Mike Kueber's Blog

September 30, 2011

In-state tuition for illegal immigrants

Filed under: Issues,Politics — Mike Kueber @ 2:25 am
Tags: ,

A few days ago, I blogged about a caller to Mark Levin’s talk show who said there was a federal law that prohibited states from granting in-state tuition to illegal immigrants, regardless of where they lived.  By doing some research, I found the following federal law (8 U.S.C. § 1623):

  • 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.”

Although the language in this statute seems exceptionally clear, the caller to Levin’s show said that a California state court had decided to allow in-state tuition for illegal aliens.  He suggested, however, that the courts in some other state might interpret the statute differently.

Because it was hard to imagine how a court could read the federal law as anything but a ban on in-state tuition, I went looking for the California decision and found it earlier today (Martinez v. Regents, 11/15/2010).  Actually, I found an analysis of the decision conducted by the Connecticut OLR.  The analysis was ostensibly done for the help of legislators in Connecticut who were considering associated legislation.

According to the OLR:

  • Holding.  The California Supreme Court held that California’s law did not award in-state tuition on the basis of residence and thus did not violate 8 U.S.C. § 1623.
  • Analysis.  The bulk of the court’s analysis focused on the California law’s relationship to 8 U.S.C. § 1623. The court stated that if Congress had wanted to ban illegal immigrants from receiving in-state tuition, it could have easily done so. Instead, noted the court, while the federal law prohibits in-state tuition from being awarded to illegal immigrants on the basis of residence, it is not a complete ban; it allows states to award in-state tuition based on other factors.  The court found that the state law awarded in-state tuition on factors besides residence, such as attending a California high school for three years and earning a diploma or its equivalent. It overruled the Court of Appeal’s holding that the attendance and graduation requirements were surrogates for residence.

Although the decision by the California Supreme Court was unanimous, I would be surprised if any nonpartisan jurists would agree.  I don’t know how the federal statute could be any clearer that it intended to ban illegal immigrants from receiving in-state tuition.  The lower court had correctly characterized the language in the CA statute as a patent attempt to evade the intent of the federal law.

Not surprisingly, the Texas law is patterned after the California law, or vica versa.  But Texas judges are less partisan that those in California and a different result could be expected if a case were brought here.

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