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Kansas In-State Tuition Law

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Immigrants' Rights Update, Vol. 19, Issue 5, October 5, 2005

District Court Dismisses Challenge to Kansas In-State Tuition Law

By Linton Joaquin

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).