Posted on January 5, 2009

California Supreme Court to Take On State Law Granting In-State Tuition to Illegal Immigrants

Anna Gorman, Los Angeles Times, January 5, 2009

California’s highest court is poised to be the next battleground in the debate over benefits for illegal immigrants as the justices have agreed to hear arguments on the constitutionality of a state law allowing undocumented students to pay in-state tuition at public colleges and universities.

The decision could affect hundreds of illegal immigrant students who attend community colleges, Cal State and UC campuses and who say they would not be able to afford a higher education if required to pay out-of-state tuition, which can cost more than triple the amount that residents pay.

But the outcome could have a broader effect—at least nine other states, including Oklahoma, New York and Texas, have similar laws providing the reduced fees to illegal immigrants. Although a court decision would not be legally binding in other states, politicians around the country are looking at California as a litmus test for future legal challenges.


Martinez vs. Regents of the University of California began with a lawsuit filed in Yolo County in 2005 by out-of-state students and their parents. The lawsuit alleges that education officials are violating federal law by granting in-state tuition to illegal immigrants while not offering the same lower fees to students from outside California.

“U.S. citizens should have at least the same rights as undocumented immigrants,” said one of the plaintiffs, Aaron Dallek, an Illinois native who graduated from UC Berkeley in 2006.


For the 2008-09 school year, out-of-state undergraduates pay about $28,600 to attend a UC school, compared with about $8,000 for students who qualify for in-state tuition. Out-of-state undergraduate students at Cal State campuses pay on average $10,000 more than in-state students. At community colleges, California residents pay $26 per unit, while out-of-state students pay between $140 and $170.

Cora Orta, an illegal immigrant from Mexico who is a senior at UCLA, said she could not afford the school if she had to pay the higher tuition. As it is, the in-state fees are a stretch, she said. She is not eligible for loans, so she works part time, crams into a studio apartment with four other students and constantly applies for scholarships.


The California Supreme Court case revolves around a 2001 state law, known as AB 540, that permits the tuition breaks. Under the law, illegal immigrant students qualify for in-state rates if they attended a California high school for three years, graduated here and signed an affidavit saying they will apply for permanent residency as soon as they are eligible. The law has remained in effect during the legal challenge.


Brady [Michael Brady, who represents the out-of-state students and their parents in the case, said California,] said that in passing the strict immigration law in 1996, Congress sought to deter people from coming to the U.S. and staying here illegally.

“When public benefits are provided, it encourages people to stay here,” Brady said. “That is why we have all these laws.”


In the 2006-07 school year, 1,639 UC undergraduate and graduate students received in-state tuition under AB 540 provisions. Of those, about 70% were here legally, while the others were potentially undocumented, in the process of obtaining residency or their status could not be determined, according to university officials.