|
A federal district court has dismissed a challenge to a
Kansas state law that deems individuals who attended accredited high
schools in Kansas for three years and either graduated from such a high
school or earned a general educational development (GED) certificate
issued in Kansas to be residents of Kansas for purposes of paying
tuition and fees at state public institutions of higher education,
regardless of their immigration status. Currently nine states,
including Kansas, have laws that permit undocumented students to pay
in-state tuition rates if they attended and graduated from high schools
in the state. The lawsuit that has now been dismissed in its entirety
was the first and only court challenge to such a law to date.
The lawsuit was brought in July 2004 by a
group of U.S. citizen students at Kansas institutions of higher
education and their parents. All the plaintiff students attended high
school in and are regarded as being residents of states other than
Kansas, and thus are classified as "nonresidents" of Kansas for tuition
purposes. The plaintiffs are represented by the Federation for American
Immigration Reform (FAIR), an immigration restrictionist organization,
and Kris Kobach, a former legal advisor to former Attorney General John
Ashcroft who at the time the suit was brought was unsuccessfully
attempting to win a seat in the U.S. House of Representatives. The
plaintiffs raised an assortment of claims, including that the Kansas law
-- K.S.A. 76-731a -- conflicted with the federal government's regulation
of nonimmigrant students, that it violated 8 USC sec. 1623, and that it
violated equal protection by unlawfully discriminating against U.S.
citizens. The plaintiffs sought to invalidate the Kansas law and enjoin
the state from charging undocumented students tuition at "resident"
rates.
Both the defendants (the governor of Kansas
and state officials and institutions of public higher education) and the
intervenors (three students and two intervening organizations) moved to
dismiss the complaint, and the district court now has granted the
motions. With respect to all but one of the plaintiffs' claims -- the
claim based on 8 USC sec. 1623 -- the court found that the plaintiffs
failed to meet a fundamental requirement for suing in federal court:
standing to sue. With respect to all of their claims based on
particular or general provisions of immigration law, the court found
that the "plaintiffs . . . failed to demonstrate that they are injured
in fact" by K.S.A. 76-731a.
The court examined in more detail the claim
based on 8 USC sec. 1623, a provision enacted as part of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
It provides, in pertinent part, that "an alien who is not lawfully
present in the United States shall not be eligible on the basis of
residence within a State . . . for any postsecondary education benefit
unless a citizen or national of the United States is eligible for such a
benefit (in no less an amount, duration, and scope) without regard to
whether the citizen or national is such a resident." The plaintiffs
argued that this provision requires that a state which provides
eligibility for in-state tuition to any undocumented student must also
provide in-state tuition to all U.S. citizen students residing in other
states. The defendants and intervenors contended rather that the
federal statute requires only that a state statute that provides for
undocumented students to be eligible for in-state tuition must also
provide for in-state tuition for similarly-situated U.S. citizens
regardless of residence -- those who meet the statute's other
requirements, in this case attending and graduating from high school in
Kansas.
Without resolving the proper interpretation
of 8 USC sec. 1623, the court concluded that the statute does not create
a private right of action. The court found that, while Congress
specifically designated the secretary of the Dept. of Homeland Security
to enforce section 1623, it neither expressly nor impliedly intended to
create a private right of action to enforce the statute.
Finally, the court found that the plaintiffs
lack standing to bring their equal protection claim: "Plaintiffs have
not been denied any benefit by K.S.A. 76-731a because they cannot
fulfill the lawful, non-discriminatory requirements or qualifications
for the benefit." The court found that, as with the immigration claims,
the plaintiffs failed to demonstrate any injury on which to base their
equal protection claim.
The intervenors in the case are represented by
Multicultural Education, Training and Advocacy, Inc. (META, Inc.), the
ACLU Immigrants' Rights Project; the pro bono law firm Shook, Hardy &
Bacon, LLP, and NILC. The plaintiffs have filed an appeal of the ruling
to the U.S. Court of Appeals for the Tenth Circuit.
In the period since the district court issued
its ruling, the conservative Washington Legal Foundation has filed
separate complaints with the Dept. of Homeland Security against the
states of Texas and New York, charging that those states' in-state
tuition policies benefiting undocumented non-U.S. citizen students
living in Texas and New York violate the civil rights of U.S. citizens
who live outside those states. The complaints were filed with the DHS's
Office of Civil Rights and Civil Liberties. According to published news
reports, the DHS has not yet indicated what kind of action, if any, it
will take with regard to the complaints.
Legislation previously introduced in the
Senate -- the Development, Relief and Education for Alien Minors (DREAM)
Act (S. 1545 in the 108th Congress) -- would repeal section 1623 and
give states greater freedom to provide higher education benefits to
undocumented students. The DREAM Act would also provide undocumented
students with a means to obtain legal status.
Day v.
Sebelius, No. 04-4085-RDR (D.Kan., decided July 5, 2005).
--By Linton Joaquin, NILC
executive director
|
