- The Washington Times - Monday, November 15, 2010

The California Supreme Court ruled unanimously Monday that illegal immigrants attending state universities can continue to pay the cheaper, in-state tuition rates instead of the pricier rates charged to U.S. legal residents and citizens who live outside the state.

Justice Ming W. Chin said in the 28-page ruling that the 2002 state statute that grants in-state tuition rates to any student who attends a California high school for at least three years and graduates is not pre-empted by the 1996 federal law making illegal immigrants ineligible for the lower tuition.

The key, he said, is the wording of the federal law, which says in Section 1623 that illegal immigrants “shall not be eligible on the basis of residence within a state for postsecondary educational benefits.”

“The fatal flaw in plaintiffs’ argument concerning section 1623 is their contention that [the state] exemption from paying out-of-state tuition is based on residence. It is not,” Justice Chin said in the opinion. “It is based on other criteria.”

He said the wording of the federal statute, which says that illegal immigrants shall not be eligible for lower tuition “on the basis on residence within a state,” provides states with wiggle room.

“If Congress had intended to prohibit states entirely from making unlawful immigrants ineligible for in-state tuition, it could have easily done so,” said Mr. Chin. “It could simply have provided, for example, that ‘an alien who is not lawfully present in the United States shall not be eligible.’ But it did not do so. … The reference to the benefit being on the basis of residence must have some meaning. It can only qualify, and thus limit, the prohibition’s reach.”

Michael Hethmon, general counsel for the Immigration Reform Law Institute, filed the lawsuit. He said his organization likely would appeal the decision to the U.S. Supreme Court.

“We’re obviously very disappointed because it was so clearly in our view a results-driven decision,” Mr. Hethmon said. “They concede that this is what the California Legislature intended to do, and then conclude Congress was stupid because they wrote the law so you could find loopholes. They dismiss any argument about legislative intent.”

California is one of 10 states that allow illegal immigrants to take advantage of in-state tuition waivers. The lawsuit, Martinez v. the Regents of the University of California, was filed on behalf of U.S. citizens who attend California public universities but reside outside the state and therefore must pay higher tuition.

The California law, known as Assembly Bill 540, became a campaign issue during the governor’s race. Republican primary candidates Meg Whitman and Steve Poizner voiced opposition to lower tuition for illegal immigrants.

Attorney General Jerry Brown, who won the gubernatorial race and whose office defended the legislation before the court, released a statement Monday in support of the ruling. “The Martinez decision upholds California law, which was intended to encourage California high school graduates to attend public colleges and universities in the state,” he said.

Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Education Fund, also applauded the high court’s decision.

“The court’s decision means that California’s institutions of higher education will continue to be strengthened by the inclusion of some of our state’s brightest and most successful students, who simply lack legal status due to the nation’s failure to enact the widely supported DREAM Act,” he said.

Congressional Democrats are pushing to bring the DREAM Act for a vote before the Republican House majority is seated in January.

The act would open a pathway to citizenship for illegal immigrants who attend college or enlist in the armed forces.

In California, an estimated 25,000 illegal immigrants take advantage of lower in-state tuition to attend school in the University of California, California State University and California Community Colleges systems. That’s less than 1 percent of the total student body for those schools, according to data compiled by the Sacramento Bee. So-called “AB 540” students at California universities received $26 million in value from their tuition waivers in 2007-08, the Bee reported.

If the Martinez lawsuit succeeds, it could cost the state as much as $3 billion in reimbursements to U.S. students who were for lower tuition, Mr. Hethmon said.

Critics argue that benefits such as lower tuition provide yet more incentive for immigrants to enter the country illegally.

The California Supreme Court ruling “reflects the difference in attitudes on the bench and the attitudes of the public, which is one of the more disturbing things we see in the illegal-immigration debate,” said Mr. Hethmon.

His organization has also filed a legal challenge to the Nebraska in-state tuition law.

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