California’s In-State Tuition Policy for Illegal Aliens Violates Federal Law, Rules State Appeals Co

September 16, 2008

Precedent Setting Ruling May Be Used to Challenge

Similar Policies in Other States, Says Immigration Reform Law InstituteA three judge panel of the California Court of Appeals unanimously ruled Monday that a California law intended to permit illegal aliens to attend public colleges and universities violates federal law. Ruling in the case of Martinez v. Regents of the University of California, brought by the Immigration Reform Law Institute (IRLI) on behalf of nonresident citizens who were denied in-state tuition benefits, the Appeals Court agreed that California policy violates expressed provisions of both the Immigration Act and the Welfare Reform Act of 1996.

The 1996 Immigration Act states 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 their ruling, the judges concluded that a California law that recognizes illegal aliens as residents for the purpose of attending public colleges and universities at taxpayer subsidized tuition rates, “does, and was intended to, benefit illegal aliens” – a benefit that the state fails to provide to U.S. citizens from other states.

The California Appeals Court ruling is the first to decide a challenge to in-state tuition policies on the merits. A challenge in federal court to a similar policy in Kansas, also brought by IRLI, was dismissed when the judge denied standing to the plaintiffs. That ruling is currently under appeal.

“We believe that Monday’s ruling by the California Court of Appeals is unambiguous,” stated Michael Hethmon, general counsel for IRLI. “Congress was very explicit that unless states are prepared to offer in-state tuition benefits to every citizen of the United States, regardless of where they live, they are prohibited from granting in-state tuition to illegal aliens.”

Ten states currently offer illegal aliens in-state tuition benefits, while denying those benefits to nonresident U.S. citizens. The legal precedent of the California ruling could be used to challenge and overturn similar policies in the other nine states, and to discourage other state legislatures from adopting similar policies, predicted IRLI.“In expressly limiting the ability of states to grant in-state tuition benefits to illegal aliens, Congress had two objectives in mind,” said Kris Kobach, of counsel to IRLI. “Congress recognized that providing such a benefit could serve as an incentive for people to violate federal immigration laws. They also recognized the inherent unfairness of state governments offering benefits to people who are in the country illegally, while denying those same benefits to American citizens who wish to pursue the best educational opportunities available.”

“Law-abiding citizens and taxpayers were the real winners in this case. This decision strikes a blow of the rule or law, commonsense, and protection of public resources, and the legal precedence it sets will be felt all across the nation,” Hethmon concluded.