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Texas Case Looms Over Prop. 187's Legal Future : Justice: U.S. high court voided that state's '75 law on illegal immigrants. But panel has since shifted to right.


TYLER, Tex. — Seventeen years ago, third-grader Laura Alvarez was kicked out of elementary school.

The Mexico City-born daughter of illegal immigrants, Laura was one of tens of thousands of youngsters to feel the consequences of a 1975 Texas law that--like California's controversial Proposition 187--said undocumented children no longer qualified for a free public education.

A few days after being expelled, Laura recalls, she was awakened by her parents and seated in their aging station wagon for a pre-dawn ride on the clippity-clop, red-brick streets of downtown Tyler. Their destination: the imposing Federal Courthouse, where her parents, risking immediate deportation, testified in the courtroom of Judge William Wayne Justice.

The judge, acting on a lawsuit filed by civil rights lawyers, ordered Tyler schools Supt. James Plyler to allow undocumented students back into school. He also ordered that the identities of the 16 children named in the suit be withheld from the public to avoid possible harassment. The case, which came to be known as Plyler vs. Doe, eventually reached the U.S. Supreme Court, where, in a landmark 5-4 decision, the Texas law was declared unconstitutional.

As a result of that decision, Alvarez, now 26, was able to graduate from John Tyler High School in 1987. She now works as a teacher's aide for the very school system that ejected her.

When California voters decide how to cast their ballots next month, the legal implications of Plyler vs. Doe will loom heavy over the ultimate fate of Proposition 187.

The California measure is far more sweeping than the Texas law. It would bar illegal immigrants from receiving non-emergency health and social services, as well as public education, and would require school and health officials to report suspected undocumented people to federal authorities. Many of its provisions are likely to inspire court challenges, but none more clearly than the educational component.

Sponsors of Proposition 187 readily acknowledge that the Supreme Court would have to revisit its 1982 decision in order for the education ban to take effect. A "yes" vote on Election Day, they say, will pave the way for the high court to take a second look at the matter.

Opponents of Proposition 187 counter that its passage will serve only to ensure taxpayers a time-consuming, divisive and ultimately unsuccessful legal battle. A vote for 187, they say, is an expensive exercise in futility.

In its ruling, the Supreme Court for the first time extended the constitutional guarantee of "equal protection of the law" to people living in the United States illegally.

It is unjust to penalize children for the illegal actions of their parents, the court's majority said. And while public education is not a constitutionally granted right, it is nonetheless distinguishable from other forms of social welfare, the justices concluded, because of "the lasting impact of its deprivation on the life of the child."

"By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our nation."

Sponsors of Proposition 187 say conditions in California are different from those in Texas in the mid-1970s. Such factors, they say, will give the Supreme Court reason to ignore or reverse its previous ruling.

For one thing, the magnitude of the illegal immigrant population appears greater in California. Here, the estimated number of youngsters who would be expelled exceeds 300,000--three to 30 times the number of undocumented young people that, according to various estimates, were attending school in Texas at the time.

By requiring school officials to report suspected illegal immigrant students and their parents to federal authorities, the initiative also takes a step, sponsors say, toward returning students to their native lands, where they could ostensibly complete their education.

Moreover, they emphasize, the makeup of the court has shifted dramatically to the right since the 1982 decision.

"Only one member who voted with the majority is still there," noted Proposition 187 co-author Alan C. Nelson, a former commissioner of the U.S. Immigration and Naturalization Service.

Foes of Proposition 187 retort that the court has been extremely reluctant to overturn previous rulings, especially ones decided little more than a decade ago.

Besides, they say, the measure provides no clear provisions for deportation and is far more Draconian than the unconstitutional Texas law, which allowed children to remain in public school if they paid tuition fees.

Most important, opponents add, is that the net effect of the Texas law and the ballot measure are precisely the same: to create a policy that would scapegoat children for the sins of their parents and lead to the expulsion of thousands of undocumented students.

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