This ruling revives a class-action lawsuit brought by out-of-state-residents attending state colleges and universities in California. This ruling can be appealed to the California Supreme Court. More on the lawsuit here.
[T]he most significant issue [in this case] is whether California’s authorization of in-state tuition to illegal aliens violates a federal law, title 8 of the United States Code (U.S.C.) section 1623, which provides as pertinent:
“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 respondents argue the federal statute is not violated for two reasons:
1. Respondents say in-state tuition is not a “benefit” within the meaning of the federal law. For reasons we shall explain, we conclude in-state tuition, which is some $17,000 per year cheaper than out-of-state tuition at UC, is a “benefit” conferred on illegal aliens within the meaning of the federal law.
2. Respondents argue in-state tuition is not granted “on the basis of residence within a state” as required by federal law. Respondents point to the fact that in-state tuition for illegal aliens is based on a student’s having attended a California high school for three or more years and on the student’s having graduated from a California high school or having attained “the equivalent thereof.” As we shall explain, the three-year attendance requirement at a California high school is a surrogate residence requirement. The vast majority of students who attend a California high school for three years are residents of the state of California. Section 68130.5 thwarts the will of Congress manifest in title 8 U.S.C. section 1623.
Tuesday, September 16, 2008
California's 3rd District Court of Appeal has ruled that the California law giving in-state tuition to "illegal aliens" conflicts with federal law. Eugene Volokh excerpts the key section of the ruling: