The Life After Death of Proposition 187
By Sandra Hernandez
For nearly four years Carlos Montes has lived in fear, wondering what would happen if Proposition 187 were allowed to take effect. “I just kept wondering why this happened. It’s all very complicated, but I knew that suddenly a pregnant women might get turned away at the hospital,” says Montes, a father of four.This July, Montes and thousands of undocumented immigrants across California breathed a sigh of relief after Gov. Gray Davis and civil rights groups announced Proposition 187 officially dead thanks to a mediated settlement.“I guess I feel a little calmer now. I’m not sure what this means in my everyday life, but I’m glad its over,” says Montes, who asked that his real name not be used. “I just couldn’t understand why it passed,” he says in Spanish, adding that in the 20 years since he made the trip north from Mexico to Los Angeles to work as a gardener, he has never received public assistance.Launched as the “Save our State” initiative, Proposition 187 sought to bar undocumented immigrants from receiving public social, educational, and medical services. The agreement puts an end to a four-and-a-half year court battle that began in November 1994 after California voters overwhelming approved the ballot initiative. The deal means Gov. Davis won’t appeal U.S. District Judge Mariana R. Pfaelzer’s ruling that found much of the initiative — including two of the most controversial provisions — unconstitutional. Those provisions would have barred undocumented immigrants and their children from public schools and refused them subsidized medical and social services. Moreover, the initiative barred undocumented immigrants from ever attending state colleges and universities. In return, civil rights groups agreed not to appeal the provision of 187 that creates state laws criminalizing the use and manufacture of false documents that would conceal a person’s immigration status.But while news of the settlement sparked celebrations and moved Latino elected officials to pronounce the state’s “cultural wars” officially over, the agreement will do little to alter the legacy of 187.“I think in many respects we need to understand that we may have won the battle but [former Gov.] Pete Wilson won the war,” says Peter Schey, an attorney representing one of the plaintiffs that filed suit against the state. “We won a tactical victory but they injected many of the standards of 187 in federal law.”Schey and other attorneys acknowledge that while last month’s agreement yielded some very tangible relief to undocumented immigrants like Montes, who feared their children might be kicked out of school, it has tainted the debate over education for years to come.“People are terrified of doing things for the undocumented and especially when it comes to education,” says Vibiana Andrade, an attorney with the Mexican American Legal Defense and Educational Fund, who helped carve out the agreement. “And there are a lot of politicians who are in marginal seats where constituents still feel very strongly about 187 and get very upset when they think undocumented immigrant kids are getting into schools.”
An Ongoing Struggle The post-Proposition 187 problems are already beginning to show. A new bill aimed at providing financial relief to undocumented immigrant kids who want to attend state colleges has already run into trouble. The bill would allow undocumented students to attend state colleges, paying in-state tuition. Currently, the law says that such residents must pay out-of-state tuition.“We get calls from folks who are irate about the legislation,” says Jose Sigala, a legislative aide to California Assemblyman Marco A. Firebaugh (D-50th District), author of the bill. “I think people are still angry over 187 in some parts of the state and certainly that has affected the tenor of the debate.”That anger has translated into problems in the state Senate, where the bill was amended to limit eligibility to only those students currently adjusting their immigration status. And that worries many groups and politicians who say Latinos are already vastly underrepresented in higher education. “The number of Latino kids going to college is so low that to create another hurdle is terrible,” says Bill Mabie, chief of staff to state Sen. Richard Polanco who heads the Latino Caucus.And there is still a question over what Gov. Davis will do when it comes to reforming the admissions process for the state’s UC campuses. Considered the jewel of California’s higher education system, Davis and others have proposed altering the U.C.’s admissions process to accept the top 4 percent of students graduating from California’s public high schools. The proposals came in the wake of Proposition 209, the ballot initiative that put an end to affirmative action. But in communities with large immigrant populations, such as Downtown and Southeast Los Angeles, the top students are often undocumented. “Out in our district, you see undocumented kids who are the valedictorian of their class. They grew up here and want to go to college, but they can’t afford to pay out-of-state tuition,” Sigala says .The difference between out-of-state and local tuition is estimated at about $12,000, according to analysts.Davis has not given any clear indication of what he plans to do. But many who heard the governor speak at a press conference announcing the agreement say it doesn’t bode well for undocumented immigrant kids. Davis said the spirit of 187 lives on and is “supplanted by federal legislation that is faithful to the will of voters who passed 187 and will require the state to deny virtually all of the benefits that would be denied under the terms of 187.” Deborah Escobedo couldn’t agree more. An attorney with Multicultural Educational Training Advocacy, a San Francisco based nonprofit legal group that brought a suit against the state over 187, she says California isn’t free of 187. “It’s not an issue of 187 being gone; it’s an issue of the anti-immigrant legacy that is still here. We still have 227 [the proposition that dismantled bilingual education in public schools] and federal laws.”
Questions That RemainBut perhaps the most surprising thing about Proposition 187, the measure that never took effect, wasn’t what it did, but the tortured negotiations that led to the mediated settlement. “This was an extremely uncommon situation,” says Erwin Chemerinsky, professor of constitutional law at the University of Southern California. “When you are dealing with the question of whether a law is constitutional or not, it’s almost unheard of to agree to mediation because a law is either unconstitutional or it’s not.”The negotiations were launched in May after Davis and attorneys agreed to court-sponsored mediation and immediately drew criticism from some powerful Latino elected officials — including Lt. Gov. Cruz Bustamente. Described as often difficult, the talks were nearly derailed by Davis’ bid to have supporters of 187 present during the negotiations as well as his request to keep a provision that would have required police to question anyone they arrest about their immigration status. “We finally managed to convince the governor that was an anti-crime provision,” says Carlos Holguin, an attorney representing one of the plaintiffs.Civil rights attorneys acknowledge their concession to allow state criminal sanctions for the use or manufacture of false documents is also risky. “We are concerned because of changes to the immigration law,” says one attorney, adding that while a similar federal law exists, it is rarely applied to immigrants who use false documents. The question is now whether state officials will begin charging undocumented immigrants who use false documents and whether it may affect the eligibility of those immigrants trying to adjust their immigration status.But perhaps the biggest question left unanswered by the agreement isn’t what does the end of 187 spell for California, but will there be another?“I think this is over until the next economic decline — when 187 will be revisited,” says Jaime Regalado, director of the Pat Brown Institute at California State University-Los Angeles.
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