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Hastings International and Comparative Law Review

Authors

Stephen Knight

Abstract

In November 1994, California voters approved Proposition 187, which would deny basic social services such as education and health care to persons determined by state authorities to be in the country in violation of federal immigration laws. Enforcement of the proposition has been stayed pending the resolution of numerous lawsuits. The education provisions, in particular, are being challenged as violations of federal and state guarantees of equal protection, of state and federal privacy rights, and of international law.

This Note contends that the total denial of education to a class of persons in the United States is inconsistent with international human rights law. It explores the status of the right to education under customary international law. Strong evidence that such a right exists is found in an array of international treaties, national constitutional guarantees, and in state practice.

Next, with the guaranteed right to education in the background, the Note focuses on Proposition 187 as a violation of the International Covenant for Civil and Political Rights (the ICCPR). Also considered is whether, in the administration of federal immigration law, state school officials can be considered "competent authorities" as required by the ICCPR.

Finally, this Note highlights Proposition 187's conflict with those ICCPR provisions pertaining to family, privacy, and children's rights. Proposition 187's violation of this body of international authority protecting the rights of aliens should provide courts in the U.S. with significant persuasive authority as they confront the legality of the mass expulsion of alien children from public schools.

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