In-state tuition for illegal immigrants survives, Supreme Court declines case

The US Supreme Court refused on Monday to examine a California law that allows illegal immigrants to attend state colleges and universities at preferential in-state tuition rates that are roughly one-third the cost charged to students from out-of-state.

Under the state law any individual – regardless of immigration status – who graduates from a California high school after attending for three years qualifies for the same tuition discount offered to California residents.

The discounts apply at all public universities in the state, including the system’s most prestigious and highly-competitive institutions.

Eight other states have enacted similar provisions, offering illegal immigrants in those states the same in-state tuition discount offered to state residents. Those states are Illinois, Kansas, New Mexico, Nebraska, New York, Texas, Utah, and Washington. Oklahoma passed a similar law, but later repealed it.

A group of out-of-state students filed a lawsuit challenging the California law. The suit says the state measure conflicts with and is preempted by a 1996 federal immigration statute that forbids states from offering resident tuition rates to any illegal immigrant unless the state offers the same preferential tuition rates to all US citizens regardless of their state residency.

A state judge dismissed the suit, but a California appeals court ruled that the state provision was preempted by the federal immigration law.

The California Supreme Court reversed that decision, ruling that the state law did not confer a benefit on illegal immigrants based on their residence in California.

The state law based the preferential tuition award on criteria other than the student’s state of residence, the state high court said. The in-state tuition is granted on the basis of attendance at and graduation from a California high school. Although most graduates from California schools do, in fact, reside in California, the high court reasoned that not all graduates are residents.

Minor children of out-of-state parents who attend boarding schools in California qualify for resident tuition rates. So do students who live in an adjoining state or country and attend high school in California.

The state supreme court said if Congress intended to impose a ban on illegal immigrants receiving in-state tuition it could have done so. Instead, Congress restricted only the use of residence as a criterion, the court said, but it did not bar states from identifying other criteria to award the in-state discounts.

In urging the US Supreme Court to take up the case, Kris Kobach, a lawyer for the students, said the congressional measure is aimed at blocking the provision of benefits to illegal immigrants. He said Congress wanted to reduce any incentive for undocumented immigrants to enter or remain in the country unlawfully.

“Congress was concerned about states offering illegal aliens a particular benefit – resident tuition rates or the functional equivalent,” he wrote in his brief. “California spends in excess of $208 million each year subsidizing the tuition of illegal aliens under the [California law],” he said.

Julie Weng-Gutierrez of the California attorney general’s office urged the justices to dismiss the appeal, saying the out-of-state students lacked the necessary legal standing to bring the case. She said their lawsuit was aimed at fighting a generalized grievance over the state’s alleged noncompliance with federal law rather than a particularized and personal injury the resolution of which would directly benefit them.

Even if they won their suit, a favorable ruling would not reduce their tuition rates, she wrote.

Ms. Weng-Gutierrez added that there was no disagreement among the circuit courts of appeal on the issue of in-state tuition rates for illegal immigrants necessitating the high court’s intervention.

She noted in her brief that 500 children who are residents of an adjoining state or country are attending California high schools. She added that 5,000 to 6,000 children of undocumented immigrants graduate each year from California high schools.

Ethan Schulman, a lawyer for the regents of the University of California, also urged the Supreme Court to dismiss the appeal. He said the California legislature did not defy Congress in passing the in-state tuition law. State lawmakers “carefully tailored that statute to comply with federal law,” he said.

The California law’s criteria (graduation from a California high school and three years attendance) are not the same as residence, nor are they a de facto or surrogate residency requirement, Mr. Schulman wrote, echoing the California Supreme Court decision. The state court opinion continues: “Congress specifically referred to residence – not some form of surrogate for residence – as the prohibited basis for granting unlawful aliens a postsecondary education benefit.”

The case is Martinez v. Regents of the University of California (10-1029).