- The Washington Times - Thursday, March 27, 2008

RICHMOND (AP) — The American Civil Liberties Union is disputing the Virginia attorney general’s interpretation of the state law governing in-state tuition for children of illegal immigrants.

The ACLU of Virginia says it will offer legal representation to students it thinks have been improperly denied in-state tuition rates based on the legal status of their parents.

“The United States Supreme Court has repeatedly recognized that individuals may not be discriminated against on the basis of who their parents are,” Rebecca Glenberg, state ACLU legal director, said in a letter Tuesday.

She said disparate treatment of children of illegal immigrants and their peers would violate the Equal Protection Clause of the Constitution.

The dispute stems from the State Council of Higher Education for Virginia’s request for advice on whether students born and reared in Virginia were entitled to in-state tuition, though their parents are illegal immigrants.

Ronald C. Forehand, senior assistant attorney general, wrote March 6 that children ordinarily are classified as in-state only if their parents are legal Virginia residents. However, he said such students can still get in-state tuition by proving they have established legal residence in Virginia despite their parents’ status.

He said the presumption that students share their parents’ domicile is difficult, but not impossible, to overcome.

“The facts you present — a United States citizen who was born in and who has always lived in Virginia — is, however, one in which the student, by offering clear and convincing evidence, might well be able to overcome the presumption,” Mr. Forehand said.

Based on that analysis, a University of Virginia student whose situation prompted the council inquiry was allowed to pay in-state tuition.

“The attorney general’s memo leaves some wiggle room,” Kent Willis, executive director of the state’s ACLU, said yesterday. “If the universities in Virginia are inclined to follow the lead of UVa., this might not be a problem. On the other hand, if universities begin to reject students based on the attorney general’s memo, this more than likely would end up in court.”

The ACLU disputes the attorney general’s position that illegal immigrants cannot be considered “domiciled” in Virginia, saying the law’s definition of domicile does not mention immigration status.

“An undocumented immigrant, and, by extension, his children, should be considered a domiciliary of Virginia if he resides in Virginia and intends to remain there indefinitely,” Miss Glenberg wrote.

Kirsten Nelson, a spokeswoman for the council, said the council’s specialist on the issue sees the attorney general’s advice as allowing in-state tuition in more cases, not fewer.

“What they’re saying is there are certain cases where parents are domiciled outside Virginia, but if a student can prove he’s domiciled inside Virginia, he can get in-state tuition,” she said.

However, Miss Nelson said, decisions have to be made on a case-by-case basis.

“It’s complicated, and a lot goes into it,” she said.

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