California’s In-State Tuition Policy for Illegal Aliens Is Unconstitutional, Rules State Appeals Court

Market Watch, September 16, 2008

A 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 at in-state tuition rates is unconstitutional because it conflicts with federal law, and violates both the equal protection clause and privileges and immunity clause of the constitution. Ruling in the case of Martinez et al. v. Regents of the University of California, brought by the Immigration Reform Law Institute (IRLI) on behalf of some 80,000 nonresident American students 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 court also granted injunctive relief to nonresident American students, meaning that they must be permitted to pay in-state tuition. Students who have already paid out-of-state tuition rates must be reimbursed.

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.

“We believe that Monday’s ruling by the California Court of Appeals is unambiguous and precedent setting,” stated Michael Hethmon, general counsel for IRLI.{snip}

Monday’s ruling will also affect many other state and local benefits currently being offered to illegal aliens. {snip}

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[Editor’s Note: The full court decision can be read here.]

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