Attorney who helped halt California’s Prop 187 reflects on its legacy, 25 years later

A quarter century ago, California’s controversial Proposition 187 lit a fire beneath the state’s Latino community and helped transform the state’s political and cultural climate. Proposed as a solution to the state’s rise in immigration from Latin America, the initiative’s advocates capitalized on xenophobic sentiments to advocate for a law that would bar undocumented immigrants from enrolling in school and keep them from receiving most health and public services. The Mexican American Legal Defense and Education Fund was one of the major organizations that successfully sued to get Proposition 187 stayed and ultimately declared unconstitutional. MALDEF president Thomas Saenz was one of the key attorneys on the case. Here, he discusses how his organization and others fought the initiative as well as what that battle tells us about the national debate over immigration that has engulfed the country in recent years.

Can you describe the political and cultural climate at the time of Proposition 187’s passing?

It’s easy to think that Proposition 187 came in isolation. It didn’t. It was a very anti-immigrant time for lawmaking in California. In the state itself, the year before Proposition 187 was passed, the legislature by a bipartisan vote decided to deny driver’s licenses to undocumented people, which only in recent years has been reversed. There were dozens of anti-immigrant proposals in the legislature every year in the early and mid-1990s. It was a time of interest in taking punitive measures against the immigrant community in California. Twenty-five years later, that’s completely changed for the better.

What would have been the repercussions, had Proposition 187 been enacted?

The federal judge who ruled on the first temporary restraining order and then the judge who ruled on the preliminary junction concluded that there were enough legal flaws in the initiative and enough potential for irreparably harming individuals that an injunction was in order.

That irreparable harm was not just denying social services and health care to the undocumented. If it were implemented, Proposition 187 possibly would have targeted lots of folks of other statuses, meaning U.S. citizens could have been denied services because they fit a racist stereotype of (someone) who is suspected of being undocumented. In retrospect, that’s a detail that gets missed — that it would have had much greater effects.

Health care and social services, K-12 schooling, university education, all of those could be denied based on reasonable suspicion. The potential for discrimination was extreme and that was certainly one of the talking points that we used during the election campaign to convince people to vote no. 

Do you see any parallels between the initial support for Proposition 187 and the efforts today to end programs like DACA?

I think there’s no question that what we see at the national level today is the most anti-immigrant, anti-Latino presidential administration in our history. The difference is this was largely confined to California at the time. There were bipartisan voices from outside California that condemned Proposition 187. Now immigration seems to be a much more partisan and national issue. However, one unfortunate outcome of Proposition 187 was the inclusion two years later in the 1996 welfare reform act, signed by President Clinton, of Title 4, which basically created a presumptive rule of ineligibility for undocumented immigrants for all kinds of social services and health care, with the exception of state-funded care and emergency surgery.

So, while MALDEF celebrates the victory in court over Proposition 187, because we were a big part of that, we also recognize that unfortunately, federal law changed two years later, arguably as a response to the law, and that remains with us.

Were the health implications of the law in people’s minds at that time?

Another talking point during the campaign against Proposition 187 was simply that public health benefits the entire public. It doesn’t really benefit anybody for folks to be afraid to get medical care to which they’re entitled, particularly if it’s medical care for a communicable disease, because that has an impact on the public. I think today, 25 years later, we might have a greater understanding of that, primarily because of the measles outbreak that we’ve experienced in recent years. But at the time, I don’t think there was a recent memory of something like that.

Do you have any advice for reporters today on how to report more clearly on complicated laws with big implications for public well-being?

I think a lot of it starts with a public misunderstanding of what existing law is when it comes to immigrant eligibility for social services and health care. I think there’s way too many people out there that think that immigrants are somehow eligible for so many social services that other folks are not eligible for, and that’s the complete opposite of what the case is. Undocumented immigrants in particular are ineligible for almost all of these services and health care programs.

And then there’s a need to be clearer about proposals that are coming forward, whether that’s public charge or other regulations from the Trump administration. It’s really important that the media not fall into creating or adding to the fear that the administration is consciously trying to create. That’s not easy when you have a presidential administration that seems every day to be trying to scare immigrants more and more. It’s important that the media be very clear about the real effects of what’s being proposed and about the prospect of that proposal actually being legalized.

Any final thoughts about the Proposition 187 anniversary?

Politically, California changed permanently as a result of the reaction to Proposition 187. I think we’re starting to see similar change in Arizona in response to SB 1070 which was enacted nine years ago. And I think nationwide we’ll see changes in reaction to this really unprecedented campaign by the Trump administration to target, demonize, and scare immigrants of all statuses, as well as citizens who are members of immigrant families or communities.

I think there will be a backlash against Donald Trump, who undoubtedly will end up like former Gov. Pete Wilson, a bad name, a bad word, when it comes to the Latino voting community. There will also be repercussions for the Republican party if we don’t see some Republican leaders breaking away from defending this anti-immigrant campaign led by the president and his administration.

This interview has been edited for length and clarity.