MARTINEZ V. REGENTS OF THE UNIVERSITY OF CALIFORNIA
Court Issues Ruling in Martinez v. Regents of the University of California, California’s AB 540 Lawsuit
SAN FRANCISCO, Calif. — This morning, the California Supreme Court issued its decision in Martinez v. Regents of the University of California. The ruling rejected a challenge to AB 540, a California law that allows students who have attended California high schools for three years and received their diploma or GED to pay in-state tuition rates at public colleges and universities in California. Analysis of AB 540 has found that 70 percent of the students covered by this law in the UC system are U.S. citizens or documented immigrants.
“As Californians, we know that it is in our interest to ensure that all of our youth, regardless of status, who attend and graduate from California high schools have access to affordable higher education,” said Tanya Broder, an attorney for the National Immigration Law Center, which filed an amicus brief in the case. “Recognizing the fundamental importance of post-secondary education and the valuable resource to the state that these students represent, the California Supreme Court today properly rejected an attempt to deny this opportunity to thousands of current and future talented students. This decision should remind us that Californians are better served by rewarding, not punishing, our youth who work hard and succeed academically.”
Added Adey Fisseha, a NILC policy attorney, “Today’s decision also highlights a gap in federal immigration law: For thousands of undocumented young people who have grown up in the United States, there is no pathway to legal status to allow them to contribute fully to our society. The DREAM Act, bipartisan legislation under consideration in Washington, would provide such a path to these bright young students. Legislators on both sides of the aisle support a vote on the DREAM Act. Democratic and Republican leadership should heed those calls and make this common-sense legislation a top priority this year.”
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Martinez v. Regents of the University of California (and AB 540)
California Court Ruling on In-State Tuition Is Not the Last Word
SEPTEMBER 17, 2008
By JOSH BERNSTEIN
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.
Court Upholds California In-State Tuition Law (AB 540)
OCTOBER 10, 2006
By JOSH BERNSTEIN
The state of California won a near-complete victory on Oct. 6 in a lawsuit 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.
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.
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.
 NILC joined with the Lawyers’ Committee for Civil Rights, the ACLU Immigrants’ Rights Project, MALDEF, and Munger, Tolles & Olson LLP to represent immigrant students seeking to intervene in the litigation to ensure vigorous defense of the statute. In ruling to dismiss the case, the court concluded that intervention was not needed.
 The Kansas case, Day v. Sebelius, 376 F. Supp. 2d 1022 (D.Kan. 2005), was filed in federal district court by the same attorney who filed in California. As in California, the plaintiffs were U.S. citizens who were not residents of the state. Although the federal district court in the Kansas case denied all of the claims advanced by FAIR’s attorney, it did so without reaching the merits of his contention that the statute violated federal law. As a result, Kobach and others have continued to maintain that the states are in violation of federal law.
The federal district court denied several of the plaintiffs’ claims because they could not show that they were “injured-in-fact” by the Kansas law. Under Article III of the U.S Constitution, individuals do not have standing to sue in federal court unless they can show that they have been concretely and actually or imminently harmed by the defendant’s actions. The court denied the rest of the plaintiffs’ claims because the federal law in question does not provide nonresidents of the state with a “private right of action” — that is, the federal law in question does not grant them any individual rights that they can vindicate in court. Because the plaintiffs were not concretely injured and did not have a right to sue, the federal court in the Kansas cases did not need to address whether there was a conflict with federal law. FAIR has appealed the Kansas decision, but in our view they are unlikely to prevail.