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December 1994, Volume 1, Number 11

Prop. 187 Approved in California

California voters on November 8 voted 59 to 41 percent to approve Proposition 187, the "Save Our State'' Initiative. Proposition 187 is an initiative statute whose provisions remain state law unless disapproved by a two-thirds vote of the California Legislature or by another initiative.

A federal judge blocked the implementation of virtually all sections of Prop. 187 until at least December 14, citing "a balance of hardship that decidedly tips in favor of" continuing to provide services to unauthorized immigrants. Specifically, the judge said that the initiative may not be constitutional because it does not provide due process, or a hearing before an individual is denied benefits such as schooling or health care. The judge's order prevents California from announcing regulations implementing Prop. 187. Only the sections that impose penalties for making or using false documents were not blocked.

Prop. 187--Major Provisions

Prop. 187 has five major sections. First, it bars illegal aliens from the state's public education systems from kindergarten through university, and requires public educational institutions to begin verifying the legal status of both students (effective January 1, 1995) and their parents (effective January 1, 1996).

California educational institutions today verify the residence but not the legal status of pupils and students. There are no tuition charges for K-12 education. One of California's three higher education systems--the state university system--charges resident illegal aliens lower in-state tuition, while community colleges and UC charge them higher out-of state tuition.

Second, all providers of publicly-paid, non-emergency health care services must verify the legal status of persons seeking services in order to be reimbursed by the state of CA.

Third, Prop. 187 requires that all persons seeking cash assistance and other benefits verify their legal status before receiving benefits. Fourth, all service providers are required to report suspected illegal aliens to California's Attorney General and to the INS, and police must determine the legal status of persons arrested. Fifth, the making and use of false documents is now a state felony.

Prop. 187 is a law whose sections can be implemented individually. On November 9, Governor Wilson ordered that health services for prenatal care be stopped as soon as possible, and that no more unauthorized aliens be enrolled in state-reimbursed long-term health care programs (nursing home care).

The denial of public education to illegal alien children is likely to be the most controversial section of Prop. 187 to be resolved by the courts. The 1982 Plyler v Doe US Supreme Court decision declared that the equal protection clause of the 14th amendment protects everyone within a state's borders, regardless of immigration status. However, the court split 5-4 on whether "equal protection" for illegal alien children included the same education available to US-citizen children. The majority emphasized that education is especially needed to prevent the development of an underclass; the minority argued that the court was making social policy.

Public education is the most costly service used by illegal aliens in California--providing education for the estimated 300,000 to 400,000 illegal alien children in California schools accounts for about half of the estimated $3 billion annual costs of services provided to the estimated 1.7 million illegal aliens in California [California's state budget is $40 billion annually].

Several school districts joined in suits seeking to have the denial-of-public-education part of Prop. 187 declared unconstitutional. This in turn prompted protests and, in a few instances, threats to initiate recall campaigns against public officials who vote to spend taxpayer dollars to fight Prop. 187. In Los Angeles, where 51 percent of the voters supported Prop. 187, there have been threats of recall campaigns against school board members who voted to file a lawsuit seeking to overturn Prop. 187's public school provisions. The State Board of Education on November 21 ordered the preparation of emergency regulations to implement Prop. 187 in the event that the courts lift the injunction that currently prevents its implementation.

There are several what-next scenarios. Governor Wilson and some Prop. 187 supporters argue that unauthorized aliens, unable to receive public services, will leave California. Prop. 187 supporters hope to sponsor similar measures in other states--Arizona, Texas and Florida, setting off, in a Prop. 13-like fashion, a national effort to restrict the access of unauthorized immigrants to public services.

Others predict that Prop. 187, plus stepped up labor law and border enforcement, will primarily discourage additional unauthorized immigrants from entering California. They caution that Prop. 187 should be seen primarily as an eligibility measure, not as a border management or labor market measure.

Finally, there is the possibility that Prop. 187 will be largely a symbolic measure, as was Prop. 63. In 1986, three-fourths of California voters voted to make English the state's "official language." Prop. 63 has had little effect on the manner in which public affairs are conducted in California. If immigration slows and California's economy recovers, there are some who predict that Prop. 187 may be only symbolic.

Joan Biskupic, "Courts Walk Fine Line on Immigration Issues Raised by California Law," A21; Laura Mecoy, "Anti-187 lawsuits in LA bring recall threats," Sacramento Bee, November 20, 1994, A1; Sally Buzbee, "Many Outside CA like anti-immigration law," Associated Press, November 28, 1994.

Prop. 187--The Campaign

The Prop. 187 initiative began with a huge lead in opinion polls--it had a 37-point lead in July, and led among likely voters by 62 to 29 percent in mid-September, 1994. However, by early November, polls indicated that as many likely voters opposed as supported SOS. Most politicians and opinion leaders argued that voters should reject Prop. 187 because it was too blunt an instrument to deal with the complex issue of illegal immigration.

In the week before the election, Governor Wilson, who was re-elected with 55 percent of the vote, asserted that if SOS becomes law, he would require state and local government employees to report suspected illegal aliens as required by SOS. California Attorney General Dan Lungren, who was also re-elected, promised to develop emergency regulations to implement the initiative immediately, but noted that there was no penalty for persons who do not report suspected illegal aliens.

Wilson's campaign bought the only pro-SOS TV ads that were aired, while the anti-SOS campaign used contributions from doctors and teachers to run anti-SOS TV ads. Democratic challenger Kathleen Brown ran out of money for TV ads at the end of her campaign, and toured high school and college campuses, urging students to work to defeat SOS.

President Clinton argued against SOS. According to Clinton, "it is not wrong for you [Californians] to want to reduce illegal immigration. And it is not wrong for you to say it is a national responsibility." Clinton said that "the federal government should do more to help to stop illegal immigration and to help California bear the costs of the illegal immigrants who are there," but urged California voters to reject SOS and allow the federal government to "keep working on what we're doing -- stiffening the border patrol, stiffening the sanctions on employers who knowingly hire illegal immigrants, stiffening our ability to get illegal immigrants out of the workforce, increasing our ability to deport people who have committed crimes who are illegal immigrants." Clinton promised that the federal government would do more to "help California, and other states, deal with incarceration, health and education costs of illegal immigration."

Some observers believe that Clinton may have reduced his chances to carry California in the 1996 presidential race by campaigning so vigorously against Prop. 187. The "white male backlash" against illegal immigration may, these observers say, also manifest itself in attacks on affirmative action and similar programs. A "California Civil Rights Initiative" that would eliminate state affirmative action programs is already being prepared.

The campaign's final days were marked by large numbers of Hispanic students walking out of high school to protest SOS . In the opinion of many Prop. 187 opponents, these protests were counterproductive--the Mexican flags they waved reportedly convinced many undecided voters to support Prop. 187.

The closing days of the campaign were also marked by charges of hypocrisy between US Senate candidates Feinstein and Huffington. Both took tough stands against illegal immigration, and both charged that the other employed an illegal alien maid. Feinstein hired an illegal housekeeper in the early 1980s--before it was unlawful for a US employer to knowingly hire illegal alien workers--and Huffington hired an illegal alien nanny in the late 1980s and early 1990s, when such hiring was unlawful. Some Huffington supporters alleged that illegal aliens voted for Feinstein, who was narrowly re-elected.

Prop. 187--The Vote

A majority of voters in 50 of California's 58 counties supported Prop. 187--the exceptions were eight San Francisco Bay Area counties. According to exit polls, 64 percent of whites, 57 percent of Asian-Americans, 56 percent of African-Americans, and 31 percent of Latinos voted in favor of Prop. 187. Of those voting in favor of Prop. 187, 78 percent agreed that "it sends a message that needs to be sent" and 51 percent agreed that "it will force the federal government to face the issue." Some 40 percent of voters in one exit poll said that they voted primarily because Prop. 187 was on the ballot.

Of those voting against the measure, 60 percent agreed with the statement that it "doesn't solve the problem" and about 40 percent agreed that "it would throw children out of school" and that "it is racist/anti-Latino."

California's population is 57 percent white, 25 percent Latino, nine percent Asian-American, and seven percent African American. However, voters on November 8 were 75 to 80 percent white, eight to 10 percent Latino, four to five percent Asian-American, and 10 percent African-American.

In Texas, only 35 percent of that state's 1.3 million registered Hispanic voters cast ballots. Hispanic voters supported Democratic gubernatorial candidate Ann Richards three to one over Republican George W. Bush. A study by Rhino Information Systems concluded that the 1994 election will problably be the last time Democrats can count on the Hispanic vote, as Hispanics are becoming more conservative and more Republican. Hispanic households with incomes over $27,000 per year, for example, are more likely to vote Republican than Democratic. Exit polls in Texas found that Hispanics favor increased border patrols to halt illegal immigration, but they oppose Prop. 187-like measures.

After Prop. 187-- Reactions

Prop. 187 was based on the theory that changes in immigrant policy would affect immigration policy--denying public services to unauthorized aliens would discourage them from coming to the US. Governor Wilson asserted that, since public services were a magnet for at least some unauthorized aliens, denying them services would encourage them to leave California.

There were conflicting reports after November 8 about the behavior of unauthorized immigrants. Some hospitals and clinics reported sharply fewer patients, and there were scattered reports that some of the estimated 300,000 to 400,000 unauthorized children in California schools were not going to school. However, most health facilities and schools reported business as usual.

In one widely-reported case, illegal alien parents reportedly did not seek medical care for their 12-year old son for fear of deportation to Mexico. He subsequently died. Many service providers printed up materials in their clients' language explaining that nothing had changed, and that patients and students would not be asked to prove legal status before they received services.

There were also numerous workshops on campuses, in churches, and in ethnic communities in which speakers decried the passage of Prop. 187 and urged opponents to get politically involved. Some speakers denounced the "racism" that, they asserted, motivated the vote, and some asserted that unauthorized immigrants report "feeling hatred" in the streets.

Activists in several other states threatened to boycott California in retaliation for the approval of Prop. 187. Denver's mayor urged city residents to boycott California, and the 110,000 member League of United Latin American Citizens said that most of its December conference would be devoted to planning a California boycott. Several other Hispanic organizations announced that they would not hold conventions in California, and some Hispanic leaders urged a boycott of Disneyland to send a signal of their dissatisfaction with the California vote.

Denying public services to unauthorized aliens may not be easy because many California households include persons with different legal statuses. In so-called "mixed families," family members include US citizens, legal immigrants, and unauthorized persons. Some fear that, if a US citizen or legal immigrant seeks services to which they are entitled, they may expose an unauthorized family member to immigration authorities. To prevent such detection, many public employees pledged not to comply with Prop. 187's verification requirements, which have not yet gone into effect.

Prominent Republicans scrapped over immigration. Former cabinet secretaries Bill Bennett and Jack Kemp attacked California Governor Wilson for supporting Prop. 187. They argued that immigrants are "natural Republicans" who support low taxes and family values, and that Wilson risks turning the Republican party into a party of protectionism and xenophobia. According to Bennett, "its assimilation, stupid"--meaning that the major problem is not the number or type of immigrant entering the US. Instead, Bennett argues that fears that newcomers will not integrate into American society result from "too many" programs such as bilingual education that, he argues, promotes multiculturalism.

Governor Wilson responded that the Republicans should hew to a law and order line, and emphasize the sharp distinction between legal and illegal immigrants. According to Wilson, the U.S. Border Patrol has a "Mission Impossible" task trying to keep people from entering the US illegally, but the federal government guarantees services and benefits "to everyone who succeeds in evading the Border Patrol."

Incoming House of Representatives Speaker Gingrich assured Wilson that he believes the federal government should either fully reimburse states for the costs they incur to provide services to illegal aliens, or eliminate the requirement that the states provide services to them.

The conservative magazine National Review weighed in on the side of Wilson, asserting that the economic benefits of immigration are small, and that immigration threatens national identity because it promotes multiculturalism and the welfare state.

Ronald Brownstien, "Wilson Proposes U.S. Version Of Prop. 187, " Los Angeles Times, November 19, 1994, A1. Roberto Suro, "Kemp Says Battle Over Immigration Policy May Rend Republicans," Washington Post, November 22, 1994, A10. B. Drummund Ayres, "New Fears for California's Undocumented Aliens," New York Times, November 21, 1994, A10. James Borhemeier, "Kemp, Bennett Warn of GOP Rift over Prop. 187," Los Angeles Times, November 22, 1994, A1. Brad Hayward, "Wilson Lashed on Immigration," Sacramento Bee, November 22, 1994, A1. "Why Kemp and Bennett Are Wrong on Immigration," National Review, November 21, 1994. Paul Feldman and Patrick McDonnell, Prop. 187 Sponsors Swept up in National Whirlwind," Los Angeles Times, November 14, 1994. "Hispanic Vote Becoming More Conservative, Study Finds," Houston Post, November 19, 1994.

After Prop. 187--Labor Law Enforcement

In campaigning against SOS, the Clinton Administration asserted that policy initiatives already underway would prove more effective at curbing illegal immigration. For example, on November 2, Labor Secretary Robert Reich asserted that a Department of Labor crackdown against the employers of illegal aliens would curb illegal immigration by denying them jobs.

Reich announced that a Georgia onion grower and the farm labor contractor that brought immigrant workers to his farm have been assessed a penalty of $1.2 million, including $675,000 in back wages, for paying farmworkers less than the minimum wage and violating other farm labor protection laws. According to Reich, if US employers are unable to pay less than minimum wages, US workers are more likely to be attracted to jobs now filled by illegal aliens.

According to Reich, employers of illegal aliens also violate other laws, so that penalizing employers who hire illegal aliens in order to pay below minimum wages will help to curb illegal immigration. In a sweep of 44 southern California garment shops, 41, or 95 percent, were found to be violating federal labor laws, and 40 percent of the workers in these shops were illegal aliens. In 1993, DOL ordered employers to pay $3.1 million to underpaid workers, up 30 percent from 1992.

Labor law enforcement has traditionally depended on complaints, because it is too expensive to randomly check on the six million employers in the US and the 750,000 employers in California. Some opponents of Prop. 187 argue that, instead of putting more resources into verifying the legal status of applicants for public services, we should put more effort into enforcing labor laws--if employers could not "exploit" illegal alien workers, this argument runs, illegal aliens would be less likely to be hired and thus less likely to come to the US.

Brad Hayward, "Better Solution than Prop. 187, Reich Says," Sacramento Bee, November 3, 1994, A6. Wall Street Journal, November 3, 1994, A4. Robert Scheer, "Instead of 187: Enforcement of Labor Laws," Los Angeles Times, November 20, 1994.

After Prop. 187--Hispanic Political Activism

Hispanics are about 28 percent of California's 32 million people, but they are just 15 percent of the state's eligible voters, and they cast only eight to nine percent of the November 8 ballots. Many are too young to vote, many adults are not US citizens, and many Hispanic US citizens do not vote.

About 2.7 million illegal aliens were legalized in 1987-88 and, after a period of temporary residence, most became legal immigrants after October 1988. These immigrants became eligible to become US citizens in October 1993. As a result of the Prop. 187 campaign, many school districts that offer citizenship classes expect enrollment to jump--in the case of the Los Angeles School District, from an average 500 to 25,000 by January 1995. About 90,000 immigrants became US citizens in Los Angeles in 1994, double the 1993 level--315,000 aliens became naturalized US citizens in 1993.

Hispanic high school and college students were especially active in opposing SOS, walking out of class frequently in late October and early November. Several commentators predicted that the activism born of opposition to SOS would be a defining moment for Hispanics, turning them into a political force in the same way that the Civil Rights movement of the 1960s encouraged Blacks to participate in the political process.

After Prop. 187--US-Mexican Relations

Many commentators were surprised by the active opposition of the Mexican government to Prop. 187 , and the extensive coverage of the campaign for and against Prop. 187 in the Mexican media. In his final state-of-the-nation address, Mexican President Carlos Salinas de Gortari asserted that "Mexico affirms rejection of this xenophobic campaign, and will continue to act in defense of the labor and human rights of our migrant workers," although he acknowledged that Mexico could not hope to use economic sanctions against the US or California to protest the approval of Prop. 187.

Ernesto Zedillo, who becomes Mexico's President on December 1, asserted during his November trip to Washington, DC that Mexico "cannot object to legitimate enforcement of US laws," but Mexico objects to "enforcement [that] might lead to deprivation or violation of basic human rights.... [including] education and health care." The Mexican government promised to contribute attorneys and funds to fight Proposition 187 in US courts.

A week after SOS was enacted, President Salinas called on the US to discuss a bilateral agreement that would permit Mexicans to work legally in the US under a guestworker program. According to Salinas, the movement of Mexican workers to the US "is inevitable, and it is better to order and regulate it than to confront it with administrative measures that are not going to stop it because the force of the economies is greater." Governor Wilson, in a widely reported November 18 speech to the Heritage Foundation, announced his support for a program to import Mexican guestworkers.

Knowledgeable US observers are skeptical, doubting that the Zedillo Administration will make the enactment of what would be a controversial guestworker program a top priority. Indeed, some advise the Mexican government that any guestworker proposal in the current US political climate could be counterproductive. The Mexican government does not want to have the US close the safety valve on which several million of its citizens depend. Mexico sees no significant lessening of emigration pressures during the 1990s.

The scenario for Mexico requesting and the US negotiating a guestworker program in 1995 runs something like this. Labor shortages develop, perhaps in the May 1995 Oregon strawberry harvest. The INS meanwhile, concludes that Operation Gatekeeper has succeeded in reducing the influx of illegal aliens, and discusses ways to make legal border crossings easier. US employers argue that the current H-2 programs under which foreign workers may be imported to the US in the event of labor shortages is too inflexible, and Mexico asks for a bilateral program that recognizes its proximity and the tradition of US employers hiring Mexican workers.

In such a scenario, the discussion could very quickly shift from whether there should be a guestworker program with Mexico to what kind of program. Given Prop. 187, it is already clear that any guestworkers would have little access to US public services while here, and that a significant portion of their wages are likely to be withheld to encourage their return.

Several newspapers have suggested that the guestworker idea proposed by Salinas would be the best way to engage in "immigration damage control." The Sacramento Bee, for example, editorialized on November 16, 1994 that a guestworker program could protect Mexican workers who are temporarily in the US and prove that California welcomes foreign workers who "play by the rules."

A few days before the California election, protesters vandalized a McDonalds' restaurant in Mexico City to protest the passage of Prop. 187. California exports goods and services worth about $7 billion annually to Mexico, and several Mexicans urged a boycott of Disneyland to "send a message" to California. Some businessmen fear that Mexico may shun California firms when it requests bids for projects to upgrade Mexico's infrastructure.

Mexicans continue to be apprehended attempting entry into the US, about 700 per night in San Diego. Deputy Foreign Minister Rozenthal predicted that, as North America integrates economically under NAFTA, "immigration is going to be the No. 1 issue between the US and Mexico for the next several years."

Mexico's economy is expected to grow by 3.5 percent in 1994, and US-Mexico trade is booming, up about 20 percent in 1994. US airlines in 1993 flew more passengers to Latin America--15.8 million--than to Europe--15.6 million--or across the Pacific--13.6 million.

Between January and October 1994, Mexico deported 60,000 illegal aliens who entered the country through its southern border.

Immigration is likely to be a central issue during December's Summit of the Americas in Miami. Leaders of several Central American countries are expected to tell President Clinton that their economies must grow faster in order to stem the flow of illegal immigrants to the north. Central American leaders have begun an intensive lobbying effort to prevent the return of their citizens after the passage of Prop. 187 and the threat of not renewing temporary protected status for El Salvadorans(see related story on El Salvador).

Tim Golden, "Government Joins Attack on Ballot Idea," New York Times, November 4, 1994, A13. Todd Robertson, "Salinas, Other Mexicans Protest California Anti-Immigrant Vote," Washington Post, November 10, 1994, A49, 55; Tim Golden, "Salinas Urges Talks on Free Migrant Flow," New York Times, November 14, 1994, A10. "Immigration damage control," Sacramento Bee, November 16, 1994, B6; Mexico deports 60,000 illegal aliens this year, The Xinhua News Agency, November 3, 1994