Tuesday, June 7, 2011
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U.S. High Court Declines to Hear Challenge to Alien Tuition Law
By KENNETH OFGANG, Staff Writer
The United States Supreme Court yesterday declined to hear 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, without comment, denied a certiorari petition 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 state Supreme Court ruled last November, in Martinez v. Regents of the University of California (2010) 50 Cal. 4th 1277, that federal law does not prohibit the state from granting the in-state tuition rate to persons who lack lawful immigration status.
State Law
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 argued that the state law violated the Fourteenth Amendment Privileges and Immunities Clause and was preempted by 8 U.S.C. § 1623, which was enacted as part of federal immigration reform in 1996.
Federal Law
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.”
The UC has estimated that 70 percent of students who have relied on the statute to seek the in-state tuition rate have been U.S. citizens.
Justice Ming Chin, writing for a unanimous court, agreed with the state and its amici that the law is constitutional and not preempted.
“Because the exemption is given to all who have attended high school in California for at least three years (and meet the other requirements), and not all who have done so qualify as California residents for purposes of in-state tuition, and further because not all unlawful aliens who would qualify as residents but for their unlawful status are eligible for the exemption, we conclude the exemption is not based on residence in California,” the justice wrote.
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