Court Upholds California In-State Tuition Law (AB 540)
October 10, 2006
By Josh Bernstein
Director of Federal Policy
The state of California won a near-complete victory on Oct. 6 in a lawsuit challenging its provision of in-state tuition at state colleges and universities to undocumented immigrants who have attended at least three years and graduated high school (or obtained a GED) in the state. Martinez v. Regents, No. CV 05-2064 (Cal. Super. Ct. Oct. 6, 2006) (order).
The Martinez case was filed by Kris Kobach, an attorney for the Federation for American Immigration Reform (FAIR), on behalf of U.S. citizen residents of other states who alleged, among other claims, that the California provision discriminates against them and that it conflicts with federal law. The discrimination claims always bordered on frivolous, so the key finding of Friday’s decision is that the California provision is fully consistent with federal law.
California students and educators refer to the challenged law by its bill number, AB 540. When AB 540 was enacted in Oct. 2001, it was the second such provision to become law, after Texas’s HB 1403. Since then, eight other states have enacted similar laws; they are Utah, New York, Oklahoma, Washington, Kansas, Illinois, New Mexico, and Nebraska. A majority of the undocumented immigrants in the country live in these ten states. All of these states provide their in-state tuition rate to students, regardless of immigration status, who attend high school for a certain number of years in the state, graduate from high school or obtain a GED in the state, and who, if they are not yet permanent residents, sign an affidavit promising to apply for permanent residency whenever they become eligible to do so.
In recent years a number of other states have considered enacting similar provisions, in some cases coming very close to doing so. But supporters have often been thwarted by the claims of FAIR and others that such provisions violate federal law. Specifically, opponents have vociferously argued that they violate section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. section 1623, which imposes certain conditions on state-funded higher education benefits for undocumented immigrants.
Section 505 provides, in pertinent part:
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. [Emphasis added.]
Opponents of laws such as AB 540 have argued that Section 505 effectively prohibits a state from providing in-state tuition or other higher education benefits to any undocumented immigrant because it requires any state that does so to permit all U.S. citizen nonresidents to attend their colleges at the in-state rate. They claim that AB 540 and similar provisions in other states violate federal law because the states continue to charge most nonresidents a higher rate than residents, even though some undocumented immigrants qualify for the in-state rate.
Supporters have responded that Section 505 is more limited, that states may provide higher education benefits to undocumented immigrants so long as the benefits are not provided on the basis of residency — that is, so long as they provide the same benefit under the same circumstances to persons who are not state residents. The 10 states that have laws similar to AB 540 all comply with this requirement because they permit U.S. citizens to qualify for the in-state rate, even if they are no longer state residents, if they meet the requirements of previous high school attendance and graduation in the state. In fact, a significant number of those who have benefited from AB 540 are U.S. citizens who are not residents of California. On Oct. 6, the court in Martinez agreed with the state that AB 540 “does not conflict with [section 505] because [AB 540] does not confer a benefit based on residency within California.”
Supporters should now have the upper hand in future state legislative battles on this issue, given that the only two cases that have been brought by anti-immigrant plaintiffs — this one and one filed in federal court challenging Kansas’s law — have both been summarily rejected by the courts, and given that the only court that has squarely addressed the question of whether the state provisions violate federal law has found that they do not.
 NILC joined with the Lawyers’ Committee for Civil Rights, the ACLU Immigrants’ Rights Project, MALDEF, and Munger, Tolles & Olson LLP to represent immigrant students seeking to intervene in the litigation to ensure vigorous defense of the statute. In ruling to dismiss the case, the court concluded that intervention was not needed.
 The Kansas case, Day v. Sebelius, 376 F. Supp. 2d 1022 (D.Kan. 2005), was filed in federal district court by the same attorney who filed in California. As in California, the plaintiffs were U.S. citizens who were not residents of the state. Although the federal district court in the Kansas case denied all of the claims advanced by FAIR’s attorney, it did so without reaching the merits of his contention that the statute violated federal law. As a result, Kobach and others have continued to maintain that the states are in violation of federal law.
The federal district court denied several of the plaintiffs’ claims because they could not show that they were “injured-in-fact” by the Kansas law. Under Article III of the U.S Constitution, individuals do not have standing to sue in federal court unless they can show that they have been concretely and actually or imminently harmed by the defendant’s actions. The court denied the rest of the plaintiffs’ claims because the federal law in question does not provide nonresidents of the state with a “private right of action” — that is, the federal law in question does not grant them any individual rights that they can vindicate in court. Because the plaintiffs were not concretely injured and did not have a right to sue, the federal court in the Kansas cases did not need to address whether there was a conflict with federal law. FAIR has appealed the Kansas decision, but in our view they are unlikely to prevail.