Nation Keeping Eye On California Illegal Student Case

Nation keeping eye on California illegal-student case

By Matt Krupnick
The Contra Costa Times (Walnut Creek, CA), January 18, 2009

Several states are keeping an eye on a California court case that could be a bellwether for colleges that discount tuition for undocumented immigrants.

The California Supreme Court has agreed to consider a lawsuit over a state law that allows universities and colleges to charge the same tuition to undocumented students that state residents pay. If the high court overturns the law, it could lead to similar challenges in nine other states that discount prices for noncitizens; several of the states have submitted briefs.

The court is expected to hear the case late this year or in early 2010.

Attorneys for the plaintiffs say the policy has discriminated against about 100,000 U.S. citizens who have paid out-of-state prices since it took effect in 2002. They argue that the policy violates federal laws; an appeals court agreed last year and overturned a lower-court ruling that upheld the state law.

'Some states decided to flaunt the will of the federal government,' said Michael Brady, an attorney for plaintiff Robert Martinez. 'They are going against Congress.'

Attorneys for the defendants the California State University, University of California and community college systems say their tuition policies do not violate federal laws.

Federal lawmakers made it clear that states could help undocumented students as long as state legislatures adopted laws specifically allowing that help, said Christopher Patti, an

The other federal law at issue is thornier for the colleges, however. That statute forbids schools from providing educational benefits to illegal immigrants based on residency status.

University lawyers say that California has avoided issue by permitting students to pay in-state tuition if they attend California high schools for at least three years. Most UC students who take advantage of the benefit are not illegal immigrants, unlike at the community colleges, whereas many as 90 percent of students granted the benefit are undocumented.

The Cal State system does not collect data on those students.

The appeals court said the colleges had created a 'surrogate residence requirement' through the high school provision, a conclusion that even some supporters of the law have agreed with.

Even if the Supreme Court upholds the appeals court ruling, laws in other states are so sufficiently different that they probably would not be easily challenged using California as a precedent, said Michael Olivas, a University of Houston law professor and director of the Institute of Higher Education Law and Governance. He helped write the Texas law and has worked with several other states on their policies.

The appeals court should have thrown out the California lawsuit, Olivas said.

The law causes no harm, he said. 'The fact that one person gets residency status does not harm those who don't.

'Congress has no role in determining what states may do with their tuition.'

Martinez has argued that out-of-state students should not be forced to pay $20,000 more than undocumented students in California. College attorneys answered that immigrant families need the financial help in order to become productive Americans.

Thousands of Californians will be unable to attend college if the law is overturned, said Orson Aguilar, executive director of the Berkeley-based Greenlining Institute, which studies immigration and education issues.

'I just met a student who didn't know he was undocumented,' Aguilar said, adding that the man had lived in the United States since he was 1. 'I think California is going to miss out if we don't do this.

'In the long term, it's better for the country and for California.'