Sunday, October 12, 2008

In California, Uncertainty on Immigrant Student Tuition

By Elizabeth Redden
Inside Higher Education
September 17, 2008

In reinstating a lawsuit challenging tuition policy Monday, a California appeals court unanimously found that a state statute extending lower in-state tuition rates to illegal immigrants conflicts with federal law and “thwarts the will of Congress.”

California is one of 10 states that makes undocumented students eligible for in-state tuition rates. In California’s case, students can be exempt from paying nonresident rates if they graduated from and attended a California high school for three or more years and, in the case of undocumented students, if they file an affidavit stating intent to legalize their status if they become eligible to do so.

On a federal level, the U.S. Court of Appeals for the Tenth Circuit dismissed a challenge to a similar law in Kansas in 2007 because the plaintiffs were found to lack standing.

In the appeal court’s ruling in Martinez v. Regents of the University of California, which had earlier been dismissed by a trial court, the panel of three judges defined the central question at hand as whether the state’s authorization of in-state tuition rates for illegal immigrants violates federal law, which maintains: “Notwithstanding any other provision of law, an alien who is not lawfully present in the United States 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 defendants — spanning all three of California’s public university and college systems — held that the state statute does not conflict with federal law because (1) in-state tuition is not a “benefit,” as it’s defined under federal law, and because (2) rather than being extended “on the basis of residence within a state,” lower tuition rates for illegal immigrants are conditioned on California high school attendance and graduation.

The appellate court rejected the colleges’ arguments on both counts, finding, on the first point, that significantly cheaper in-state tuition is in fact a “benefit.” Furthermore, the judges write, “the three-year attendance requirement at a California high school is a surrogate residence requirement.”

The section of California’s education code at issue here “falls within the principle of implied preemption in that it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” the appeals court found. The judges returned the case for consideration at the lower trial court level.

“I think it’s going to be very difficult for the defendants to defend this policy, in that the higher court, the appellate court, has already decided that ...this one section of the education code is preempted by federal law,” said Ralph W. Kasarda, a staff attorney for the Sacramento-based Pacific Legal Foundation, which filed a brief in support of the plaintiffs.

Filed as a class action suit, the plaintiffs are a group of U.S. citizen students (or tuition-paying parents). The students are from other states but are enrolled at California public colleges at nonresident tuition rates. They argue that the high school attendance requirement “illegally discriminates” against them “by denying them a benefit provided to illegal aliens.”

“The State of California here tried to claim that they carefully chose their words in the statute in such a way to evade Congress’ intent and find a loophole in the statute. And what the court said was, ‘No, no such loophole exists,’ ” said Kris W. Kobach, a professor of law at University of Missouri at Kansas City who is one of two lead lawyers for the plaintiffs.

While the California appeals court decision is not binding in other states, it will likely have an impact beyond the state’s borders, Kobach said. “Frequently you will hear of states considering nearly identical statutes as the California law, and one of the arguments that is made is, ‘California’s law has never been struck down. None of these other laws have been struck down or held to be in violation of federal law, why don’t we go ahead and do it?’ Now every state legislature in the country will be put on notice.”

“It should serve as a shot across the bow to the other nine states that they are potentially exposed to liability because of their statutes,” Kobach continued.

Christopher M. Patti, university counsel for the UC System, said that while lawyers are still analyzing the opinion, “We are considering the possibility of a petition for review in the California Supreme Court.”

“I think that in any appeal the major focus would likely be on this issue of whether this is a residency-based requirement,” said Patti. “The legislature thought about that issue and tried to fashion a bill that complied with federal law, and we think they did that successfully. So that’s something that if there’s an appeal, the Supreme Court is going to have to grapple with.”

As of now, however, “the law is still in full effect, and [the decision] should not have any immediate impact on the colleges,” said Steven Bruckman, executive vice chancellor and general counsel for the California Community College System. He estimated that about 20,000 community college students, most of whom are undocumented immigrants, would lose their eligibility for cheaper resident tuition if the law were ultimately declared invalid.

“Our mission is to provide broad access to education. A court ruling that would limit access to students is disappointing to us,” he said.

“We will fight it as long as it is necessary to clarify this,” said Michael A. Olivas, a professor and expert on higher education and immigration law at the University of Houston. He faulted the California appeals court for misreading laws relative to residency. “What federal law requires is that people who have access to this status of being a resident may not be given any more advantage if they’re undocumented than if they’re a citizen. I say that’s fine. California still requires that you have been there 12 months [to declare residency]. The undocumented don’t get it by 11 months.”

Olivas disagreed with the assertion that the decision is relevant in other states, although he acknowledges it is being watched widely. “No other state is bound by what one state does, and they’re particularly not bound by it when the state got it wrong. They weren’t bound by it when the trial court in effect got it right.”

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