Supporters of comprehensive immigration reform scored a major victory last week when the conservative-leaning California Supreme Court ruled unanimously that illegal aliens with three years of high school attendance could qualify for in-state tuition rates to attend California public colleges and universities.
The ruling, issued on November 15, dealt a huge blow to immigration restrictionists who’ve successfully passed dozens of state laws in Arizona and elsewhere designed to punish illegal aliens and restrict their access to jobs, educational benefits, and health care.
At least nine other states have laws similar laws to California’s that would allow illegal aliens to get in-state tuition –and to date, nearly all have survived. A federal district judge upheld a Kansas in-state tuition law in 2007. Cases in New York and Texas are still pending.
Kris Kobach, the high-profile conservative lawyer who helped argue the Kansas and California cases, denounced the California court’s ruling during an interview with Fox News immediately following the decision.. He said the ruling was inconsistent with a 15-year old federal law that appears to ban states from granting tuition aid to illegal aliens if the state’s legal residents aren’t granted the same aid, solely on residency grounds.
Kobach’s organization, the Immigration Reform Law Institute, an offshoot of the Federation of Americans for Immigration Reform, or FAIR, a leading restrictionist group, plans to appeal the California ruling to the US Supreme Court on behalf of a dozen US citizen plaintiffs who claim to have been harmed by the California law, known as AB 540.
In their lawsuit, the plaintiffs claimed California wrongfully denied them access to tuition benefits, while, in effect, giving preferential treatment to illegal immigrants in violation of their equal protection rights under the14th Amendment. They also claim that because of the 1996 federal law, AB 540 should be “pre-empted” under the US Constitition’s “supremacy clause” granting the federal government sole authority to make the nation’s immigration laws.
Somewhat paradoxically, perhaps, that’s the same argument that the Obama Justice Department used last summer to convince a federal court to block implementation of Arizona’s harsh immigration crackdown law known as SB 1070. The administration’s also using the “pre-emption” argument to appeal a separate lower court ruling that Arizona has the right to implement its own employer sanctions law. Eleven other states have since passed employer sanctions laws similar to Arizona’s.
How did supporters of in-state tuition for illegal aliens manage to prevail in the face of 1996 federal law? In part, by taking a page from the restrictionists’ playbook and carefully tailoring their law, first passed in 2001, to conform with the 1996 law, in effect, “pre-empting” the pre-emption argument.
The key provision of that law, known as the “Illegal Immigration Reform and Imigrant Responsibility Act,” says explicitly that states cannot use “residency” as a basis for granting tuition aid to illegal aliens while at the same time denying tuition aid to legal residents simply because they may currently live out of state. The idea was to prevent illegal aliens from claiming any federal or state benefit that wasn’t first made available to legal residents, especially US citizens.
So what did AB 540 framers do? They wrote the law to require that all recipients of state tuition aid have three years of high school attendance – regardless of where they live. That means prior high school attendance, not residency per se, is the key criterion for “in-state” aid, which renders the restriction spelled out in the 1996 law for all intents and purposes, moot.
Ironically, that also means it’s now possible to deny legal residents tuition aid if they failed to attend three years of state high school – even if they currently live in California – while illegal aliens who live out of state but did attend a California high school for three years – and who agree to sign an affidavit pledging to apply for legal status – can receive these same benefits.
In fact, with Latino high school drop-out rates in California and elsewhere still woefully high, the numbers of qualifying illegal aliens is still relatively low – about 25,000-30,000, sources say. Still, that’s roughly 20% of the total number of students who received in-state tuition assistance in California last year, which is considerably higher than the percentage of California residents who lack legal status.
According to state statistics, students with in-state support typically pay less than half as much as out-of-state students to attend one of California’s prestigious public universities. The difference, on average, is $12,000 per year – no small sum for anyone, but especially advantageous for illegal aliens at the bottom of the income ladder, with additional language and cultural barriers to overcome.
Naturally, while restrictionists like Koback are howling, the ACLU and other defenders of AB 540 are jubilant at the Court’s recent decision. And so, in fact, are leading California educators. After the decision, Mark Yudof, the president of the University of California (UC), issued a statement saying: “Through their hard work and perseverance, [illegal alien] students have earned the opportunity to attend UC. Their accomplishments should not be disregarded or their futures jeopardized.”
Immigration advocates hope the California decision will also fuel efforts to pass the Dream Act, a bill in Congress that would grant legal status to alien minors who agree to attend college or join the US military. That’s because Dream includes a provision granting in-state – and federal – tuition benefits to those who take the college attendance option. As many as 2.1 million alien “youth” – some of them as old as 35 today – could get on a fast-track for a green card if the Dream Act passes.
Gov. Arnold Schwarzenegger has already vetoed a California version of the Dream Act that passed the state legislature by a wide margin last year. But Senate Democrats have just announced plans to force a vote on the federal Dream Act during the upcoming lame-duck session of Congress.
And if that effort fails, California legislators are likely to put the Dream Act to second vote – this time knowing that former state attorney general Jerry Brown, who endorsed the Dream Act during his recent campaign, has just been elected governor, and would eagerly sign the bill.
Despite recent conservative advances on a number of immigration fronts, nationally, and at the state level, on the issue of in-state tuition credits at least, immigration advocates appear to be gaining the upper hand.
And at a time when most Democrats – including the President – appear unwilling to offer much more than token verbal support to immigration reform, advocates need every political and symbolic victory they can get right now. On the heels of the disastrous midterms, especially, this one was huge indeed.
STEWART J. LAWRENCE is a Washington, DC-based an immigration policy specialist. He can be reached at firstname.lastname@example.org