California Supreme Court Backs Illegal-Alien Tuition Break

By Jon Feere, November 15, 2010

The California Supreme Court has reversed a lower court holding and sided with California Regents and illegal aliens on the issue of in-state tuition breaks. Under the latest ruling, California colleges (California State University, the University of California, and California Community Colleges) have been given the green light to offer tuition breaks to illegal aliens and deny the same benefit to U.S. citizens from other states. The case is available at the California courts website.

As explained in a recent Center for Immigration Studies Memorandum, the University of California may already be passing up U.S. citizens for legal foreign students as a result of an extra $15,000-a-year payment from the federal government every time it admits a high-tech graduate student from overseas. When combined with today’s ruling it seems that U.S. citizens are at a greater disadvantage than ever before when it comes to securing a seat at a California college.

The federal law that some believe California is violating reads as follows:

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 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. [8 U.S.C. § 1623]

The plaintiffs – headed by the Immigration Reform Law Institution (IRLI), whose complaint is online – argued that California is violating this federal law by offering in-state tuition breaks to illegal aliens while denying the same benefits to countless U.S. citizens who have attended or are attending a California university campus.

The California statute at issue (Ed. Code, § 68130.5) allows illegal aliens to obtain a tuition break (i.e. an exemption from nonresident tuition, which is much higher than resident tuition) if the illegal alien has (1) attended high school in California for three or more years; (2) graduated from a California high school or attained the equivalent thereof; (3) registered as an entering student or is currently enrolled at an institution of higher education in California; and (4) filed an affidavit with the campus stating that the illegal alien "has filed an application to legalize his or her immigration status, or will file an application as soon as he or she is eligible to do so."

The California statute provides no guidance on what the outcome should be if the alien never becomes eligible for legal status, or if he is, in fact, ineligible.

The plaintiffs (IRLI and the citizen students) argue that the requirements of the California statute amount to a residency test and that it violates federal law by making illegal aliens "eligible on the basis of residence within a State." (§ 1623) The plaintiffs also argue that the statute violates a number of other legal provisions including the Equal Protection Clause of the U.S. Constitution, the Privileges and Immunities Clause of the 14th Amendment of the U.S. Constitution, and that it is preempted. A detailed explanation of these arguments is available in the complaint.

However, the court held that the tuition exemption offered by California is "not based on residence in California." In other words, the court held that it is possible to meet the requirements found in the California statute, and still not be a "resident." The court explained, "Attending high school in California for at least three years and meeting the other requirements are not the functional equivalent of residing in California." In support of this ruling, the court gave examples from the brief of the defendants (those in favor of tuition breaks for illegal aliens), for example, students from adjoining states who cross the California border daily to attend a California high school and/or children of parents who live outside California but who attend boarding schools in California.

The lower court had earlier found the opposite, explaining that the California statute "creates a de facto residence requirement" and that California has "effectively established a surrogate criterion for residence."

But the California Supreme Court disagreed and ultimately put the focus on Congress:

If Congress had intended to prohibit states entirely from making unlawful aliens eligible for in-state tuition, it could easily have done so. It could simply have provided, for example, that "an alien who is not lawfully present in the United States shall not be eligible" for a postsecondary education benefit. But it did not do so; instead, it provided 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 a postsecondary education benefit.

While the court did its best to avoid policymaking, the outcome necessarily infers that Congress's intent in authoring the underlying legislation was to make a U.S. citizen from across the California border – say, a resident of Reno – more alien to California and less deserving of a tuition break than an illegal alien from the other side of the globe. Such a proposition seems silly on its face, and it does seem that the court is subtly encouraging Congress to provide some clarification. Regardless, this holding illustrates the importance of Congress drafting straightforward legislation that does not allow for multiple interpretations, especially on a topic as political as immigration. As the U.S. Supreme Court has noted many times over the past century, the courts often do not have the capacity to adequately address the immigration issue. Since California is not the only state with an illegal alien tuition-break law, it is likely that this issue will find its way to the U.S. Supreme Court if clarification from Congress is not provided first.

Interestingly, even California's ex-Gov. Gray Davis, a man recalled from office at least in part because of his decision to grant drivers licenses to illegal aliens, at one time vetoed an early version of this tuition-break statute because he believed it violated the federal law described above and because he believed it would require the same tuition break be offered to all out-of-state residents. This would result in a significant loss of state funds, of course. But even with the way the policy is currently administered, there is a cost. In 2005, the Federation for American Immigration Reform estimated that by offering tuition breaks to illegal aliens, California taxpayers lose out on up to $289 million in potential revenue each year.