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

October 05, 2010

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.