• September 4, 2015

Calif. Supreme Court Hears Debate Over a Tuition Benefit for Immigrants

California's Supreme Court heard arguments on Tuesday in a closely watched case over whether a state law that allows illegal immigrants to pay cheaper, in-state tuition violates federal immigration law, and several of the justices appeared in their questions to be leaning toward upholding the state statute.

The case is at the center of a national debate over whether undocumented students who attend high school in the United States should be permitted to pay in-state tuition at public colleges. Nine states have similar laws, and the outcome of the California case could help sway opinion about whether those statutes will remain legally viable.

Critics of the laws argue that they illegally discriminate against U.S. citizens who must pay out-of-state tuition because they live in another state. The critics cite a federal immigration statute that precludes undocumented students from receiving a postsecondary-education benefit, based on their residence in a state, if U.S. citizens are denied the same benefit.

A California appeals court agreed in 2008, ruling that the state benefit violated federal law. But during arguments before the state Supreme Court on Tuesday, several justices appeared inclined to reverse that decision and uphold the in-state tuition law.

The California law, enacted in 2001, promises in-state tuition to any student—including an undocumented immigrant—who graduates from a California high school they have attended for at least three years. Opponents of the law argue that the high-school-attendance requirement amounts to a proxy for whether an undocumented student lives in California. Providing a benefit to an undocumented student based on such a residency test violates the federal law, they argued.

Lawyers for University of California, who argued in defense of the law, say that the high-school-attendance requirement is not a proxy residency test because undocumented immigrants are not the only ones who can qualify. For example, an Illinois student who attends boarding school in California could qualify, as could someone living in New York who returned to California after attending high school there decades ago.

Justice Carol A. Corrigan seemed to agree with the university's lawyers. She noted evidence that 70 percent of University of California students who pay in-state tuition under the provision are, in fact, legal residents of another state. The numbers would seem to indicate that the law does not discriminate against legal residents, she said.

Ms. Corrigan asked a lawyer arguing against the law, Kris W. Kobach, if he believed California would need to allow all U.S. citizens to pay in-state tuition in order to meet the federal test. When he answered yes, she was incredulous. "All? Every single one?" she said.

Such a move would cost the state's universities tens of millions of dollars in tuition revenue, because out-of-state students now pay a considerably higher rate. At the University of California at Berkeley, for example, out-of-state students pay $35,340, while in-state students pay $12,462.

Another justice, Kathryn Mickle Werdegar, appeared to reject the argument that the California law should be preempted by the federal law, which is known as Section 1623. Given that out-of-state students who meet the California law's requirements can also receive the benefit, Justice Werdegar said, "there is no violation of Section 1623, because it is not based on residency."

The court's decision is expected within the next several months.

The in-state tuition benefit is rarely used in some states, but thousands of students receive the benefit each year in California. The state is home to about 40 percent of the 65,000 undocumented students who graduate from American high schools each year, according to estimates from the Pew Hispanic Center.


1. philippe - October 06, 2010 at 09:38 am

If the end result is that any U. S. citizen is entitled to the in-state rate, as one of the attorneys is reported to have said, then there will no longer be any need for a differential schedule, which means state institutions will charge the same amount to everyone, as is the case with private institutions. And of course the new charge will be somewhere between the current in-state and out-of-state rates. This could be another example of "be careful what you wish for, because you may get it." Pushing for in-state rates for everyone doesn't mean that everyone will get the current lower in-state rate, but rather that everyone will pay the same new rate.

2. greenhills73 - October 06, 2010 at 10:49 am

Is there some way the Chronicle can block the spam that is starting to appear fairly regularly on most of the comments sections?

3. sbhikkhu - October 06, 2010 at 12:54 pm

Isn't the more pertinent issue considering whether a student who is not lawfully present in the US can establish domicile whatsoever in the first place?

4. collaccfdn - October 06, 2010 at 03:15 pm

@philippe: what the attorney argued is not that ANY U.S. citizen is entitled to the in-state tuituion, but that ANY U.S. citizen who meets the terms of the law, AB 540, would qualify. AB 540 says that if you attended a California high school for at least 3 years, and you graduated from a California high school, you are entitled to in-state tuition. So this applies not just to undocumented students, but also US citizens who lived and went to school in California, then moved to another state, and established residency elsewhere. In fact, the vast majority of students at the UC system who get in-state tuition due to AB 540 are US citizens. Therefore, the state law should not be in conflict with the federal law.

5. softshellcrab - October 06, 2010 at 06:30 pm

I seriously would put them all onto a prison chain gang. These are illegal law breakers, I don't have a smidgen of sympathy. Mexicans just got done gunning down and murdering an innocent jetskier out with his wife on a border lake. To the devil with these people. They want to come here and work, give them work - a prison chain gang for ten years, with bread and water and minimal health care, if they survive deport them after the 10 years. I don't want to pay for their incarcertation so let them pay for it through work while in prison.

6. parsleylover - October 07, 2010 at 11:59 am

the only reason I can see for providing such benefits to illegals is that it costs more to incarcerate them or for society to deal with the affects of their lack of education than to send them to college. But such logic, while sound, is not justification for further ingraining individuals into society who should not be here in the first place...they are BREAKING THE LAW. Measures such as this one only further complicate the inability of our inept congressional leaders to muster up the support to do something about the immigration problem. I appreciate the diversity immigration brings to this country....and we have laws which recognize that benefit. LET'S ENFORCE THEM.

7. truamerican - October 07, 2010 at 01:05 pm

Undocumented students are illegal immigrants and deserve NO benefits. They have broken into our country and are robbing every American citizen while our government sits on its political thumb. Americans need to stand up and take our country back!

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