Toolkit | Access to Postsecondary Education

Toolkit | Access to Postsecondary Education


TOOLKIT CONTENTSTuition Equity Laws Have Withstood Legal Challenges

Banning Students from Enrolling in Postsecondary Institutions


Federal law does not prohibit states from allowing undocumented students to pay in-state tuition rates. Such a prohibition would have been simple to write, but Congress declined to do so. Rather, section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) prohibits states from providing any higher education benefit based on residence to undocumented immigrants unless they provide the same benefit to U.S. citizens in the same circumstances, regardless of their residence. The states that provide in-state tuition to students who meet certain criteria regardless of immigration status have fully complied with this provision.


Martinez v. Regents of University of California, 50 Cal. 4th 1277 (Nov. 15, 2010).

A class of former and current nonresident U.S. citizens filed suit against the University of California, California State University, and community college systems. The plaintiffs claimed that California’s nonresident tuition exemption violated federal law because the exemption is based on residence in California. Federal law (8 U.S.C. § 1623) precludes undocumented immigrants from being eligible for any postsecondary education benefit on the basis of residence within a state unless a citizen or national of the U.S. is eligible for such a benefit without regard to whether the citizen or national is a resident. California law (Ed. Code, § 68130.5 (A.B. 540)) provides nonresident tuition exemptions to any student who, regardless of immigration status, satisfies certain criteria. These criteria include high school attendance in California for three years or more and graduation from a California high school or attainment of the equivalent. The California Supreme Court concluded that the California law did not violate federal law. It reasoned that because the exemption is given to all individuals who attended high school in California for at least three years and meet the other requirements, and because not all who have done so are California residents for purposes of in-state tuition, and because not all undocumented immigrants who would qualify as residents but for their status are eligible for the exemption, the exemption is not based on residence in California.

Additional information on this case may be found here.


Day v. Sebelius, 376 F. Supp. 2d. 1022 (D. Kan. 2005), affirmed Day v. Bond, 500 F.3d 1127 (10th. Cir. 2007), rehearing and rehearing en banc denied Day v. Bond, 511 F.3d 1030 (10th Cir. 2007), cert. denied 554 U.S. 918 (2008).

In 2005, U.S. citizens who were not residents of Kansas filed suit in federal court against the governor of Kansas, the Kansas Board of Regents, and the registrars of Kansas schools. Plaintiffs sought to prevent the implementation of K.S.A. 76-731a (HB 2145), a 2004 Kansas law that permits students to qualify for resident tuition if they attend high school in Kansas for three or more years, graduate from high school or receive a GED within Kansas, and meet other criteria, regardless of their immigration status. Plaintiffs claimed that the Kansas law violates 8 U.S.C. § 1623, which regulates undocumented immigrants’ eligibility for postsecondary education benefits based on residency. Plaintiffs also claimed that defendants discriminated against U.S. citizens who are not classified as residents of Kansas.

The federal court dismissed most of plaintiffs’ claims on the basis that they lacked standing to bring the suit. The court found that plaintiffs suffered no injury as a result of the Kansas law and that they would be required to pay out-of-state tuition regardless of whether the law was enjoined. The federal court also dismissed plaintiffs’ claim because Congress did not grant private citizens a right to enforce 8 U.S.C. § 1623. Finally, the federal court dismissed plaintiffs’ discrimination claim because they faced no barriers to admission to Kansas universities. The court explained that the exception for undocumented students was no different from other exceptions that Kansas law provided, such as for spouses and dependents of military service members. States can require out-of-state residents to pay more tuition. Plaintiffs could not fulfill Kansas’s lawful, nondiscriminatory requirements or qualifications for the exception. Therefore, they faced no discrimination.

Additional information on this case may be found here.



Hispanic Interest Coalition of Alabama, et al. v. Bentley, et al.

On June 2, 2011, Alabama’s governor signed HB 56, an omnibus anti-immigrant bill. Included in the law was a provision banning students who cannot show that they are either a lawful permanent resident or have a nonimmigrant status from enrolling in or attending Alabama’s public postsecondary education institutions. The provision bars not only undocumented students but also several categories of lawfully present students, such as refugees, asylees and individuals granted temporary protected status. A coalition of civil rights organizations, including NILC, filed a lawsuit challenging HB 56. On September 28, 2011, the federal district court granted a preliminary injunction blocking the postsecondary education provision, as well as certain other provisions of Alabama’s law, and the state appealed this ruling to the Eleventh Circuit Court of Appeals. On May 12, 2012, however, the governor signed HB 658, amending this provision to ban enrollment in postsecondary educational institutions only to students who are not lawfully present in the U.S. In light of this change, the Eleventh Circuit issued an order on August 12, 2012, vacating this injunction.

Additional resources, including briefs, memos, and federal court materials may be found here (click on the “Litigation” tab).

Federal Law Does Not Ban Enrollment of Undocumented Students

Letter to North Carolina Department of Justice stating “admission” to public postsecondary education institutions is not a public benefit under federal law (U.S. Immigration and Customs Enforcement, July 9, 2008).

Admission of undocumented immigrant students to public postsecondary educational institutions is not one of the benefits regulated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and is not a public benefit under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA).