Big Win for Undocumented Students

The California Supreme Court unanimously upheld a state statute affording some undocumented students in-state tuition status, overturning an earlier decision by an appellate court Monday.

California is one of only 10 states in which undocumented students are eligible to pay in-state tuition. Students in California are exempt from paying nonresident tuition rates if they both graduated from and attended an in-state high school for three or more years. Further, if students meeting this definition are undocumented, they must file an affidavit stating their intent to attain legal status if they are eventually able to do so. There are an estimated 25,000 undocumented students in California receiving in-state tuition. Most of them are enrolled at community colleges. Since these students are ineligible for most federal and state aid, and they typically are not wealthy, many educators in the state feared that the earlier appellate court ruling would result in their being effectively kicked out of college.

The plaintiffs in Martinez v. Regents of the University of California, students from other states who are enrolled at California public colleges and pay nonresident tuition rates, argued that the high school attendance requirement discriminated against them because it denies them a “benefit” provided to undocumented students. The state statute, they maintained, conflicted with federal law, which states: “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."

The defendants, officials from all three of California’s public university and college systems, argued that the state statue did not conflict with federal law because in-state tuition is not a “benefit,” as defined by federal law, and the extension of this tuition rate was not done “on the basis of residence within a state” but on attendance at and graduation from a California high school.

In a 25-page opinion penned by Justice Ming W. Chin, the California Supreme Court sided with the higher education systems.

“Because the exemption is given to all who have attended high school in California for at least three years (and meet the other requirements), and not all who have done so qualify as California residents for purposes of in-state tuition, and further because not all unlawful aliens who would qualify as residents but for their unlawful status are eligible for the exemption, we conclude the exemption is not based on residence in California. Rather, it is based on other criteria,” Chin wrote.

Michael A. Olivas, a law professor at the University of Houston and an expert of higher education and immigration law, applauded the decision, calling it “a blow to conservative lawyers” who have brought similar suits, which are not yet resolved, in Nebraska and Texas state courts based on “similar theories.”

“This is a great day,” Olivas said. “I knew the stakes were high. Hopefully this will take the wind out of the restrictionists’ sails. Now they’ve lost at the state and federal level. This decision restores some sanity.”

Tanya Broder, senior staff attorney at the National Immigration Law Center who co-wrote an amicus brief in support of the public college systems, said her organization is hopeful that the decision in this case will have some influence on Congress, which could reconsider the DREAM Act during the upcoming lame-duck session.

Officials from California’s university and college systems were also happy with the outcome.

"We are very pleased with the California Supreme Court's decision," said Charles Robinson, UC's general counsel and vice president for legal affairs, in a statement. "The university supported AB 540 because we believe that students who attended and graduated from high school in California but are not legal residents should have an opportunity to get a higher education. We are gratified that the California Supreme Court has agreed that this state law does not conflict with federal law."

Not everyone, however, is so gratified.

Richard A. Samp, chief counsel of the Washington Legal Foundation, which filed an amicus brief in support of the plaintiffs on behalf of U.S. Reps. Lamar Smith and Steve King, questioned the court’s opinion.

“This ruling almost suggests that, if you’ve successfully evaded a law, then you’ve evaded it,” Samp said. “It’s illogical to think that Congress passed this statute to make it easy for a state to evade enforcement.… The court came into this case saying, ‘Let’s find a way to uphold the California statute’ from the start.”

The plaintiffs in the case, for their part, vow to fight on.

Kris W. Kobach, a law professor at the University of Missouri at Kansas City and recently elected Kansas secretary of state who is a lead lawyer for the plaintiffs, said he would seek to have the case reviewed in the United States Supreme Court. Calling the California high court’s opinion “weak,” he added that the case stands a good chance of being overturned.

“The California Supreme Court bent over backward to come to the conclusion it did,” Kobach said. “And in doing so, it misinterprets a federal statute so that it means something it didn’t intend to mean. That’s the flaw in the opinion. It’s also superficial and brief.… It glosses over issues that are necessary to decide this case.”