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U.S. Justice Department Memo Assails Prop. 187 : Election: Administration's latest broadside compares the measure to a Texas law declared unconstitutional.

October 28, 1994|RONALD J. OSTROW | TIMES STAFF WRITER

WASHINGTON — In yet another broadside aimed at Proposition 187, the Clinton Administration released a Justice Department memorandum Thursday saying that there is no difference between the California initiative and a Texas law denying education to illegal immigrants that was struck down as unconstitutional in 1982.

The Clinton Administration has made no secret of its distaste for the hotly debated measure, which would bar illegal immigrants from receiving many public services.

The memorandum released by Assistant Atty. Gen. Walter Dellinger, head of the office of legal counsel, represents an unusually aggressive move by Washington to lobby against a pending state ballot initiative.

Dellinger's 1 1/2-page memo dealt only with the educational provision of the ballot initiative and did not discuss its prohibition on providing illegal immigrants with non-emergency health and social services.

"This (education) provision . . . is in all material respects indistinguishable from the Texas statute that the Supreme Court held to be in violation of the Equal Protection Clause of the 14th Amendment," Dellinger wrote.

The Dellinger assessment will not constitute a formal legal opinion on the constitutionality of the initiative and will have no binding effect on implementation of Proposition 187, if it is approved by voters.

"It doesn't make sense to turn schoolteachers and nurses into Border Patrol agents. It doesn't make sense to kick kids out of school or not to give them immunizations," Atty. Gen. Janet Reno said Thursday in her strongest comments to date on the issue. "When we look at what's happening in America today, we see the problems associated with neglect and it doesn't serve any purpose."

The President denounced the initiative as unconstitutional in an Oct. 21 news conference. "If you turn the teacher and other educators into instruments of a sort of state police force, it's like bringing a Big Brother into the schools," he said.

In past weeks, the proposition has been harshly criticized by a steady procession of Administration officials from the attorney general to White House chief of staff Leon E. Panetta and Immigration and Naturalization Service Commissioner Doris Meissner.

But Reno in particular has engaged in a running dispute with California Gov. Pete Wilson over immigration issues. Wilson has accused the federal government of allowing illegal immigration because it does not adequately protect the borders. Reno and other Justice Department officials have accused Wilson of supporting measures, while he was a senator, that hampered enforcement of sanctions against illegal immigrants and their employers.

Thursday's Justice Department memo and the attorney general's comments came as the Los Angeles Times Poll reported a sharp erosion in voter support for Proposition 187, with likely voters favoring it 51% to 41%, down from a 59%-33% spread two weeks ago.

The Office of Legal Counsel researches constitutional questions for the President, and its work--often delivered to the Chief Executive by the attorney general or through the White House counsel--usually remains confidential until a sanitized version of the office's opinions is published years after being written.

Although the current memo stops short of being a full-scale opinion of the office, a later Justice Department analysis of the proposition's constitutionality could address whether the government would be able to cut off federal funds to education, health and welfare programs in the state if it is adopted.

In the Texas case (Plyler vs. Doe), Dellinger noted, the court found that discrimination against children not legally residing in the United States presented the court with an "area of special constitutional sensitivity" because the children "are in no way responsible for their illegal status."

The Texas law "directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice," the court reasoned. That differential treatment could be upheld only if it "furthers some substantial goal of the state," the court said.

Applying the same reasoning to Proposition 187, Dellinger wrote that it "does not refer to any goals of the state different from those articulated by Texas in Plyler."

The California measure goes farther than the Texas law by requiring school districts to verify the legal status of "each parent or guardian" of all pupils and to inform the INS and state officials if the districts find or reasonably suspect the parent or guardian to be in violation of the immigration laws, even if the pupil is a citizen.

"This requirement could have the effect of exposing the parents of potential students to deportation as a result of their children's enrollment in school," Dellinger wrote. "Many children who are citizens or lawful residents may therefore choose to forgo an education so as to protect parents who may not be lawful residents of this country," Dellinger said.

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