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By
JOSH BERNSTEIN
Director of Federal Policy
On Monday,
Sept.15, a California Court of Appeal panel overturned the superior
court's decision dismissing a challenge to AB 540, California's in-state
tuition law. Martinez v. Regents of the University of
California, No. C054124 (CA3 Sept. 15, 2008). The court of
appeal's ruling, if allowed to stand, would return the case to the
superior court for trial. The court did not enjoin or block AB
540. The law remains in effect. Similar laws in
others states were not affected by the ruling. The decision will
likely be appealed, and any final decision is likely to come from the
California Supreme Court.
AB 540 provides
that students who have attended at least three years of high school in
California, graduated from a California school, and meet certain other
conditions may attend state colleges and universities at the same rate
that is charged to state residents. Some students who qualify for
AB 540 are undocumented immigrants who live in California. Others
are U.S. citizens who attended school in California in the past but are
now unable to establish state residence, such as those who live in a
neighboring state or those who recently returned to California after
living elsewhere. In fact, about 70 percent of AB 540 students
attending the University of California are U.S. citizens who do not meet
the state residency requirements for in-state tuition purposes.
Despite these
facts, the Martinez court found that AB 540 confers a benefit
"based on residence" and therefore conflicts with a federal law that
precludes such a benefit for undocumented immigrants unless the same
benefit is available under the same conditions to U.S. citizens who are
not residents of the state. The opinion is internally
inconsistent, and it conflicts with other court decisions that have
addressed the in-state tuition issue.
It would be
extremely unfortunate if this intermediate court decision were upheld.
The affected students are talented high achievers who grew up in
California and persevered against the odds to graduate from high school
and meet the qualifications for higher education. They include
valedictorians, class presidents, and student prizewinners, among
others. California can ill afford to deny these students the
opportunity to complete their education. The elected
representatives and governor of California, as well as legislators in
nine other states where the majority of undocumented immigrants live,
have determined that it is a wise policy to charge these students an
affordable tuition.
Monday's decision
is only one step in the process of resolving the legality of AB 540.
The decision is based on a flawed legal analysis, and we are hopeful
that it will be reversed.
The Martinez
case adds urgency to efforts to pass the
federal DREAM Act and thereby address the status of undocumented
immigrant students who have grown up in this country. The federal
DREAM Act would provide immigration relief to those who entered the U.S.
more than five years ago if and when they graduate from high school.
It would allow them to become permanent residents and eventually
citizens if they go to college or serve in the military.
For more
information, contact Josh Bernstein.
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