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Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation.  A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.

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A Decision Under Fire

On November 20, 1995, United States District Judge Mariana R. Pfaelzer ruled that several provisions of California's Proposition 187 violate federal law. (League of United Latin American Citizens v. Wilson, 908 F.Supp. 755 (C.D.Cal. 1995)). Among these provisions is the one that denies public elementary and secondary education to children who are not authorized by federal law to be present in the United States.

In ruling on this provision Pfaelzer made four errors. First, she misstated the scope of the provision; then she misconstrued the federal preemption doctrine and invoked the United States Supreme Court's opinion in Plyler v. Doe, 457 U.S. 202 (1982). Finally, she misinterpreted Plyler.

Pfaelzer said:

Section 7 [of Proposition 187] denies public elementary and secondary education to (i) children who are in the United States in violation of federal law, and (ii) children who are citizens or otherwise legally present, but whose parents or guardians are in the United States unlawfully.

(League, at 785).

Pfaelzer cited sections 7(a), (e) & (f) of Proposition 187 (California Education Code § 48215, which was repealed in 2014) in support of her assertion. (Id.) However, contrary to her second point, Proposition 187 does not deny education benefits to children who are legally present, but whose parents or guardians are in the United States unlawfully.

Section 7(a) of Proposition 187 is a "benefit denial" provision and states:

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 a person who is otherwise authorized under federal law to be present in the United States.

Section 7(e) does not deny any benefit, but is a "reporting" provision that requires school districts to provide information to the United States Immigration and Naturalization Service and others, regarding "any enrollee or pupil, or parent or guardian," attending public elementary or secondary schools who are determined or reasonably suspected to be in violation of federal immigration laws. It also requires school districts to provide the information to "the parent or legal guardian of the enrollee or pupil," with a statement "that an existing pupil may not continue to attend the school after ninety calendar days from the date of the notice, unless legal status is established."

Section 7(f) does not mention anything about parents or guardians and requires schools districts "to provide education for a period of ninety days from the date of the notice" given under section 7(e), to "each child who cannot establish legal status in the United States."

There is no logical reason for Pfaelzer to have stated that Proposition 187 denies educational benefits to "children who are citizens or otherwise legally present, but whose parents or guardians are in the United States unlawfully."

Pfaelzer's next error was to misconstrue the federal preemption doctrine. She began with her acknowledgment that the plaintiffs' summary judgment motions upon which she ruled were based on "the sole ground that the initiative is preempted by the federal government's exclusive constitutional authority over the regulation of immigration, Congress' exercise of that power through the Immigration and Nationality Act ("INA") and other federal statutes." (League, at 764).

However, hornbook law states that the federal preemption doctrine arises from the supremacy clause of the U.S. Constitution and requires that when "Congress exercises a granted power, concurrent conflicting state legislation" is overridden. (J. Nowak & R. Rotunda, Constitutional Law § 9.1, at 311 (West 1991)). Such conflicting state legislation does not have to be violative of the U.S. Constitution to be preempted; it merely has to conflict with federal law as enacted by Congress or a federal agency.

When state law only conflicts with a provision of the U.S. Constitution, it is inappropriate to speak about the preemption doctrine. In such a case the state law's conflict with the Constitution is what invalidates the law.

Ignoring this distinction, Pfaelzer assumed that state law violative of the Constitution falls within the preemption doctrine. Building on her incorrect assumption she then invoked the Plyler case, even though that case only involved a violation of the Equal Protection Clause, not Congressional preemption. She did this while acknowledging that "plaintiffs did not assert Plyler as a basis for conflict preemption of section 7 in their motions for summary judgment..." (League, at 785 n.36).

Pfaelzer then proceeded to misinterpret the Plyler opinion. She stated:

In Plyler, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits a state from denying "to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens." Plyler, 457 U.S. at 205. The Supreme Court rejected each of the state's proffered justifications for denying education to undocumented children, including the desire "to protect itself from an influx of illegal immigrants," to "preserv[e]... the state's limited resources for the education of its lawful residents," and to remove the alleged "special burdens [undocumented children] impose on the State's ability to provide high-quality public education," as constitutionally insufficient to deny children access to a basic education and noted the conflict that would result if the state were to deny education to "a child enjoying an inchoate federal permission to remain." Id., at 226-230. Clearly, then, section 7's denial of a public education based on the immigration status of the child or the child's parent or guardian conflicts with and is preempted by federal law as announced by the Supreme Court in Plyler.

(League, at 785, footnotes omitted).

Pfaelzer implied that Plyler held that under our present Constitution a state could never use a person's illegal immigration status as a basis for denying that person public elementary and secondary education. Her implication is incorrect. Plyler clearly allows a state to deny such education to illegal aliens under certain circumstances and those circumstances apparently exist in this case.

Moreover, Pfaelzer failed to mention several key portions of Plyler that explain why the Texas law in that case was invalidated. She also failed to mention key facts that distinguish California's denial of educational benefits from Texas' denial.

Pfaelzer failed to mention that the Court in Plyler said that the "Equal Protection Clause directs that all persons similarly circumstanced shall be treated alike" but it "does not require things which are different in fact or opinion to be treated in law as though they were the same" (Plyler, at 216). Plyler further recognized that children who are legally here are not similarly situated with children who are illegal aliens because the latter are "in violation of federal law" -- a distinction the Court said was "not a constitutional irrelevancy" (Plyler, at 223).

She failed to mention that Plyler held the Texas denial would be constitutional if it furthered "some substantial state interest" (Plyler, at 230). But incredibly, Plyler held that "the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State" (Plyler, at 229). Plyler also held that the record does not support "the claim that the educational resources of the State are so direly limited" that the exclusion is a reasonable solution (Plyler, at 229 n.25). Plyler further said: "There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State's economy" (Plyler, at 228).

Plyler also recognized that while regulation of immigration is an exclusively federal function, a state may take action, consistent with federal immigration policy, to protect its economy and ability to provide governmental services from the deleterious effects of a massive influx of illegal immigrants. Plyler said:

Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State's economy generally, or the State's ability to provide some important service. Despite the exclusive federal control of this Nation's borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns.

(Plyler, at 228 n.23.)

A great deal of evidence exists in the public record demonstrating that California would be able to make the showing Texas failed to make. The analysis of Proposition 187 by the state legislative analyst said that the provision denying public education to illegal aliens could save the state up to $1.2 billion annually. Governor Pete Wilson put the figure at $1.5 billion. A more recent federal Government Accounting Office analysis basically supports Wilson.

Therefore, given California's massive budget deficits, the underfunding of our schools, underpayment of teachers, the $1 billion-plus annual cost of educating illegal aliens, it's clear that California can make the showing that Texas was unable to make, thereby preserving Proposition 187's denial without violating Plyler.

However, since Plyler was not raised by plaintiffs and the Equal Protection Clause was not an issue in these summary judgment motions, the state did not address Plyler or provide the evidence that would justify the denial of education benefits. By invoking Plyler on her own, without it being raised by plaintiffs, pursuant to her misconstruing of the preemption doctrine, Pfaelzer denied California the opportunity to make the showing that Plyler clearly said could justify a denial of public elementary and secondary education to illegal aliens.

Additionally, because her misinterpretation of Plyler failed to allow for an evidentiary showing of the deleterious effects of illegal alien students on the state, Pfaelzer again denied the state an opportunity to make the showing it has a right to do under Plyler.

Pfaelzer has been accused of deliberately putting her own political and social views ahead of the law. She only fuels such accusations by making a ruling that is not supported by the law.


After Pfaelzer's ruling the state of California filed a written motion with her explaining most of the errors described above. She heard oral argument on this motion Tuesday, December 12, 1995. Here is an excerpt of a news report of that hearing:

In a motion written by Deputy Attorney General Donald P. Cole, the defendants argued that the judge's ruling on the education clause was based on equal protection grounds stated in Plyler v. Doe, 457 U.S. 202 (1982), and not the pre-emption argument made by opponents of the anti-illegal immigrant initiative. The state was asking for an opportunity to present evidence that illegal immigrants were placing unacceptable economic burdens on the state.

Beginning Tuesday's hearing with statements designed to tailor the conversation, Pfaelzer first noted her denial of the defense motion: "It's obvious the showing" that the defendants want to make on the state's financial situation "was in fact made and rejected in Plyler."

Thom Mrozek, State Must Name Programs to Implement Parts of Prop 187, Los Angeles Daily Journal, at 2 (Dec. 13, 1995).

Compare Pfaelzer's statement to the following portion of Plyler: "There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State's economy." (Plyler, at 228). Thus, clearly contrary to Pfaelzer's oral statement as reported by the Daily Journal, a showing that illegal immigrants place unacceptable financial burdens on the state was not made in Plyler! Pfaelzer's oral statement as reported by the Daily Journal is a 100% distortion of Plyler.

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