Metropolitan News-Enterprise


Tuesday, November 16, 2010


Page 1


Supreme Court Upholds In-State Alien Tuition Law


By STEVEN M. ELLIS, Staff Writer


The California Supreme Court yesterday unanimously upheld a state law that gives in-state college tuition to students who attended California high schools but lack legal immigration status.

The justices ruled that the statute did not violate federal law prohibiting states from making illegal immigrants eligible for postsecondary education benefits because the state provision did not rely on residence to grant eligibility for an exemption from out-of-state tuition rates.

Writing for the court, Justice Ming W. Chin observed that Government Code Sec. 68130.5 exempts anyone who attended high school in California for at least three years, in addition to other requirements, not just residents. He also noted that the provision did not automatically grant eligibility to aliens who would otherwise qualify as residents but for their unlawful status.

The law, passed in 2001 as AB 540, exempts students, including those “without lawful immigration status,” from the out-of-state rate if they met the attendance requirement, 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.

A group of college students who were forced to pay out-of-state tuition to attend California state colleges and universities challenged the law in a 2005 class action against the Regents of the University of California and others, including officials representing the California State University System and the California Community Colleges.

The plaintiffs argued that Sec. 68130.5 was preempted by federal immigration law providing 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.”

The Third District Court of Appeal, reversing a Yolo Superior Court judge’s decision, ruled in 2008 that the state could not grant the in-state tuition rate to persons who lack lawful immigration status unless it gave the same rate to citizens regardless of California residence.

But Chin—adopting the term “unlawful alien” to avoid the “pejorative” connotations of the term “illegal alien” while staying true to the statutes’ terminology—commented that the exemption “cannot be deemed to be based on residence for the simple reason that many nonresidents may qualify for it.”

He explained:

“[S]ection 68130.5’s criteria are not the same as residence, nor are they a de facto or surrogate residency requirement. Congress specifically referred to residence—not some form of surrogate for residence—as the prohibited basis for granting unlawful aliens a postsecondary education benefit.”

The justice acknowledged the plaintiffs’ argument that the statute likely represented an attempt by the Legislature to avoid the federal prohibition, but wrote that “the mere desire to avoid the restrictions provides no basis to overturn the legislation.”

Kansas attorney and conservative legal scholar Kris Kobach—who helped draft Arizona’s tough new immigration law and who was elected earlier this month as Kansas’ next secretary of state—represented the plaintiffs and could not be reached for comment.

Mark G. Yudof, president of the UC system, praised the decision.

“Through their hard work and perseverance, these students have earned the opportunity to attend UC,” he said. “Their accomplishments should not be disregarded or their futures jeopardized.”

The school noted that nearly 80 percent of the 2,019 students who qualified under the law for tuition exemptions at UC in the 2008-2009 school year were U.S. citizens or legal residents. It also said that documented students have accounted for over two-thirds of those benefiting from the exemption in every year since the school implemented the law in 2002.

Representatives of the Asian Pacific American Legal Center, the Asian Law Caucus and the Mexican American Legal Defense and Educational Fund—which filed amicus briefs in support of the law—also hailed the decision.

APALC Executive Director Stewart Kwoh said that Asian Pacific American undergraduates make up at least 40 percent of undocumented AB 540 students in the UC system alone, constituting the second largest group of undocumented students in the system.

ALC Executive Director Titi Liu pointed out that similar suits have been brought in Texas and Nebraska. She said that the decision had “significant legal and policy implications that could seriously affect immigrant youth throughout the nation.”

MALDEF President and General Counsel Thomas A. Saenz said that the decision vindicated the process the Legislature followed in drafting the statute to comply with federal law. He added that the decision meant that “California’s institutions of higher education will continue to be strengthened by the inclusion of some of our state’s brightest and most successful students, who simply lack legal status due to the nation’s failure to enact the widely-supported DREAM Act.”

That act, which Congress is under pressure to address during the upcoming lame-duck session, would allow some undocumented young people to gain legal status by attending college or serving in the military.

The case is Martinez v. The Regents of the University of California, 10 S.O.S. 6398.


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