Supreme Court Appears Likely to Uphold Alien Tuition Statute

Wednesday, October 6, 2010

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Supreme Court Appears Likely to Uphold Alien Tuition Statute

By STEVEN M. ELLIS, Staff Writer

The California Supreme Court yesterday appeared skeptical of 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 and promise to seek to legalize their status.

The justices, in a special session in Fresno, heard arguments in a case brought by college students who were forced to pay out-of-state tuition to attend California state colleges and universities. The students contend that Government Code Sec. 68130.5 is preempted by federal immigration law.

The Third District Court of Appeal, reversing the Yolo Superior Court, ruled in 2008 that 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.

Law’s Exemptions

The 2001 state law exempts students, including those “without lawful immigration status,” from having to pay out-of-state tuition if they attended high school in California for at least three years, graduated or attained the equivalent of graduation, and—if undocumented—file an affidavit stating that they have applied to legalize their status or will do so as soon as they are eligible.

The difference between in-state and out-of-state tuition and fees is more than $17,000 per semester at the University of California system, more than $10,000 on average at the California State University system, and more than $1,600 for a student with an average load of 15 credits at a community college.

The plaintiffs have argued that the state law is preempted, among other provisions, by 8 U.S.C. § 1623. That statute provides that an alien not lawfully present in the country “shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”

San Francisco attorney Ethan Schulman, who represented the UC system, told the high court yesterday that the Legislature crafted the statute carefully, and he rejected suggestions by Justices Joyce Kennard and Ming Chin that it could be construed as an attempt to circumvent federal law.

Statute Defended

Prompted by Justice Kathryn Mickle Werdegar, Schulman also noted that non-residents of California could still qualify for in-state tuition under the statute. He said that since the UC system implemented it, 70 percent of students who have relied on the statute to seek the in-state tuition rate have been U.S. citizens.

Supervising Deputy Attorney General Julie Weng-Gutierrez argued on behalf of California’s community colleges that the state law was not a proxy for residency, and she said that Sec. 1623’s language expressly recognized an exception to Congress’ broad goal of prohibiting benefits. Weng-Gutierrez also pointed out that non-residents would still pay out-of-state tuition if the state statute was invalidated.

Kansas attorney and conservative legal scholar Kris Kobach argued on behalf of the plaintiffs that the California law discriminated against his clients, denying them both equal protection and the privileges and immunities of citizenship in violation of the 14th Amendment. He also asserted that the state statute conflicted with federal law by encouraging continuing illegal presence in the country.

But the justices seemed unwilling to accept Kobach’s contention that Sec. 1623’s second clause—providing that an alien is ineligible for a postsecondary benefit unless “a” citizen or national is eligible without regard to residency—could only coherently be read to require that “all” citizens first be eligible for in-state tuition.

An appeal to the U.S. Supreme Court is expected if the justices uphold the state law. If they do not, Kobach said, his clients would seek a refund of tuition amounts paid in excess of the in-state rate.

The case is Martinez v. Regents of the University of California, S167791.

Yesterday’s special session of the Supreme Court took place at the Fifth District Court of Appeal Courthouse, and high school students from all nine counties in the district—Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare and Tuolumne—were on hand for a first-hand look at the workings of the California courts system. The justices took questions from students for an hour before hearing arguments in Martinez, and appeared initially to press counsel in the case to state arguments with extreme clarity for the benefit of the audience.

The justices yesterday morning also heard arguments in People v. Diaz, S166600, where a defendant sought to suppress evidence obtained by police who, while interrogating him 90 minutes after taking him into custody and seizing his cell phone, retrieved the phone, searched the text message folder and found an incriminating message.

Div. Six of this district’s Court of Appeal ruled in 2008 that the officer’s actions were lawful under the Fourth Amendment as a valid warrantless search incident to arrest.

Gregory Diaz, who later pled guilty to transportation of Ecstacy, contended the search was too remote in time to qualify. His counsel, Lyn Woodward of Pacific Grove, also argued that cell phone message folders, which can store large amounts of personal information, should be given greater constitutional protection than other items an arrestee might carry on his person, such as wallets or purses, and that the search exceeded the traditional rationales for searches incident to arrest: to ensure officer safety and preserve evidence that could be destroyed or concealed.

Supervising Deputy Attorney General Victoria Wilson rejected both arguments, and said that a cell phone or a laptop found on a defendant’s person during an arrest was searchable without a warrant to the extent it was used as a data storage device. She also contended that evidence could be destroyed by delay if the device had an automatic “self-cleaning” function or if data could be deleted by remote access.