the United States with the knowledge and permission of the Immigration and Naturalization Service (INS) and whom the INS did not intend to remove. The most general observation was that the major federal and state



4 Immigration and Nationality Act, Public Law 82-414, (INA) [s 101(a)(15)], 8 U.S.C. [s 1101(a)(15)] as amended (1994).

' Ibid.
6 Ibid., [s 101(a)(20)].

7U.S. Commission on Immigration Reform, U.S. Immigration Policy: Restoring Credibility 139-43 (1994) [hereinafter CIR]; includes certain Cubans and Haitians and aliens whose deportations have been withheld or stayed.

s Ibid.






63


benefit programs were open to United States citizens and to those aliens who had been

lawfully admitted as permanent residents.

In addition, several important programs, including Aid to Families with

Dependent Children (AFDC)9, Supplemental Security Income (SSI)0 and Medicaid,"

covered PRUCOLs.'2

To be admitted to the United States in any capacity, an alien needed to prove he

or she was not "likely at any time to become a public charge."'3 A common way to

establish that was to submit an "affidavit of support" from an American sponsor, who

was willing and able to provide financial backing. For purposes of assessment of

financial eligibility under various federal benefit programs, however, a portion of the


9 Aid to Families with Dependent Children (AFDC). The AFDC program provided assistance for basic needs such as food and shelter to qualifying families with children. The families met certain income, immigration status and other qualifications to receive AFDC. The federal government and the states jointly funded the program. Those persons not eligible included undocumented aliens and those undocumented aliens who became legalized as a result of 1986 IRCA.

Io Supplemental Security Income (SSI). Aged, blind, and disabled persons whose income fell below specified levels received cash payments under the Supplemental Security Income program. As SSI eligible residents were automatically eligible for Medicaid, any change in such status and denial of Medicaid had an impact on health care costs for local providers.

" Medicaid. Medicaid was a joint state/federal program designed to provide medical assistance to financially needy individuals. The program was an automatic benefit for those individuals who received AFDC or SSI direct assistance. Potential recipient families met certain income, citizenship and other qualifications to receive Medicaid. Individuals not eligible included undocumented aliens and former undocumented aliens who became legalized as a result of the 1986 IRCA. Except for emergency Medicaid coverage which included emergency labor and delivery.

12 CIR.

13 Ways And Means Committee Print: 104-14 [1996 Green Book] "Appendix J. Noncitizens" The Personal Responsibility and Work Opportunity Reconciliation Act and Associated Legislation, 1996, (25 February 1997). "Public charge" was a term used in immigration law to describe someone who was, or likely to become, dependent on public benefits. In practice, public charge considerations have historically been a factor in the admissibility of aliens.






64

alien's income and resources was "deemed" to include those of the affiant for a certain number of years after the alien's admission. 14

In contrast to both lawfully admitted permanent residents and PRUCOLs,

undocumented immigrants were ineligible for federal and state benefit programs.'5 There were some exceptions, typically for emergency services, those services for which denial would endanger the general public, and any services that had been held to be constitutionally required. Examples included emergency medical, immunization programs, and public education.6

In the movement to strip undocumented immigrants of the few public benefits for which existing laws left them eligible, there were many generic arguments already discussed. There were also a number of additional points specific to undocumented immigrants.'7

The principal argument for withholding public benefits from undocumented immigrants was that they were in the United States illegally.' As wrongdoers, the argument went, they had no moral claim to receive services from the very government whose laws they had transgressed. The analogy was to a trespasser seeking support from the landowner whose property he or she had wrongfully entered.19 14 Ibid., pp. 129-31 (three years for AFDC and Food Stamps; five years for SSI). '5 CIR., pp. 115-17.
'6 Ibid.
7 42 UCLA L. Rev. 1453, *1467.
8 Ibid., p. 29.
'9 Ibid.






65

For similar reasons, some lawmakers saw the denial of public benefits as a

demonstration of governmental disapproval or even resolve. Without restrictions, it was argued, the government was sending mixed signals. Restrictions confirmed that the government took its immigration laws seriously.20

All of these arguments were legitimate, and most people agreed that the

government should not extend to undocumented immigrants the full range of benefits available to those who were here legally. However, few people denied that services such as police or fire protection, or emergency medical care were necessary. If pressed, most people thought that undocumented immigrants should receive some benefits but not others. So, the question was where to draw the line.21

In addressing the question, various arguments for extending certain benefits to undocumented immigrants were considered. It was not a reasonable assumption to believe that all undocumented immigrants were wrongdoers. Until their cases were adjudicated, their legal status was not settled. Many undocumented immigrants had asylum claims pending for a considerable length of time. Others had legitimate reasons to be in the United States. Further, whatever moral conclusions one reached with respect to adult undocumented immigrants, children were not viewed as morally culpable for accompanying their parents to the United States rather than staying behind, unaccompanied.22


20 Ibid.
21 Ibid.
22 Ibid.






66


One of the generic arguments against public benefits for immigrants was that such benefits were an unwelcome lure. In the case of undocumented immigrants, a counterargument was that the legally available benefits were too meager to have had that effect; a desire to work, a desire to rejoin their families or to escape persecution, were far more believable explanations.23

The public benefits that gave rise to the debate in areas as vital as health and

education were central to life opportunity. Depriving a morally innocent child of medical care or an education was considered extreme. Moreover, denying certain benefits to otherwise eligible undocumented immigrants at times caused tangible harm to United States citizen children in the same household, a problem to which even the Commission on Immigration Reform had called attention.24 Immigration Laws

Immigration law and policy changed substantially during the 1900s. Historically, immigration policy in the United States was based on a per-country quota system. The first true codification of immigration law resulted from the passage of the Immigration and Nationality Act of 1952.25 This was the initial attempt to give priority to those immigrants with highly valued skills. Family reunification became a priority in 1965 with the Immigration and Nationality Act amendments.26 This act also abolished the national quota system, eliminating national origin, race, or ancestry as a basis for 23 Ibid., p. 30.
24 42 UCLA Law Rev. rev. 1470.
25 Immigration and Nationality Act, Public Law 82-414, (1952). 26 Immigration and Nationality Act Amendments of October 3, 1965, (79 Stat. 911).






67

immigration to the United States. The 1986 Immigration Reform and Control Act27 provided for employer sanctions against businesses that employed undocumented aliens and legalization for qualified undocumented aliens. Immigration policy during the decade of the 1990s was based on The Immigration and Nationality Act, which prioritized eligibility on the basis of family reunification along with the need for immigrants with specific skills.28

The Immigration and Nationality Act passed in 1952 over President Truman's veto and remained the foundation for U.S. immigration law at the end of the twentieth century, although it had been amended numerous times.29 Among the most far-reaching of those amendments, the 1965 Immigration Act marked change in U.S. immigration policy. From the decade of the 1920s until passage of the 1965 law, American immigration policy had operated on a strict per-country quota system. The 1965 law shifted that policy to a system that emphasized family reunification and employment or job skills needed in the U.S. labor market.30 Besides family-based and employment based immigration, refugees were expressly allowed to immigrate to the United States.

The Refugee Act of March 17, 198031 was prompted in large part by the arrival of more than 400,000 refugees from Southeast Asia between 1975 and 1980. The legislation sought to give refugee policy greater consistency by allowing for both a 27 Immigration Reform and Control Act of 1986, Public Law 99-603. 28 Immigration and Nationality Act Amendments of October 3, 1965, (79 Stat.911) as amended by the Immigration Act of 1990, P.L. 101-649, (104 Stat. 4978). 29 James G. Gimpel and James R. Edwards Jr., 1999. The Congressional Politics of Immigration Reform, Needham Heights, MA, Allyn & Bacon.
3o Ibid., p. 60.
3' Refugee Act of March 17, 1980, Immigration and Nationality Act, [101(a)(42)(A)I.






68


regular flow of refugees and emergency admissions. The Refugee Act of 1980 defined "refugee" in U.S. law; it then became section 101(a)(42)(A) of the Immigration and Nationality Act.32 The 1980 act provided funding for all areas of refugee settlement, and allowed access to such programs as AFDC, ESOL, and vocational and employment related training.33

On November 6, 1986, the Immigration Reform and Control Act34 tackled the

growing issue of illegal immigration. In hopes of stemming the entry of illegal aliens, the 1986 act imposed penalties on employers who knowingly hired undocumented workers. It also allowed illegal aliens who had lived in the United States since 1981, as well as undocumented agricultural workers, to become citizens. Under this amnesty program, more than 2.8 million illegal aliens out of approximately 3 million applicants gained legal status by the time all cases were resolved.

The Immigration Act of November 29, 199035 raised the limit on annual

admissions to 675,000 immigrants. (The 1965 act had set the ceiling at 290,000.) The 1990 law also nearly tripled the number of immigration slots reserved for newcomers with prized job skills and their families. When the revision took effect in 1995, over 71 percent of immigration visas went to family members of U.S. citizens and legal residents; about 21 percent were set aside for well-trained workers and their families; and about 8


32 Immigration and Nationality Act, Public Law 82-414. The Immigration and Nationality Act has been amended many times. When Congress enacted a law, it generally did not re-write the entire body of law, or even entire sections of a law, but instead added to or changed specific words within a section. These changes were then reflected within the larger body of law. 33 The Unfair Burden, Florida Governor's Office, March 1994. Immigration Reform and Control Act of 1986, Public Law 99-603.






69


percent were available for immigrants from countries that had received relatively few visas in previous years.36


Table 3-1 Immigration to the U.S. in 1992

Relatives of U.S. citizens and 520,000
permanent residents
Skilled workers and their families. 140,000 Citizens from countries with 40,000
few recent immigrant visas
Political refugees 141,000 Illegal Aliens (estimate) 200,000 TOTAL 1,041,000

Source: U.S. Immigration & Naturalization Service, 1993 Illegal Aliens

Although exact numbers were difficult to determine, research indicated that more than 200,000 illegal aliens settled permanently in the United States each year.37 Many arrived legally as students or tourists and then stayed beyond the limitations of their visas. Others used false documents to slip past immigration officials. The majority, however, entered the country by crossing the U.S.-Mexican border, making the problem of illegal aliens, in many respects, a question of foreign policy.

Illegal aliens and border control were relatively new concepts in the history of U.S. immigration. Until 1968, there were no official limits on immigration from countries in 35 Immigration Act of 1990, P.L. 101-649. 104 Stat. 4978. The 675.000 level was to consist of 480,000 family-sponsored, 140,000 employment-based, and 55,000 "diversity immigrants." 36Gimpel and Edwards, The Congressional Politics. 17 Ibid.






70


the Western Hemisphere. There was not even an attempt to monitor the borders until 1924.38 Mexican workers, in particular, were a critical part of the labor force in the southwest, but they generally worked in agriculture during the growing season and then returned to their homes in Mexico. From the beginning of World War II, as American recruits were sent overseas until 1964, the Bracero Program39 gave this arrangement official status, permitting the entry of 4 million to 5 million temporary agricultural workers to fill the farm labor shortage.4

Since the 1960s, both the forces pushing illegal aliens northward and those

attracting them to the United States had grown stronger. In 1972, the INS caught about 500,000 illegal aliens crossing the border.4' In 1986, the year that the Immigration Reform and Control Act42 was enacted, that figure had increased to nearly 1.8 million. The composition of the illegal alien population had changed in the previous two decades. Although the typical illegal alien was still a single young man, more women and children were entering the country illegally as well. Less than one-quarter of illegal aliens worked in agriculture. The majority lived and worked in large cities. In addition, Mexicans made up a smaller proportion of illegal aliens than in the past. Increasingly, illegal aliens were arriving from Central America, the Caribbean, and East Asia. In 1984, for example, 38 The Immigration Act of May 26, 1924 (43 Statutes-at-Large 153), together with the Immigration Act of 1917 (39 Statutes-at-Large 874), governed American immigration policy until 1952. At the same time, Congress established the Border Patrol in response to the concern with increased illegal movement across the borders with Canada and Mexico.
39 In 1942 the Bracero Program ( also know as the Mexican Farm Labor Supply Program) was begun in order to allow entry to agricultural workers on a temporary basis. 40 Gimpel and Edwards. Congressional Politics, p. 71. 41 Peter H. Schuck, The Meaning of 187: Facing Up to Illegal Immigration, The American Prospect No. 21, Spring 1995.
42 Immigration Reform and Control Act of 1986, Public Law 99-603.






71

the Border Patrol in Texas arrested would-be immigrants from 43 countries.43 The 1986 Act" was intended to cut off the flow of illegal aliens by penalizing employers who hired them. In fact, illegal aliens in many areas had little difficulty obtaining false documents to qualify for jobs that were readily available.

The cost of providing social services to illegal aliens was also part of the border control debate. Although nearly 3 million illegal aliens were legalized by the 1986 act, census figures indicated that 3 million to 4 million illegal aliens lived in the United States according to 1990 Census figures.45 Like all immigrants in general, the illegal aliens were concentrated in a few states, primarily California, Texas, Florida, Illinois, and New York.

In 1982, the Supreme Court ruled that states must provide illegal aliens with schooling.46 That decision, along with the growing proportion of women and children among the illegal alien population, added to the education and health care budgets of several states.



43 Schuck, Illegal Immigration.

44 Immigration Reform and Control Act of 1986, Public Law 99-603. 45 U.S. Census, 1990.

46 Plyler, 457 U.S. 220 (1982).






72






Top Ten States Where Illegal Aliens Reside October 1996
(in thousands)

2500


2000


1500 1000


500


~ b' e ~sP) ...... .




Source: U.S. Immigration and Naturalization Service, 1996 Figure 3-1 Top Ten States Where Illegal Aliens Reside


The same states that were burdened by the social service needs of illegal aliens, however, were also home to the businesses that employed them. Some employers contended that Americans were unwilling to work hard for low wages. Whether stitching pants in a clothing factory, washing dishes in a restaurant, or harvesting fruits and vegetables, illegal aliens had become a crucial element of the work force in many areas. Critics of the practice maintained that some employers preferred hiring undocumented workers because they were least likely to complain about low pay and poor working






73


conditions. In fact, law enforcement officials reported that sweatshops operating outside the law in the garment industry made a comeback in Los Angeles and New York City thanks to the availability of illegal alien labor.

The courts had long prohibited the states from discriminating against legal

immigrants, largely on the grounds that the state's authority in this area was subordinate to the federal government's. But, the courts had never addressed illegal immigration. It simply had not been a major issue.

Illegal immigration first became an issue in the early 1960s. Immigration and

Naturalization Service (INS) arrests-a limited indicator of illegal entries--swelled from 1.6 million during the decade of the 1960s to 8.3 million in the decade of the 1970s, and then continued to rise in the early 1980s.47 When states and localities sought to protect their education and health care budgets by imposing restrictions on the newcomers' access to benefits, the courts could no longer ignore the issue.

Plyler v. Doe48 stands at the apex of immigrants' rights in the United States.49 This class-action suit brought on behalf of undocumented Mexican children living in Texas. Upholding the ruling of a lower court, a 5-4 majority canceled a statute that 47 Schuck, Illegal Immigration, pp. 85-92.

4s Plyler, 457 U.S. 202 (1982). Plyler v. Doe" was a class action, filed in the United States District Court for the Eastern District of Texas in September, 1977, on behalf of certain school-age children of Mexican origin residing in Smith County, Texas, who could not establish that they had been legally admitted into the United States. The action complained of the exclusion of plaintiff children from the public schools of the Tyler Independent School District. The Superintendent James Plyler, and members of the Board of Trustees of the School District were named as defendants; the State of Texas intervened as a partydefendant. After certifying a class consisting of all undocumented school-age children of Mexican origin residing within the School District, the District Court preliminarily enjoined defendants from denying a free education to members of the plaintiff class. In December 1977, the court conducted an extensive hearing on plaintiffs' motion for permanent injunctive relief. 49 Michael A. Olivas, Storytelling Out of School: Undocumented College Residency, Race, and Reaction, Hastings Law Quarterly, Vol. 22 (Summer, 1995), 1019-1086.






74

withheld from local school districts any state funds for the education of any child who was not legally admitted into the United States. There the Court held that a Texas statute that effectively denied undocumented children a public-school education violated the Fourteenth Amendment's Equal Protection Clause.5so Bearing the extra expense of providing an education and services to undocumented children was felt by Texas voters to be extremely unfair in light of the fact that these children and their parents were not supposed to be in the state in the first place.5'


Proposition 187

Out of similar frustration over the expenses of illegal immigration to the state, the voters of California enacted Proposition 187 in 1994.52 The statute was a dramatic effort to drive out undocumented aliens and to deter their entry by cutting them off from medical and other public services and depriving their children of an education.53 It was described in the official ballot argument as "the first giant stride in ultimately ending the ILLEGAL ALIEN invasion." The text read as follows.


PROPOSITION 187 (Text of Proposal)

Any person who manufactures, distributes, or sells documents to conceal the true citizenship or resident alien status of another person is guilty of a felony, and shall be punished by imprisonment in the state prison for five years or by a fine of seventy-five thousand dollars.... Any person who uses false documents to conceal his or her true citizenship or resident alien status is guilty of a felony, and shall be punished by imprisonment in the state

5 Plyler, 457 U.S. 202 (1982).
sh Ibid.

52 Proposition 187 was approved by the electorate of California on November 8, 1994, as an initiative statute. See 1994 Cal. Legis. Serv., Prop. 187 (Westlaw).
5 Ibid.






75

prison for five years or by a fine of twenty-five thousand dollars....
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 persons who are otherwise authorized to be present in the United States.... In order to carry out the intention of the People of California that, excepting emergency medical care as required by federal law, only citizens of the United States and aliens lawfully admitted to the United States may receive the benefits of publiclyfunded health care.s4

Basically, Proposition 187 made illegal aliens ineligible for public social services, public health care services, and public school education at elementary, secondary, and post secondary levels.55 It also created substantial criminal penalties for the manufacture, distribution, sale, or use of false citizenship or permanent residence documents. It required state and local law enforcement officials to cooperate with the INS in identifying and apprehending undocumented aliens.56

Proposition 187 was a combination of different policies that sought to stem the flow of illegal aliens into California. It was designed to encourage the state's roughly 1.4 million illegal residents to go home, and expel the rest. The most controversial provisions barred anyone who was not a citizen, legal permanent resident (green card holder), or legal temporary visitor from receiving public social services, health care, and education. The provisions differed slightly for each service, but they generally imposed three duties on all service providers: the verification of the immigration status of all who sought services, the prompt notification of state officials and the INS of anyone who was "determined or reasonably suspected to be" in violation of immigration laws, and the 4Ibid.
5 Schuck, Illegal Immigration, pp. 85-92.





76


notification of the alien (or in the case of children, their parent or guardian) of their apparently illegal status.57 Proposition 187 was no ordinary law; it provided that the legislature could not amend it "except to further its purposes" and then only by a recorded super-majority vote in each house of the legislature or by another voter initiative.

California's Proposition 187 contained several components aimed at stopping illegal immigration. It strengthened federal welfare laws that already denied most benefits to illegal aliens. A provision of 187 built on existing federal law relating to the use or sale of fraudulent documents and gave the state an extra weapon to combat such activities. Proposition 187 also required local, state, and federal agencies to share information.58

Proposition 187 established a number of principles in relation to public education. First, it aimed to deter future illegal immigration for free education. The problem of educating illegal aliens at taxpayers' expense related not only to illegal aliens already here, but to those who would come in the future. Second, it proposed that education should be in the person's home country. Third, the initiative addressed the financial problems caused by providing illegal immigrants with free education. The costs of educating non-English speaking immigrants were higher due to their need to learn English.


56 Thomas A. Alienkoff, David A. Martin, and Hiroshi Motomura. (1998). Immigration and Citizenship: Process and Policy. Fourth Edition. West Group, St. Paul, Minn. 57 Schuck, Illegal Immigration, pp. 85-92.
58 Ibid.






77

The statute was attacked immediately as unconstitutional in several lawsuits, and its operation shackled by restraining orders. On Dec. 14, 1996, U.S. District Court Judge Mariana R. Pfaelzer of the Central District of California issued an oral decision to enjoin the major provisions of Proposition 187 until trial.59


Constitutional Violations

Based on Judge Pfaelzer's statement, the written decision/order, when issued,

found that much of the statute violated two of the provisions of the Constitution -- (1) the Supremacy Clause,6 by stepping on ground preempted by federal immigration law; and

(2) the Fourteenth Amendment, first, by effectively ordering the deportation of California residents without hearings or other due process of law and, second, by denial of free education to undocumented children, that Amendment's Equal Protection clause.61

Proposition 187 prohibited public social services to those who could not establish their status as a U.S. citizen, a lawful permanent resident, or an "alien lawfully admitted for a temporary period of time."62 Only persons in those categories could receive healthcare services from a publicly funded health care facility, "other than emergency medical care as required by federal law."63 Anyone else was to be denied the requested services or other benefits, directed in writing to "either obtain legal status or leave the United 59 "Initiative on Aliens Suffers Its Biggest Setback Yet," New York Times, Dec. 15, 1994, A18. 60U.S. Constitution, Article VI.
61 Stanley Mailman, January 3, 1995. California's Proposition 187 and Its Lessons, New York Law Journal (p.3, col.1).
62 Proposition 187, Sec. 5. The provisions that generate most benefits at issue are federal laws that bar aliens who are not admitted as lawful residents or otherwise permanently residing here under color of law. 63 Ibid., Sec. 6.






78

States" and be reported to the authorities, including the Immigration and Naturalization Service (INS).64

Proposition 187 also limited attendance at public schools to U.S. citizens and to aliens lawfully admitted to the United States for permanent residence or otherwise authorized to be here.65 Whenever school districts reasonably suspected a violation, they had only 45 days to so notify INS and other authorities and to advise parents that schooling would be cut off in 90 days.66

The constitutional challenge to Proposition 187 rested mainly on the Plyler67 precedent. Writing for the Plyler majority, Justice William Brennan argued that the Texas law would inevitably harm children. These children would eventually obtain legal status in this country, yet would be "permanently locked into the lowest socioeconomic class." Brennan acknowledged that the state had some leeway in such matters. Under equal-protection principles, illegal alien status was not a "suspect class' like race or religion, and education was not a "fundamental right." Hence, it did not require heightened judicial scrutiny. Nevertheless, Brennan said, a law that denied children "the ability to live within the structure of our civic institutions can hardly be considered rational unless it furthers some substantial goal of the State.' "

Brennan conceded that keeping illegal aliens out of the state might be a legitimate state goal. But the trial court found that the Texas law had neither the purpose nor the 64 Mailman, 187 and Its Lessons, p.3, col. 1.
65 Proposition 187, Sec.7.

* Mailman, 187 and Its Lessons, p.3, col. 1.
67 Plyler, 457 U.S. 202 (1982).

" Schuck, Illegal Immigration, pp. 85-92.






79

effect of doing that, and Brennan agreed. The Texas law might have saved some money, according to Brennan, but Texas failed to establish that illegal aliens imposed a significant fiscal burden on state coffers or that their exclusion would improve the quality of education. In addition, Brennan said, federal immigration policy was not concerned with conserving state educational resources, much less with denying an education "to a child enjoying an inchoate federal permission to remain."69 (This referred to the possibility that an illegal alien might obtain discretionary relief from deportation.) All the Texas law would serve to do, Brennan said, was to promote "the creation and perpetuation of a subclass of illiterates,"70 who would be socially dysfunctional and a burden to society. That, he said, clearly was not something the states were allowed to do.

The parallels from Plyler to Proposition 187 were obvious. Both would in effect bar undocumented children from the public schools; if anything, California's new ban on enrolling such children was even more categorical and rigid than the Texas statute invalidated in Plyler. Any court that accepted Brennan's premises in Plyler would have had difficulty sustaining Proposition 187.7

If aliens remained in the United States, paid taxes and became part of the

community, their misfortunes had to be dealt with, for their sake and that of society. A lesson from Plyler was that children could not be punished for evasion of immigration laws, and, if they were allowed to remain here, they would be educated (and otherwise cared for) in the general community interest. A second lesson was that aliens came to


69 Ibid.

To Ibid.
71 Ibid.






80

the United States primarily to work-not for schools or medical care or other public benefits.72


Conflict with Federal Laws

The 5-4 opinion in Plyler brought out two conflicting themes, variations of which appeared in the Proposition 187 litigation. First, the undocumented status of aliens might itself have been sufficient basis for denying governmental benefits that it provided to others. However, control of immigration was within the exclusive purview of the federal government. While "the States did have some authority to act with respect to illegal aliens, at least where such action mirrored federal objectives and furthered a legitimate state goal," the disability imposed on the students did not correspond with "any identifiable congressional policy," and, more important, the classification of undocumented students "did not operate harmoniously within the federal program."73

The compelling consideration for the Plyler Court was how the statute hurt

innocent children and society. These considerations were conclusive: "Illiteracy was an enduring disability. The inability to read and write would handicap the individual deprived of a basic education each and every day of his life. In determining the rationality of [the statute], one must appropriately take into account its costs to the Nation and to the innocent children who are its victims."74 72 Mailman, 187 and Its Lessons, p.3, col. 1.
73 457 U.S. at 225-26, citing De Canas v. Bica, 424 U.S. 351 (1976), as cited in Mailman, 187 and Its Lessons, p.3, col..
74 457 U.S. at 222, 223-24. Constrained by its earlier holding in San Antonio School District v Rodriguez, 411 U.S. 1 (1973), that education is not a "fundamental right," and given its opinion that undocumented status is not a "constitutional irrelevancy," the Court applied an intermediate rather than strict scrutiny test.






81


How did Plyler control the constitutionality of Proposition 187? From Judge Pfaelzer's verbal decision, Plyler directly affected only those who sought to enter or remain in elementary or secondary schools; those in the university system would not be protected.75 However, elements of Plyler were brought into a more general constitutional attack on Proposition 187, relating to the supremacy of federal legislation over the subject of immigration. Congress unquestionably had authority to legislate on immigration and had exercised that power comprehensively in "regulating authorized entry, length of stay, residence status, and deportation," and in the treatment of aliens otherwise.76 In defining who received benefits, Congress had positioned immigration classifications into the framework of various public assistance programs.77

Additionally, under Proposition 187, frontline, untrained state employees decided who "had apparent illegal status" or was here "in violation of law" and therefore ineligible for benefits.78 Those who conveyed the bad news were deputized to direct the applicant to leave the country, effectively to issue what could have easily been taken as a deportation order. Yet, the Immigration and Nationality Act provided that such an order could be issued only by an immigration judge after a hearing on a record, with the government bearing the burden of proof, and the alien having a right to counsel.79 Furthermore, PRUCOL (permanent resident) aliens by definition had INS permission to 7s 457 U.S. at 219.

76Gonzales v. City of Peoria, 722 F2d 468, 474-75 (9" Cir. 1983). 77 Janet M. Calvo, "Alien Status Restrictions on Eligibility for Federally Funded Assistance Programs," 16 New York University Review of Law & Social Change, 395 (1987-88).
7 Proposition 187, Sec. 5-7.

79 INA Sec. Sec. 242(b), 292, 8 USC Sec.Sec. 1252(b), 1362.






82

stay in the United States; and many aliens, although deportable, could have been granted discretionary relief that allowed them to remain.80s Here, too, the California statute conflicted with federal legislation.8'


Due Process

Plaintiffs also argued that Proposition 187's procedure violated the Fourteenth

Amendment's Due Process clause by threatening to take away valuable rights or interests without a prior hearing. Public assistance, for example, was an interest that could not be cut off without a pre-termination hearing.82 Due process also required a hearing before a deportation order could be entered.83 Proposition 187 therefore violated the Constitution when it instructed state employees to terminate a woman's pre-natal care or turn a child out of school and then directed the parties to leave the United States -- without a hearing or other means of evaluating their rights.84

The same equal protection, supremacy and due process provisions that controlled Proposition 187, challenged other states as they considered what to do about undocumented aliens. And a state law must also have passed muster under its own constitution. For example, a provision of New York's constitution that mandated support of the needy, "unequivocally prevents the Legislature from simply refusing to aid those


8 See, e.g., INA Sec.Sec.208, 243(h), 24, 245, USC Sec.Sec.1158, 1252(h). s1 Mailman, 187 and Its Lessons, p.3, col. 1.
82 Goldberg v. Kelly, 397 U.S. 254 (1970).
83 Wong Yang Sung v. McGrath, 339 U.S. 33 (1950), modified, 339 U.S. 908. Mailman, 187 and Its Lessons, p.3, col. 1.






83

whom it has classified as needy."85 Under California's own equal protection provision, education was treated as a matter of "fundamental interest" whose "unique importance.. Sin California's constitutional scheme required careful scrutiny of state interference with basic educational rights."86 That was why some California plaintiffs attacked Proposition 187 in their state court, urging the Plyler analysis.87

Proposition 187, like the "Official English" laws approved in California and

elsewhere since the mid-1980s, was a symbolic message to policy elites. These measures were grand gestures with few practical consequences other than to convince politicians that many voters viewed American society as increasingly alien (literally) and uncontrollable. Voters responded angrily to the vivid television images of Mexican officials denouncing the measure and to the marchers in Los Angeles waving Mexican flags and protesting its limits on welfare benefits. On election day, the voters indicated that illegal immigrants, industrious as they were, were part of the problem and that Proposition 187, crude as it was, was part of the solution. It was no solution, of course, but that only underscored the need for a sounder political response in order to forestall future initiatives of this kind.

The U.S. Congress was far less constrained than the states in the classification of aliens, having a preeminent role in their regulation.88 As the Supreme Court has said, "Over no conceivable subject is the legislative power of Congress more complete."89 85 See New York Constitution, Article XVII; Tucker v. Toia, 43 NY2d 1, 8 (1977). 86 See California Constitution, Article I, Sec.7(a). See also Serrano v. Priest, 18 Cal3d 728, 767-68 (1976). 87 Mailman, 187 and Its Lessons, p.3, col. 1.

88 See Toll v. Moreno, 458 U.S. I, 10 (1982).
89 See Mathews v. Diaz, 426 U.S. 67 (1976).






84


It made little sense for Congress to legislate in the areas of immigration and

public assistance without reviewing the precedent immigration laws and policies under which the affected aliens were here; and the reduction in federal programs was no saving if it simply shifted their costs to the states and communities where the aliens and their families lived.9


Immigration And Education

Many states, particularly those with the highest percentages of illegal immigrants were concerned over the expenses they incurred by providing public social services and educational benefits to illegal immigrants. Only the federal government could enact immigration policy,9' to which states must adhere. Some state challenges to federal immigration policy focused considerable public interest on the immigration issue, both legal and illegal, and the lack of adequate funding to carry out the required mandates of the policies.

Because the federal courts made immigration legislation, the states had the

obligation to follow the mandates. Little if any funding followed policy, often leaving the states with the largest numbers of legal as well as illegal immigrants, with more than their share of the overwhelming costs of educating the children.

In the wave of anti-immigrant sentiment, other states had made proposals to bar undocumented immigrant students from attending public schools, counter to federal efforts to keep students in school rather than out. Virginia, for instance, required its



9 See Plyler v. Doe, 457 U.S. 202, 225 (1982). Cf. DeCanas v. Bica, 424 U.S. 351(1976). 9' Ibid.






85

schools to verify the legal status of all students over 18 years of age enrolled in English as a Second Language programs, and of all students over 20 who entered the U.S. after the age of 12, or risk losing some state funding.92

An initiative similar to Proposition 187 was proposed by Rep. Elton Gallegly93 as an amendment to the omnibus immigration reform bill (H.R. 2202) in 1996. The amendment attempted to combine two entirely different issues into one bill. Joining efforts to secure our borders with reforms to our system of legal immigration served only to confuse the debate.94 It played on the public's understandable concern over illegal immigration but twisted that concern into the misguided notion that all immigration was harmful and all immigrants were undocumented, sneaking into our country by night. Neither notion, of course, was true, but dealing with illegal and legal immigration in one bill served to fuel hostility and even prejudice toward all immigrants. The amendment would have authorized states to deny public education to the children of illegal aliens. It would have denied American citizens and legal permanent residents the opportunity to bring close relatives into the United States. H.R. 2202 would also have increased the income a family needed to bring a family member up to a level that denied 40 percent of Americans the chance to reunite with loved ones.95 The provision was passed by the full House of Representatives but was eliminated by the conference committee--because no vote had been taken in the Senate on this issue. But the measure was again passed as a 92 Ibid.
9 Charles Levendosky, "The Politics of Turning Children into Victims," Casper (Wvo.) Star Tribune, May 1996.
9 Gimpel and Edwards, Immigration Reform.
95 Serrano, House of Representatives, .






86

separate bill in the House.96 One version of the proposal would have denied public education to children who were illegal aliens themselves, rather than all children of illegal aliens (which would have included some U.S. born, citizen children). The bill failed to address the fact that employment was the primary reason immigrants, whether legal or illegal, came to this country.97

Supporters of the Gallegly Amendment argued that America's education system, like other social-service programs, attracted a disproportionate number of immigrants and that the cost of educating such children was too high in an era of tight school budgets. Opponents of the measure denounced it as cruel; hundreds of thousands of children would potentially be turned away at the schoolhouse door.98 A portion of the Gallegly amendment read:

"Congress declares it to be the policy of the United States
that ... aliens who are not lawfully present in the United States not be entitled to public education benefits in the same manner as
United States citizens and lawful; resident aliens. ."99


The House bill allowed states to make their own determination about whether the public schools would be open to children of illegal immigrants. The amendment did not provide for Immigration and Naturalization Service officials to enter schools and it did not provide funds for schools to hire people. The public schools have traditionally


9 Charles Levendosky, "The Politics of Turning Children into Victims," Casper (Wvo.) Star Tribune, May 1996.
97 Gimpel, James G. and Edwards, James R. Jr., 1999. The Congressional Politics of Immigration Reform, Needham Heights, MA, Allyn & Bacon.
98 "Illegal Immigrant Children: In or Out of Public Schools?" Education Week, April 1996. .
SGallegly Amendment, H. R. (2022), 1996.






87

educated all the children who came through their doors. The Gallegly provision would have turned teachers and school administrators into substitute INS officers?

Adding a new dimension to the issue was the North American Free Trade

Agreement (NAFTA)lol that had been negotiated by the United States, Mexico, and Canada. The agreement created a regional trading bloc of 370 million people by lowering trade barriers among the three countries. The agreement was designed to reduce the flow of illegal aliens by creating better-paying jobs in Mexico. Even though the trade agreement was approved, some experts on illegal immigration argued that the United States needed to focus greater attention on developing the economies of Mexico and its neighbors to keep potential illegal aliens at home. They maintained that increased foreign aid to the countries of Latin America and incentives for low-wage American industries to invest in the region were necessary to generate more local jobs. A hope of this measure was the elimination of the need for further legislation on the illegal immigrant issue.

American society had changed, and part of the "difference" sustained those Americans still confident about our assimilative capacity--some of which mistakenly assumed that mass immigration was a constant historical fixture of American society

As the influx of immigrants continued and the number of immigrant children

enrolled in the public education system grew, school systems expanded along with them. Statistics showed that, in spite of the many obstacles immigrant children overcame as new students in a new country, they persevered and some did as well if not better than 10 Charles Levendosky, "The Politics of Turning Children into Victims," Casper (Wyo.) Star Tribune, May 1996
1O1 North American Free Trade Agreement, August 1992.






88

U.S. natives. As they completed their public education, many chose to pursue their education further and enrolled in colleges and universities. Although immigrants were less likely to have graduated from high school, they were more likely to graduate from college when compared to the U.S. native population.102

Justice Brennan'o3 used the inherent difficulty of immigration control as a

justification for making it even more intractable. He assumed that exclusion from the schools was a wholly ineffective way to influence immigrants' behavior, yet it was surely true that at least some parents were less likely to immigrate if they knew their children would be denied schooling. Illegal aliens always had alternatives. They could return home or refrain from coming in the first place. These options seemed harsh but they followed directly from the premise of national territorial sovereignty, a premise that the Court had always affirmed.14

While the federal government moved to curb illegal migrants, it never cut off many of their benefits, notably including public education in federally assisted schools and emergency Medicaid services. The courts could have taken this inaction to mean that Congress remained satisfied with Plyler and did not wish to undermine the decision's rationale.'o5

Political leaders needed to recognize that illegal immigration was not an

unmitigated evil and that immigration enforcement competed for resources with other


102Schuck, Illegal Immigration, pp. 85-92.
10o3 Ibid.

'04 Ibid.
105 Ibid.






89


social goals. Although it was hard to admit that the U.S. tolerated some lawbreakers as a matter of policy, the fact was that it did--and always would. The U.S. was a large country with relatively low population densities even in the cities, and with a vast economy that needed more unskilled labor than U.S. nationals were willing to supply at existing wage levels. It continued to assimilate a significant number of illegal aliens so long as the costs were not too high or too localized. 106

If the enforcement policy "allowed" illegal aliens to enter and remain long-term (but illegal) residents, then Brennan was surely right: there was little point, and even less justice, in consigning them to lives of ignorance, dependency, and discrimination by denying them education--a denial that would injure not only them but the American communities in which they would live and work. For much the same reason, they were permitted to receive emergency medical care. 107

But misguided as such measures as Proposition 187 and the Gallegly Amendment were, they did have the effect of forcing us to consider anew what it meant for the U.S. to be a nation of immigrants at a time when the core values of legality, national sovereignty, and self-reliance were under extraordinary pressures from within and without.

Since immigration policy, both legal and illegal, was the duty of the federal

government, it was unfair to make states like Texas, California, and Florida, which bore the burden of most illegal immigrants, pay for the government's federally mandated services. Because of the government's inability to control effectively the flow of illegal "06 Ibid.
107 Ibid.






90


immigrants crossing the border, it should have reimbursed these states for the expenses incurred in providing services to illegal aliens.

Justice Department lawyers indicated that the government spent more than $1 billion a year on immigration enforcement and returned more than one million immigrants to their homelands. The lawyers pointed to those actions as demonstrations that there had been no abdication of federal responsibility.08 Reimbursing the states was only a small portion of what the federal government could have done to relieve the burden that the social and educational needs of illegal immigrants have put on this nation. 19


Florida Immigration and Education

Due to Florida's geographical position, it attracted a disproportionate number of legal as well as illegal immigrants. Florida was the state with the fourth largest illegal immigrant population, behind California, New York and Texas, in 1997.10 This growth in numbers resulted in an increased demand for state services such as emergency health care, education and incarceration, and in turn, increased the state expenditures for providing these services)."'


0" Ibid.

09 Ibid.

n0 Joyce C. Vialet and Larry M. Eig, Immigration and Federal Assistance: Issues and Legislation, Congressional Research Service Issue Brief, April 18, 1996. ". Ibid.




Full Text
xml version 1.0 encoding UTF-8
REPORT xmlns http:www.fcla.edudlsmddaitss xmlns:xsi http:www.w3.org2001XMLSchema-instance xsi:schemaLocation http:www.fcla.edudlsmddaitssdaitssReport.xsd
INGEST IEID E4IJ09VVW_QZWRL4 INGEST_TIME 2014-07-22T22:08:19Z PACKAGE AA00017699_00001
AGREEMENT_INFO ACCOUNT UF PROJECT UFDC
FILES