Calif. Supreme Court Will Hear Case Challenging In-State Tuition to Illegal Aliens

By Fred Lucas | January 2, 2009 | 6:09 PM EST

( - The California Supreme Court will hear a case on the legality of granting in-state tuition to illegal aliens attending public colleges, potentially setting a national precedent for nine other states that allow the same discount.
Just before Christmas, the California court announced it would hear the case of Martinez v. Regents of University of California. The plaintiffs in the class action--42 students from 19 different states attending public colleges in California--contend the state violated federal law by making them pay higher tuition than other non-California residents who got a tuition break.
The lawsuit could require compensation for every out-of state student attending a public higher education institution in California, said Michael Heathman, co-counsel for the plaintiffs and general counsel for the Immigration Reform Law Institute.
The states of Illinois, Kansas, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah and Washington also provide discounted college tuition to illegal aliens.
Those state laws will almost certainly be affected by the final outcome of the California case, Heathman said, even though the case is in state court.
“California is a prominent jurisdiction,” Heathman told “The fact that it is a state court is not that much of a draw back.”
A state judge dismissed the initial complaint filed in 2005, but in September, a three-judge appeals court panel reversed the lower court ruling and determined the trial courts must hear the case.
On Dec. 22, the California Supreme Court announced that it would review whether the state law first enacted in 2001 that “authorizes undocumented aliens and other non-residents who attend and graduate from a California high school to pay in-state tuition for post secondary education violates” federal law. Also, the high court will review whether the in-state tuition law “violates the rights of non-resident students under federal law in violation of the privileges and immunities clause of the Fourteenth Amendment.”
It could be months before the high court hears the case, Heathman said.
The 1996 federal Illegal Immigration Reform and Responsibility Act says, “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a state (or political division) for any post secondary education benefit unless a citizen or national of the United States is eligible for such a benefit.” Further, the 1996 welfare reform law states that anyone in the country illegally is not eligible for state or local benefits, including higher education benefits.
The state of California argued that its tuition discount was not a benefit because it did not provide monetary payments, and that it was based on the students having attended a California high school for three or more years and having graduated from the school. Thus, it wasn’t a special benefit just for immigrants.
In fact, non-California U.S. residents are eligible if they attended a California high school for three years. Examples include a student attending a high school boarding school or a graduate student who had lived outside of California while earning their undergraduate degree. A report in March from the University of California system says that 70 percent of students receiving the discount are legal residents.  
The state also argued that students who are illegal and are receiving the tuition discount are required to pledge to seek legal residency.
The appellate court ruled, “The vast majority of students who attend a California high school for three years are residents of the state of California.” The opinion continued that the in-state tuition law “thwarts the will of Congress.” On the pledge to seek legal residency, the court said, “This is an empty, unenforceable promise contingent upon some future eligibility that may or may not ever occur.”
The appeals court ruling was based on “flawed legal analysis,” said Josh Bernstein, director of federal policy for the National Immigration Law Center, among the organizations that asked the state’s highest court to review the appellate decision.
“It would be extremely unfortunate if this intermediate court decision were upheld,” Bernstein said in a statement. “The affected students are talented high achievers who grew up in California and persevered against the odds to graduate from high school and meet the qualifications for higher education. … The elected representatives and governor of California, as well as legislators in nine other states where the majority of undocumented immigrants live, have determined that it is a wise policy to charge these students an affordable tuition.”
About 80,000 students pay higher tuition to attend California public universities and colleges because they are from out of state, Heathman said. He said there are only two ways for the case to go after the California Supreme Court rules.
“If the ruling is upheld, we’ll have to figure out how the students will get the $2.5 billion,” he said. “If it is overturned, it will go to the U.S. Supreme Court.”