1994 California Voter Information
Analysis of Proposition 187 by the Legislative Analyst
Proposition 187: Illegal Aliens.
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Ineligibility for Public Services. Verification and Reporting. Initiative Statute. Background

According to the 1990 census, more than one in five Californians were born in another country. The number of California residents who are foreign-born now totals about 7 million. Currently, about 300,000 new residents enter the state each year from foreign countries. Federal law governs immigration, and the U.S. Immigration and Naturalization Service (INS) administers and enforces those laws.

Illegal Immigrants

The INS estimates that California's foreign-born population as of April 1994 included roughly 1.6 million unauthorized immigrants and that this number has been increasing by about 125,000 each year. Other terms applied to unauthorized immigrants include "illegal immigrants" and "illegal aliens."

Most illegal immigrants who come to California enter the country without any authorization. However, at least a third of illegal immigrants in California originally entered the country legally, but on a temporary basis--as a tourist or student, for example--and then remained after their departure date. An illegal immigrant may later become "legal" by receiving permission from the INS to remain in the country temporarily or as a permanent resident. The amnesty granted by the federal 1986 Immigration Reform and Control Act legalized about 1.6 million former illegal immigrants in California. Illegal immigrants also may become legalized through regular immigration processes or by claiming asylum from persecution in their home country.

Health and Welfare Benefits. Illegal immigrants generally are not eligible for welfare grants. However, illegal immigrants do qualify for some social services and health care programs that are available to all Californians. For instance:

 

Public Education. Any child who lives in California may attend public schools through high school. The U.S. Supreme Court has determined (in the case of Plyler versus Doe ) that excluding children who are illegal immigrants from public schools violates the federal constitution. This decision, however, does not apply to publicly funded higher education. Currently, illegal immigrants may attend public colleges and universities in California. However, the University of California (UC) and the California Community Colleges (CCC) generally require students who are identified as illegal immigrants to pay the higher tuition charged to nonresident students. The California State University (CSU) currently does not charge higher fees based on the legal status of the student.

Citizen Children. Under the U.S. Constitution, children born in this country to illegal immigrant parents are U.S. citizens--just like any other child born here. Many illegal immigrant families in California have citizen children, who have the same rights and are entitled to the same benefits as any other citizen.

Verifying a Person's Legal Status

The United States has no universal national identity card, so documenting citizenship or legal immigration status can be complex, even for native-born citizens. Generally, several documents are needed--for example, a U.S. birth certificate to establish the basis for citizenship and a driver's license with a photo to establish identity. However, many people (especially children) do not have a driver's license or other official photo identification. Documenting citizenship for these people may involve additional steps, such as verifying the identity of a child's parents.

Most legal immigrants have an identification from the INS to verify their status, such as a "green card" issued to immigrants granted permanent residence in the U.S. The INS has developed a computer system that government agencies and employers can use to check the validity of most types of immigration documents. No similar nationwide automated system exists to check the validity of birth certificates, which are issued by thousands of local agencies throughout the country.

Federal Program Requirements

State and local agencies must comply with a variety of federal laws in order to receive federal funds for many education, health and welfare programs. These laws often set out who is eligible for a program, procedures for granting or denying benefits or services, and requirements for keeping records confidential. For example, the Family Educational Rights and Privacy Act (FERPA) generally prohibits schools that receive federal funds from disclosing information in student records without parental consent.

Proposal

Generally, this initiative prohibits state and local government agencies from providing publicly funded education, health care, welfare benefits, or social services to any person that they do not verify as either a U.S. citizen or a person legally admitted to the U.S. The measure also requires state and local agencies to report suspected illegal immigrants to the INS and certain state officials. These changes are described below.

Verification Requirements

The measure does not set out any specific requirements as to how verification of citizenship or legal presence in the United States would be done. As a result, individual public agencies and institutions could choose a variety of verification methods. They might require only a birth certificate or INS document, or they also might require a driver's license or other official photo identification. A more thorough verification process would attempt to check the validity of immigration documents and possibly also birth certificates with the issuing agency.

Exclusion of Suspected Illegal Immigrants from Public Schools

Starting on January 1, 1995, the initiative requires every school district to verify the legal status of every child enrolling in the district for the first time. By January 1, 1996, each school district must also verify the legal status of children already enrolled in the district and of the parents or guardians of all students. The measure requires school districts to take the following steps if they "reasonably suspect" that a student, parent, or guardian is not legally in the U.S.:

 

The exclusion of suspected illegal immigrant children from public schools would be in direct conflict with the U.S. Supreme Court's ruling in Plyler versus Doe that guarantees access to public education for all children in the United States. Consequently, this provision of the initiative would not be effective. Under the Plyler decision the measure still might require school districts to verify citizenship and legal status and to report suspected illegal immigrants, even though districts could not exclude any students from schools. Alternatively, the courts might decide that the verification and reporting requirements have an unacceptable "chilling effect" on school attendance and therefore invalidate these requirements.

Exclusion of Suspected Illegal Immigrants from Public Colleges and Universities

The initiative prohibits public colleges and universities from allowing students to attend who are not legally authorized to be in the United States. The affected institutions include the UC, the CSU, and the CCC. The measure requires public colleges and universities to verify the citizenship or legal status of each student at the beginning of every term or semester after January 1, 1995. If the college or university reasonably suspects that a student or applicant for admission is an illegal immigrant, then it must report its findings within 45 days to the INS, the State Superintendent of Public Instruction, the California Attorney General, and to the affected student or applicant.

Restrictions on Health Care and Social Services for Suspected Illegal Immigrants

The measure requires public agencies and publicly funded health care facilities to verify that a person is a U.S. citizen or is legally authorized to be in the United States before providing that person with social services (including welfare benefits) or health care services, except for emergency health care required by federal law. If an agency or health care facility reasonably suspects that an applicant for benefits or services is an illegal immigrant, then it must report its finding to the INS, the California Attorney General, the State Department of Social Services, or the Department of Health Services, as appropriate, and to the affected person. The reporting agency or facility also must provide any additional information that the other agencies request.

Reporting Arrests Involving Suspected Illegal Immigrants

The measure requires every state and local law enforcement agency to attempt to verify the legal status of every arrestee who is suspected of being in the United States illegally. The agencies would have to report anyone they arrest who they suspect is an illegal immigrant to the INS and to the State Attorney General. The initiative also requires the Attorney General to maintain records of these reports.

New Crimes for Making or Using False Documents

The initiative creates two new state felonies for manufacture or use of false documents to conceal true immigration or citizenship status. The penalties for these crimes would be prison terms of five years or fines of up to $75,000 (for manufacturing) or up to $25,000 (for use). The manufacture or use of false immigration or citizenship documents currently are federal crimes. Forgery of state documents, such as driver's licenses, or obtaining them by fraud is currently a state crime.

Fiscal Effect

The most significant fiscal effects of this initiative fall into the following three categories:

 

All of these fiscal effects are subject to a great deal of uncertainty. The use of services by illegal immigrants can only be roughly estimated. In addition, the measure's fiscal effects could depend on legal interpretations of the measure.

Below, we discuss the significant fiscal impacts of the measure.

Health Care Savings

Federal law requires health facilities to provide necessary emergency care to any person in need regardless of income or legal status. This measure would not restrict this care. The measure, however, would place restrictions on nonemergency care provided with public funds.

Medi-Cal. The Medi-Cal program provides a full range of medical services to poor families with children, as well as to poor elderly and disabled people. The program is funded jointly by the state and the federal government. Generally, illegal immigrants are eligible only for emergency Medi-Cal services. However, California chooses to provide (using only state funds) prenatal care to pregnant women and nursing home care to elderly or disabled persons who are illegal immigrants. The measure would eliminate these services, which would result in an annual state savings of about $100 million.

County Indigent Health Care. Counties provide basic medical services to poor residents who have no insurance and are not covered by another program (such as Medi-Cal). This measure would prohibit counties from providing nonemergency medical care to anyone whose citizenship or legal presence in the United States could not be verified. Denying these services to illegal immigrants would result in savings to counties and the state. However, reductions in special federal payments to hospitals would offset a significant portion of the county savings--possibly half. Hospitals receive these federal payments for serving large numbers of poor people without compensation. The net annual savings, after taking into account the reduced federal payments, would be in the tens of millions of dollars to counties and several million dollars to the state.

Denying Some Services May Increase Future Costs. Denying some medical services to illegal immigrants could result in future increased state and local health care costs. For example, eliminating prenatal services to illegal immigrant women could result in higher Medi-Cal costs for their infants, who would be citizens. In addition, failure to treat and control serious contagious diseases, such as tuberculosis, among illegal immigrants could increase future costs to treat the disease in the general population.

Social Services

Currently, any child in need may receive child welfare services or foster care benefits under Aid to Families with Dependent Children (AFDC). These programs are supported by federal, state, and county funds. Initially, counties provide foster care for illegal immigrant children at their own expense. After the INS indicates that a child in foster care will not be deported, the state and the federal government share in the cost.

This measure would prohibit counties and the state from providing these services and benefits to children whose citizenship or legal status has not been verified. Withholding these services would result in annual savings of roughly $50 million to the counties and the state.

Public Schools

Based on the INS estimate of the total illegal immigrant population in California, we estimate that roughly 300,000 students in California public schools, out of a total of 5.3 million, are illegal immigrants. Excluding all of these students from public schools could save the state up to $1.2 billion annually. However, the U.S. Supreme Court decision in Plyler versus Doe held that illegal immigrants could not be denied a public education, so these savings would not be realized.

Public Colleges and Universities

The UC charges identified illegal immigrant students nonresident tuition. The CCC charges these students nonresident tuition if they are taking courses for credit. This tuition generally covers the state's cost of educating these students. Consequently, there would not be any net savings from excluding these already-identified students from those institutions. However, there would be savings from this measure if more students who are currently paying resident tuition are identified as illegal immigrants and excluded as a result of more frequent and/or thorough verification.

The CSU and the CCC (for noncredit courses) do not charge students nonresident tuition on the basis of the student's legal status. The CSU's annual cost per student is about $3,000 higher than the amount of resident fees. The CCC's annual net cost per noncredit student is $1,500. Consequently, excluding illegal immigrant students from the CSU and from noncredit courses at the CCC would result in savings.

Overall, this measure would result in savings to public colleges and universities that could be up to tens of millions of dollars annually.

Potential Risk of Losing Federal Funds

The measure requires school districts to report students who are suspected illegal immigrants to the INS and the state Attorney General. Making these reports without parental consent appears to violate the FERPA. Compliance with FERPA is a condition of receiving federal education funds, which total about $2.3 billion annually to school districts in California. The Secretary of the U.S. Department of Education has indicated that the reporting requirement in this measure could jeopardize the ability of California school districts to receive these funds.

Public colleges and universities in California receive at least $1.1 billion in federal funds subject to FERPA requirements. For these institutions, FERPA prohibits release of student information without the student's consent. The measure's reporting requirements also would put these funds in jeopardy.

Federal matching funds for the AFDC program and the Medi-Cal program also would be put at risk by the measure's reporting requirements. Existing federal and state law require verification of legal status in order for persons to qualify for most benefits and services provided by these programs. However, federal regulations require the state and counties to keep confidential the information provided by applicants in order to continue receiving federal matching funds. The total amount of federal funds at stake is about $3 billion in the AFDC program, and more than $9 billion in the Medi-Cal program.

Other provisions in the measure may conflict with federal laws that (1) establish procedures agencies must follow before they can deny health or welfare benefits to anyone and (2) make some immigrants who do not have formal legal status eligible for benefits.

In total, the measure places at risk about $15 billion of federal funds. Given the magnitude of this potential loss, the state and federal governments would likely seek ways to avoid, or at least minimize, the loss. A solution, however, would likely require changes in state and/or federal laws.

Verification and Reporting Costs

This measure would impose significant administrative costs on the state and local governments to meet its verification provisions. These costs could vary considerably, depending on the verification methods used.

Public Schools. School districts could incur large costs in 1995 in order to meet the measure's deadline of January 1, 1996 to verify all students and their parents. These one-time costs could range anywhere from tens of millions of dollars to in excess of $100 million. Ongoing costs for verification would be less, potentially in the tens of millions of dollars annually statewide.

Public Colleges and Universities. These institutions currently review the legal status of many students, primarily to determine whether they qualify for resident tuition. The measure, however, requires these institutions to verify the legal status of all of their students (1.9 million statewide) at the beginning of each semester or term. This requirement probably would cost public colleges and universities a total of at least several million dollars annually.

Social Service Agencies. County welfare offices currently must verify the legal status of persons applying for welfare benefits in the AFDC or county general assistance programs. There would be some additional costs, possibly several million dollars annually statewide, to verify legal status in a variety of smaller programs, such as child welfare services.

Publicly Funded Health Care Facilities. The legal status of Medi-Cal recipients must be verified under current law (generally by the county welfare office or the Social Security Administration). This measure also requires verification of persons seeking other publicly funded health services, such as county indigent health care and various public health services. The cost of this verification process to counties and UC hospitals could be up to several million dollars annually.

Law Enforcement

The costs to local law enforcement agencies to report suspected illegal immigrants to the Attorney General could be up to $5 million annually. The state costs to process the information from local law enforcement and other reporting agencies (such as school districts) would be at least several millions of dollars annually.

New Crimes

By creating new state crimes for making or using false documents to conceal legal status, this measure could increase state and local costs to arrest, prosecute, and incarcerate violators. However, these activities already constitute federal crimes and also may be covered under existing state laws. The state and local governments would incur additional costs only to the extent that more persons are apprehended for these crimes and prosecuted under state law. However, the state cost would be about $2 million annually for every hundred persons incarcerated. These costs could be offset in part by revenue from fines.

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