• April 20, 2014

California Supreme Court Upholds Law Giving In-State Tuition to Illegal Immigrants

California's Supreme Court on Monday upheld a state law that allows some illegal immigrants to pay lower, in-state tuition, preserving the benefit for tens of thousands of students and potentially sending the issue to the U.S. Supreme Court.

The unanimous decision strengthens the legal footing of one of the main tools states have used to make public colleges more affordable to illegal immigrants. Nine other states have similar laws, and officials have watched the California case as an indicator of whether those laws will hold up in court.

In the decision, Justice Ming W. Chin wrote that providing the in-state tuition benefit for any student—including an illegal immigrant—who attends a California high school for three or more years and graduates does not violate federal immigration law.

The decision reverses a 2008 appeals-court ruling that held the tuition benefit was unconstitutional. That ruling said the law had been pre-empted by a 1996 federal statute that prohibits providing a postsecondary benefit to illegal immigrants, based on their state residency, if the same benefit was not available to legal residents.

But Justice Chin wrote that the "fatal flaw" in the plaintiff's arguments is that the in-state tuition benefit is not, in fact, based on California residence. Instead, students must show that they have attended and graduated from a California high school.

"Congress specifically referred to residence—not some form of surrogate for residence—as the prohibited basis for granting unlawful aliens a postsecondary-education benefit," Justice Chin wrote.

Justice Chin cited statistics that show that a majority of students at the University of California who qualify for in-state tuition are legal U.S. residents, not illegal immigrants, who may have graduated from high school in California and then moved elsewhere. Given that fact, the state law cannot be deemed to be based on residence, he wrote.

The lawsuit, Martinez v. Regents of the University of California, was brought by out-of-state students at California colleges who said granting the in-state tuition benefit to illegal immigrants discriminated against them. Kris W. Kobach, a lawyer for the plaintiffs and the secretary of state-elect of Kansas, said they would appeal the ruling to the U.S. Supreme Court.

It is unclear whether the U.S. Supreme Court will agree to hear the appeal. Mr. Kobach has also filed suit to invalidate an in-state tuition law in Nebraska, and an anti-illegal immigration group sued colleges in Texas last year to try to block that state's law.

National Implications

Illegal immigrants have a constitutional right to attend public school until the 12th grade, but once they reach college, they are ineligible for federal financial aid. States have become a battleground for whether illegal immigrants should be able to attend public college and how much they should pay.

Alabama, Georgia, and South Carolina ban illegal immigrants from some or all public colleges. Ten states—including Florida, New York, and Texas—allow them to pay in-state tuition if they meet a high-school-attendance requirement.

In California an estimated 40,000 students qualify for in-state tuition under the provision, the vast majority in the community-college system. (Not all students who qualify for the exemption are illegal immigrants.) Full-time out-of-state students pay several thousand dollars more each year to attend community college, about $11,160 more at California State University, and about $23,000 more at the University of California.

College officials, who defended the law in court, cheered the ruling on Monday and said the state law was crucial for students who would otherwise be unable to afford college, especially with recent large increases in tuition at public universities.

"The bottom line is that this decision allows undocumented students who are eligible for this to continue to enroll in public higher education in California," said Alfred R. Herrera, an assistant vice provost at the University of California at Los Angeles.

Even with the in-state tuition exemption, illegal immigrants still face an uphill battle to be able to afford college, Mr. Herrera said. Since the University of California raised its tuition by 32 percent, he said, "at UCLA alone, there were over 20 undocumented students we know of that couldn't enroll because they couldn't pay the fees."

The case has drawn national attention. Two prominent Republican congressmen, Lamar S. Smith of Texas and Steve A. King of Iowa, filed a friend-of-the-court brief arguing that the California law was unconstitutional and had led to the misspending of public resources.

Congressional Democrats have repeatedly tried and failed to pass legislation, known as the Dream Act, that would provide a path to citizenship for some illegal immigrants and would explicitly allow states to offer them an in-state tuition benefit. The majority leader of the U.S. Senate, Harry Reid of Nevada, has said he would attempt to bring the bill up for consideration during the coming months, but the measure's chances are seen as slim during the lame-duck session.


1. cwaynehood - November 15, 2010 at 03:40 pm

But the children of USA citizens cannot get this break in states where they do not reside. Who pays for this?

2. wendyxqm - November 15, 2010 at 04:00 pm

This is not only for undocumented students; there are U.S. citizens who also benefit. Read AB 540. However, this is a victory for undocumented students who face so many obstacles in completing their education. The attack on undocumented students is unwarranted and racist.

3. abichel - November 15, 2010 at 04:28 pm

There is nothing "racist" about preserving a privledge of citizenship for citizens. If out-of-state students have to pay more for tuition than their legal in-state counterparts then at the very least non-citizens should be expected to do the same. This ruling is nothing short of a crime against American citizens - of all racial and ethnic heritages alike.

4. nacrandell - November 15, 2010 at 04:30 pm

So an illegal immigrant gets in-state but a student from the same home country, and still residing in that country, applying to the same school has to pay out of state?

There is a time for compassiion and then there is a time for reasonable thought and application of the law.

5. amnirov - November 15, 2010 at 05:28 pm

The shrill cry of "racism" is only ever intended to chill debate and squash any form of dissent. It is the first and last tactic of an utter douche, and those who use it on these forums should be immediately shamed for doing so.

Having said that, I see no reason why there should be separate in-state or an out-of-state tuition rates. Tuition at public institutions is already too low. There's no way that the system can support itself while anyone gets a break.

One tuition rate for all.

6. uconnche - November 15, 2010 at 06:12 pm

Once these students pay for and earn a degree, they are still unable to get legal employment in the US. We need to welcome these graduates into the workforce legally. If not, these graduates, a valuable resource for our country, will be mowing lawns and cleaning houses.

7. mjohnso9 - November 15, 2010 at 07:09 pm

wendyxqm is correct. It IS indeed racist to discriminate against a population whose status as "illegal immigrants" is intrinsictly tied to their enthnicity; moreover those of you (like the utterly inept amnirov who fails to contribute anything of import here) that are not knowledgeable about institutional racism clearly are out of your depths. The REAL issue here is NOT, as many people have inaccurately concluded, about disporporitionate tuition rates based on RESIDENCY. The REAL issue is about tuition rates based on EDUCATION. The article describes how the UNANIMOUS

8. mjohnso9 - November 15, 2010 at 07:13 pm

wendyxqm is correct. It IS indeed racist to discriminate against a population whose status as "illegal immigrants" is intrinsictly tied to their enthnicity; moreover those of you (like the utterly inept amnirov who fails to contribute anything of import here) that are not knowledgeable about institutional racism clearly are out of your depths. The REAL issue here is NOT, as many people have inaccurately concluded, about disporporitionate tuition rates based on RESIDENCY. The REAL issue is about tuition rates based on EDUCATION. The article describes how the UNANIMOUS decision of the courts turned on whether or not students had stasified two criteria: (1) minimum attendance of 3 years at at CA high school and (2) graduation.

Where the students lived was irrelevant. And for those of you who conflate tuition rates with budgetary funding, one must question why hasn't either the legistature or the citizens of CA (through write in Proposition) expressed their will to explicitly denied these students the "in state" rate? Amazing how that little fact has been ignored here...obviously it is because California citizens have decided as a matter of public policy to defend the status quo and all that necessarily implies.

9. abichel - November 15, 2010 at 07:28 pm

You are either an American citizen or a legal resident of this country or you are not. Simple enough? Nothing else matters, and the law should be applied accordingly. In addition, I like the idea of a single tuition rate, period. At the very least it helps out those living on/near state borders.

10. archman - November 15, 2010 at 07:30 pm

It appears that many of the comments here reflect an incomplete reading of the article. The judge's ruling has nothing to do with residency, at all. If kids go to high school in California (regardless of where they are from, Texas, Mexico, Mars, wherever), they are eligible for the in-state tuition rate. That's the way the judge interprets the California law for this.

11. amnirov - November 15, 2010 at 07:36 pm

Hey, mjohnso9, argumentum ad capitalization is a nouveau fallacy, so cut it out. By the way, that was nice how you managed to conflate race and ethnicity. EPIC FAIL.

Now before you get your underwear in a twist, let me say that I agree with you about the irrelevant nature of residency and am in favor of extending citizenship to anyone who wants it. I disagree with the notion of someone being "illegal" or even "undocumented."

But for you and wendyxqm to instantly shout "racism" is absurd and insulting to the intellect of all of those around you.

I'm sure that the people opposed to illegals from Mexico getting a break on tuition would be equally opposed to someone from Poland getting a similar deal.

Question: have you ever paid out of state tuition? It sort of sucks. Matter of fact, it sucks to the point where it would be more fair for there to be a uniform tuition--not program dependent--somewhere in the middle. Then this moronic argument could go away.

So put that in your pipe and smoke it.

12. princeton67 - November 15, 2010 at 07:39 pm

(1)No one - not the Judge, the article, nor the commentators - has mentioned what (I consider to be) the 800-lb. factoid: California, or any state, does accept/gather/demand income, real estate, sales, gasoline,,,,taxes from illegal immigrants. These moneys pay for post-secondary educational systems. To demand $$ on the one hand, but deny what that $$ funds on the other, is hypocritical.
(2)Out-of-State tuition reimburses the state for the education of a student who (or whose family) has not paid taxes to/in that state.
(3)Remember, (this from an educator): if a student is out-of-district, he must pay a fee to attend that pubic school. This fee compensates the district for that student's not having paid the school millage portion of his real estate tax. In other words, for an illegal immigrant to be both not a California resident AND a three-year attendee and graduate of a California high school means that he has been paying a fee, quite apart from any taxes.

13. nacrandell - November 15, 2010 at 08:10 pm

From the decision:

"In 2001, effective January 1, 2002, the Legislature added section 68130.5 to the Education Code. (Stats. 2001, ch. 814, § 2.) It provides:
Notwithstanding any other provision of law:
(a) A student, other than a nonimmigrant alien within the meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States Code, who meets all of the following requirements shall be exempt from paying nonresident tuition at the California State University and the California Community Colleges:
(1) High school attendance in California for three or more years..."

It would seem that a law was passed to allow this while no one was paying attention.

And as for taxes - bundling sales and gas with state income is playing with the numbers for an emotional response. California is over budget and shutting down state parks because of this generous and short-sighted attitude.

14. peregrino - November 16, 2010 at 10:44 am

Once again, Kris Kobach has failed to overturn the will of the people who refuse to discriminate. How many of these cases does he have to lose before people realize he functions as a legal agent provocateur for the Immigration Reform Law Institute, the legal arm of F.A.I.R., an anti-immigration group founded by eugenicist and white nationalist John Tanton?

Tanton sees immigration as a "skirmish in a wider war" (see Unguarded Gates by Tanton apologist Otis L. Graham). An important and under-asked question is, who is funding IRLI? I know that the Pioneer Fund and Cordelia Scaife gave early seed money to Tanton. Who are the current armorers in this vicious culture war?

15. edfund - November 16, 2010 at 01:03 pm

@Princeton67: Your third point is wrong, at least as it applies to California public schools. No one can be charged "tuition" to attend another public school -- either within the district or outside of it.

The district to which admission is sought may deny an inter-district attendance request based on, inter alia, its fiscal impact. For every unit of average daily attendance (ADA) transferred, however, the "sending" district loses state general-purpose funding at its per-ADA funding rate and the "receiving" district gains general-purpose funding at its per-ADA funding rate. Accordingly, even if it could do so, there would be no need for the receiving district to charge "tuition." (The only exception is so-called "basic aid" districts whose local property tax revenues are so high that they exceed the state funding guarantee.) As noted, inter-district attendance agreements require the consent of the receiving district, which can deny a request based on, inter alia, fiscal impact. Because a district's per-ADA funding rate (which is based on average cost) typically exceeds its marginal cost per ADA, however, districts with excess capacity usually find it financially advantageous to accept inter-district transfers.

Because of Prop 13, school districts are prohibited from levying additional ad valorem (based on property value) taxes. They can, however, levy per-parcel taxes; this is where your argument has some relevance. Specifically, because the total amount of parcel tax revenue is fixed,incoming students merely reduce the amount of parcel tax revenue per pupil.Residents of districts that levy parcel taxes often use this as an argument to oppose inter-district transfers, i.e. they don't pay their "fair shares." Still, the decision to accept inter-district transfers ultimately rests with the district's school board.

(I apologize for the length of this comment; in a "prior life" I specialized in California school finance!)

16. edfund - November 16, 2010 at 02:49 pm

@Princeton76: I must revise the above comment as it relates to residents of adjacent states or foreign countries.

California law allows a school board, with the approval of the county superintendent of schools, to admit to the district's elementary & secondary schools "[p]upils living in an adjoining state which is contiguous to the school district." As a condition of doing so, the district must enter into an agreement with either the district in which the pupil resides or with his or her parent or guardian, in which the district shall be reimbursed for the total cost of educating the pupil. [California Education Code Sec. 48050]

In addition, a school board, with or without the approval of the county superintendent of schools, may admit pupils "whose parents are or are not citizens of the United States, whose actual and legal residence is in a foreign country adjacent to this state, and who regularly returns within a 24-hours period to said foreign country." [California Education Code Sec. 48051] In this case, the district must, as a condition of enrollment, "require the parent or guardian of such person to pay to the district an amount not more than sufficient to reimburse the district for the total cost of educating the person..." In this case, "[t]he attendance of the pupils shall not be included in computing the average daily attendance...for the purpose of obtaining apportionment of state funds." [California Education Code Sec. 48052].

In sum, school boards may choose to admit pupils who reside either in adjacent states or foreign countries (subject to specified conditions). Such admission is conditional on either the sending school district or the pupil's family reimbursing the district for the total cost of educating the pupil. These pupils do not generate average daily attendance for purposes of state aid computations.

17. juliemoody - November 16, 2010 at 09:59 pm

Yessssssssss! Sanity prevailed.

18. gstef1 - November 16, 2010 at 10:32 pm

@Juliemoody-How is this sane?

19. wdabc - November 17, 2010 at 04:58 am

What are the names of the corporations who are paying illegal immigrant parents enough money to send their illegal immigrant children to UCLA with or without in-state tuition fees?

20. tsb2010 - November 17, 2010 at 10:17 am

This is just one example why California is going down the drain - soon to be followed by the rest of the country, unless we take some action. Spend our tax dollars on illegals - to educate them, to support them, to encourage them to make more babies. Why don't we just open up our borders - or better yet, why don't we spend our tax dollars to pay for colleges in Mexico?

21. breanna - November 30, 2010 at 11:29 pm

This grant is bs, Illegal immigrants shouldn't even be in the United States. If the state knows that they're Illegal, then why don't they deport them back to where they belong? It's stupid laws like that, that cause such problems in the United States. Useful money going down the drain to people who only hurt the country! I understand that America is a wonderful place, so get a green card. Illegals don't pay taxes, and take jobs that citizens need. Why is the country's unemployment so high? The illegal immigrants taking the jobs! So why don't we give them grants to steal better jobs?

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