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

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.

Dellinger did not note in his memo that the 1982 decision was rendered by a 5-4 court and that only one member of the majority (Justice John Paul Stevens) remains on the court. He also did not mention that the ruling followed a Supreme Court decision nine years earlier that held that the right to education is not a fundamental right guaranteed by the Constitution.

The Texas decision “is certainly a fragile precedent,” said Bruce Fein, a former Reagan Administration Justice Department official and conservative commentator. “It was a 5-4 majority, and four of those in the majority are gone. So, it is not clear how it would turn out.”

Fein took sharp issue with the Dellinger memo being made public. “This sounds like using (the legal counsel’s office) for partisan political purposes,” he said. “Why in the world is this Administration offering an advisory legal opinion on this issue? It’s none of their business.”

On the other side of the philosophical fence, Prof. Laurence Tribe of Harvard Law School noted recently: “This court is very serious about adhering to precedent in the absence of an overwhelming reason for change.”

After Reno’s news conference and before Dellinger’s memo was made public, Carl Stern, Reno’s chief spokesman, said that the attorney general had not sought and would not issue “a formal opinion” on Proposition 187. “We’re not in the business of pre-clearing state ballot issues,” he said.

The proposition is likely to be challenged in the courts if it is passed.

Reno, for her part, noted that reporters had been asking her about 187 “for the last five weeks. And rather than say, ‘there’s serious difficulties,’ I thought we should be informed one way or the other. . . . Everyone recognizes that this is an issue that has got to be addressed, that there are constitutional issues that have got to be addressed with respect to it, and that we should do so.”

Stern said there is no further legal research being done by the department on Proposition 187 at this time.

Proposition 187 includes a clause, common in statewide initiatives, saying that if any portion of the measure is held invalid, other portions would remain in effect.

Times staff writer David Savage contributed to this story.