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By
Josh Bernstein
Director of Federal Policy
The state of
California won a near-complete victory on
Oct. 6 in a
law suit challenging its provision of
in-state tuition at state colleges and universities to undocumented
immigrants who have attended at least three years and graduated high
school (or obtained a GED) in the state. Martinez v. Regents,
No. CV 05-2064 (Cal. Super. Ct. Oct. 6, 2006) (order).
The Martinez case was filed by Kris Kobach, an attorney for
the Federation for American Immigration Reform (FAIR), on behalf of U.S.
citizen residents of other states who alleged, among other claims, that
the California provision discriminates against them and that it
conflicts with federal law. The discrimination claims always bordered
on frivolous, so the key finding of Friday’s decision is that the
California provision is fully consistent with federal law.[1]
California students and educators refer to the challenged law by its
bill number, AB 540. When AB 540 was enacted in Oct. 2001, it was the
second such provision to become law, after Texas’s HB 1403.
Since then,
eight other states have enacted similar
laws; they are Utah, New York, Oklahoma,
Washington, Kansas, Illinois, New Mexico, and Nebraska. A majority of
the undocumented immigrants
in the country live in these ten
states. All of these states provide their in-state tuition rate to
students, regardless of immigration status, who attend high school for a
certain number of years in the state, graduate from high school or
obtain a GED in the state, and who, if they are not yet permanent
residents, sign an affidavit promising to apply for permanent residency
whenever they become eligible to do so.
In recent years a number of other states have considered enacting
similar provisions, in some cases coming very close to doing so. But
supporters have often been thwarted by the claims of FAIR and others
that such provisions violate federal law. Specifically, opponents have
vociferously argued that they violate section 505 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8
U.S.C. section 1623, which imposes certain conditions on state-funded
higher education benefits for undocumented immigrants.
Section 505 provides, in pertinent part:
Notwithstanding any other provision of law, an alien
who is not lawfully present in the United States shall not be
eligible on the basis of residence within a State (or a
political subdivision) 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.
[Emphasis added.]
Opponents of laws such as AB 540 have argued that Section 505
effectively prohibits a state from providing in-state tuition or other
higher education benefits to any undocumented immigrant because it
requires any state that does so to permit all U.S. citizen
nonresidents to attend their colleges at the in-state rate. They claim
that AB 540 and similar provisions in other states violate federal law
because the states continue to charge most nonresidents a higher rate
than residents, even though some undocumented immigrants qualify for the
in-state rate.
Supporters have responded that Section 505 is more limited, that
states may provide higher education benefits to undocumented immigrants
so long as the benefits are not provided on the basis of residency —
that is, so long as they provide the same
benefit under the same circumstances to persons who are not state
residents. The 10 states that have laws
similar to AB 540 all comply with this
requirement because they permit U.S. citizens to qualify for the
in-state rate, even if they are no longer state residents, if they meet
the requirements of previous high school attendance and graduation in
the state. In fact, a significant number of those who have benefited
from AB 540 are U.S. citizens who are not residents of California. On
Oct. 6, the
court in Martinez agreed with the state that AB 540 “does not
conflict with [section 505] because [AB 540] does not confer a benefit
based on residency within California.”
Supporters should now have the upper hand in future state legislative
battles on this issue, given that the only two cases that have been
brought by anti-immigrant plaintiffs — this one and
one filed in federal
court challenging Kansas’s law — have both
been summarily rejected by the courts, and given that the only court
that has squarely addressed the question of whether the state provisions
violate federal law has found that they do not.[2]
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