Metropolitan News-Enterprise


Tuesday, September 16, 2008


Page 1


Court of Appeal Revives Challenge to Law on Aliens’ Tuition




The Third District Court of Appeal yesterday reinstated a challenge to a state law that gives in-state college tuition to aliens who are in the country illegally if they attended California high schools.

Federal law prohibits the state from granting the in-state tuition rate to persons who lack lawful immigration status unless it grants the same rate to all U.S. citizens regardless of California residence, Justice Richard Sims III wrote for the court.

The justices reinstated claims by persons who pay out-of-state tuition to attend the University of California, the California State University, or community colleges that Education Code Sec. 68130.5 is preempted by 8 U.S. Secs. 1621 and 1623. The court also held that the plaintiffs may amend their complaint to allege violation of the Fourteenth Amendment’s Equal Protection and Privileges and Immunities clauses.

Immigration Reform Law

Sec. 1623, part of the 1996 immigration reform law known as IIRIRA, provides that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State...for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit...without regard to whether the citizen or national is such a resident.”

Sec. 1621, part of the 1996 welfare reform legislation, generally provides that a person who is in the country illegally “is not eligible for any State or local public benefit,” including “any... postsecondary education...benefit” except “through the enactment of a State law after [Aug. 22, 1996], which affirmatively provides for such eligibility.”

Yolo Superior Court Judge Thomas Warriner dismissed the suit after sustaining demurrers to all causes of action. In support of those demurrers, the defendants argued that in-state tuition is not a “benefit” and that it is granted to illegal aliens based on their having attended and graduated from a California high school, and not on the basis of  “residence.”

They also contended that Sec. 68130.5 is not preempted by Sec. 1621 because it was enacted after the federal statute and “affirmatively provides” for in-state tuition for students who lack legal immigration status but meet the statute’s eligibility requirements.

 But Justice Richard Sims III, writing for the Court of Appeal, said the trial judge was in error with respect to the two federal statutes.

Fee Difference

The huge differential between in-state and out-of-state tuition and fees—more than $17,000 per semester at UC, more than $10,000 on average at CSU, and more than $1,600 for a student with an average load of 15 credits at a community college—makes the lesser rate a “benefit,” Sims wrote.

Nor, the justice said, is there any meaningful distinction between granting the lesser rate on the basis of where the student attended high school and doing so based on “residence.”

The justice explained:

“The three-year attendance requirement at a California high school is a surrogate residence requirement.  The vast majority of students who attend a California high school for three years are residents of the state of California.  Section 68130.5 thwarts the will of Congress manifest in title 8 U.S.C. section 1623.”

For similar reasons, Sims went on to say, the state law is preempted by Sec. 1621. The fact that it was later enacted does not spare it based on the “affirmatively provides” language, he explained, because there is no reference to Sec. 1621 in the state law.

With respect to the constitutional claims, the justice wrote, the pleading was deficient because it did not allege on its face that illegal aliens were being given a benefit denied to U.S. citizens from other states, who, on the face of the statute, qualify for the lesser rate if they attended a California high school for at least three years and graduated..

The plaintiffs alleged on appeal, however, that some campuses have implemented the state statute by denying in-state tuition to citizens who graduated from California high schools but moved out of state before returning for college. If this is true, the justice wrote, there may be a constitutional violation, which the plaintiffs may allege by amendment.

The plaintiffs were represented by Kris W. Kobach of the Immigration Reform Law Institute and Michael J. Brady of Ropers, Majeski, Kohn & Bentley. Kobach is a law professor at the University of Missouri-Kansas City and the chairman of the Kansas Republican Party, and has been involved in other lawsuits involving the rights of undocumented immigrants around the country.

The defendants were represented by the firm of Howard Rice Nemerovksi Canady Falk & Rabkin.

Amicus briefs were filed for the Pacific Legal Foundation on behalf of the plaintiffs and for the Lawyers’ Committee for Civil Rights, the Mexican American Legal Defense and Educational Fund, and other groups and individuals in support of the defendants.

The case is Martinez v. Regents of the University of California, 08 S.O.S. 5512.


Copyright 2008, Metropolitan News Company