College Fee Wars in California

The Chronicle of Higher Education reports that a state judge has upheld a California law that allows some immigrants who are living in the state illegally to pay lower in-state tuition rates at the state’s public colleges and universities. In a ruling last week, Judge Thomas E. Warriner, of the State Superior Court in Yolo County, rejected arguments made by out-of-state students at California’s public colleges in a lawsuit filed in December. The students’ complaint argued that California’s tuition law violates the equal-protection clause of the 14th Amendment to the U.S. Constitution, as well as a 1996 federal immigration law. Judge Warriner ruled that the state law violated neither. The students who brought the lawsuit are U.S. citizens who attend, or who have recently attended, campuses of the University of California, California State University, and California’s community colleges. They sued on behalf of an estimated 60,000 U.S. citizens who have paid out-of-state tuition rates at public colleges in California since 2002, when the state’s immigrant-tuition policy took effect. California’s tuition law allows illegal immigrants to pay in-state rates at the state’s public colleges if they have attended for at least three years, and graduated from, a California high school. They also must sign an affidavit pledging to apply for permanent residency as soon as they are eligible to do so. The plaintiffs asked the court to strike down the state law and order the governing boards of the state’s public-college systems to reimburse out-of-state students who are U.S. citizens for the extra tuition they paid above the in-state rates. In their arguments against the state policy, the plaintiffs pointed to a provision of a 1996 federal immigration law that says that immigrants who are not legally in the United States cannot be eligible, based on their residence in a state, for “any postsecondary benefit unless a citizen or national of the United States is eligible for such a benefit.” California officials and others who defend the tuition policy believe that it does not violate the federal law because it bases eligibility for in-state tuition rates on high-school attendance and graduation, not residence, in the state. “We are very pleased with the outcome,” Christopher M. Patti, who represented the University of California in the case, said in a written statement. “This ruling allows the university to continue to provide access to a top-notch education to hundreds of deserving students.” Kris W. Kobach, a lawyer representing the plaintiffs and a law professor at the University of Missouri at Kansas City, said he planned to appeal the judge’s decision. “The ruling will be of little consequence in the long run,” Mr. Kobach said. “This is the first bump in a relatively long road.” Mr. Kobach has helped to file a similar lawsuit in Kansas. Last year, a federal judge in Kansas dismissed that lawsuit without ruling on the merits of the case. The judge determined that the plaintiffs — many of whom were students or parents of students who pay out-of-state tuition rates at Kansas public institutions — lacked standing to sue. The judge said that they had failed to demonstrate that they had been harmed by the immigrant-tuition law. The plaintiffs have appealed that decision, and the case is pending before the U.S. Court of Appeals for the 10th Circuit.

For the National Immigration Law Center take on the case, click here.

Sounds like Professor Kobach, at least for now, is 0 for 2? 

KJ