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

November 15, 2010

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.