Lawsuit Against California Public Colleges and Universities

As you no doubt have heard, a lawsuit has been filed by out-of-state residents seeking damages for allowing undocumented immigrants to pay resident fees to attend California colleges and universities. Here’s some of information. More to follow.

This article, “Out-of-State Students Sue Over California’s Immigrant-Tuition Law, Seeking Millions in Damages ,” is available online at this address: http://chronicle.com/temp/email.php?id=bmz1ydp0n2c3kpoglrm1qvec6q48s09u

Here is a media advisory realeased on Wednesday, December 14, 2005 by the plaintiffs: College Students File Unprecedented Class Action Suit Seeking Hundreds of Millions in Damages from California Public Colleges and Universities WHAT: Lawyers representing students from 19 states to announce filing of the largest class-action lawsuit ever initiated on behalf of 60,000 U.S. citizens who have paid out-of-state tuition at California public colleges and universities since 2002. The basis of the “Tuition Fairness for Americans” lawsuit claims California Lawmakers and members of the UC Board of Regents knowingly violated Federal Statute 8 United States Code [U.S.C.] § 1623, which prohibits states from granting resident status to illegal alien students living in that state and attending public colleges or universities, while denying the same benefit to out-of-state U.S. citizen students. WHO: Attorney Michael J. Brady – Ropers, Majeski, Kohn & Bentley; Attorney Richard M. Williams – Ropers, Majeski, Kohn & Bentley; Attorney Kris Kobach – Co-Counsel and Professor of Law, University of Missouri (Kansas City) School of Law; Student plaintiffs from 12 California universities and colleges. WHEN & Press conference scheduled at 2:00 PST, Wednesday, December 14, 2005. WHERE: North steps (facing L street) at the California State Capitol, 10th Street, Sacramento, California WHY: When Congress passed U.S.C. § 1623 as part of a comprehensive immigration act, it reasonably thought that no state would violate this law, and risk losing the ability to charge hundreds of millions in out-of-state tuition to non-resident students. In 2002 the State of California and its public colleges and universities defied the federal government by enacting Education Code § 68130.5, which expressly did what Congress prohibited: granting resident status to illegal aliens for tuition purposes without giving the same benefit to out-of-state students. The state and educational system of California have now willfully placed themselves in a position of significant financial liability by banking on the assumption that no one would challenge the unlawful California statute. This lawsuit seeks to reverse these discriminatory policies, which deprived U.S. citizen students of benefits expressly intended for them under federal law. Press Contact: Susan Forbes <mailto:susan@forbesnewsagency.com> (678)-770-1305.

FROM CNN

California Statute Allows In-State Tuition to Illegal Aliens, CNN, December 16, 2005, By Daryn Kagan, Casey Wian, Drew Griffin, Tony Harris

Is it fair for illegal immigrants to get a break on their tuition expenses while out-of-state students have to pay more? America’s so-called diploma mills are coming under scrutiny as federal authorities investigate how bogus college degrees can provide the needed cover for terrorists infiltrating the country.

DARYN KAGAN, CNN ANCHOR: It is a well-known fact that the cost of tuition at colleges and universities is generally higher for out- of-state students, but is it fair for illegal immigrants to get a break on their tuition expenses while out-of-state students have to pay more?

CNN’s Casey Wian takes a look at the tuition turmoil brewing in California.

CASEY WIAN, CNN CORRESPONDENT (voice over): Chaning Jang and Mark Hammes are seniors at the University of California, Davis. They’re from Hawaii. And like other out-of-state students, pay about $17,000 a year more than students from California. Incredibly, even illegal aliens get the cheaper in-state tuition rate.

CHANING JANG, U.C. DAVIS STUDENT: I don’t really think it’s fair that illegal immigrants who can’t work here legally, they don’t pay any taxes, they get to have a better chance to go to university than I do.

MARK HAMMES, U.C. DAVIS STUDENT: Where can the state’s money be better spent, given breaks to illegal immigrants who can’t even continue working in the state after they graduate, or to other U.S. citizens who could stay? I know I intend to stay in California.

WIAN: Activists filed a class-action lawsuit on behalf of 60,000 out-of-state U.S. students forced to pay higher tuition in California. They say the state has been violating a federal law since it began giving illegal aliens reduced tuition in 2002.

KRIS KOBACH, UNIVERSITY OF MISSOURI: It’s an incentive to stay illegally in California. And furthermore, we’ll give you a very, very valuable benefit worth more than $130,000 in the U.C. system to stay here legally. And so it’s encouraging illegal immigration.

WIAN: California is one of nine states that offer discounted tuition to illegal aliens. A lawsuit has also been filed in Kansas.

A spokesman for the University of California system says it believes in-state tuition for illegal aliens is consistent with federal law. The courts will decide who’s right. But many immigration reform advocates say the policy, legal or not, is wrong. IRA MEHLMAN, FED. FOR AMERICAN IMM. REFORM: We’re depriving people who have broken no laws benefits and then extending those very same benefits to the children of people who broke the law.

WIAN: When California lawmakers first tried to approve reduced tuition for illegal aliens, the law was vetoed by then-governor Gray Davis. It eventually passed without his signature.

(on camera): Meanwhile, students like Chaning and Mark are taking on massive debts and working several part-time jobs to make up a difference in benefits offered to illegal aliens and other California resident students.

Casey Wian, CNN, Sacramento, California.

FROM THE KANSAS CITY STAR: Tuition lawsuit has roots in Kansas, The Kansas City Star, December 16, 2005
By Jim Sullinger

A lawsuit filed in Kansas challenging in-state college tuition for undocumented immigrants has paved the way for a similar court effort filed Wednesday in California.

The two lawsuits even have a lawyer in common.

Kris Kobach, who filed the Kansas litigation, was asked to join the California team of lawyers suing that state’s public university system in an attempt to overturn the tuition law there. Kobach is a law professor at the University of Missouri-Kansas City. He ran unsuccessfully to represent Kansas’ 3rd Congressional District in 2004.

Kobach flew to Sacramento, Calif., for a news conference Wednesday announcing the lawsuit.

“The Kansas lawsuit paved the way for this lawsuit,” he said before the trip. “Many of the legal arguments are the same.”

Kobach argued in federal court that the Kansas law, which became effective last year, violated a 1996 federal law that prevents states from offering undocumented immigrants residency-based benefits that aren’t available to U.S. citizens.

His lawsuit also maintained that granting undocumented immigrants the lower in-state tuition violated the equal protection rights of U.S. citizens paying the higher out-of-state tuition.

The Kansas court action was backed financially by the Federation for American Immigration Reform on behalf of 24 students and their parents.

In July, U.S. District Judge Richard Rogers ruled that the out-of-state students did not have standing to file the suit and dismissed it. Kobach is appealing that decision.

Although the federation initiated the Kansas lawsuit, Kobach said that organization was not involved in the California challenge.

He also pointed to other differences.

The California case is a class-action lawsuit that could involve an estimated 60,000 students who paid out-of-state tuition from 2002 to the present. And it is being filed in a state court.

“Those students come from all 50 states,” Kobach said.

If the suit is successful, Kobach said, those students could receive a total of more than $500 million in damages.

The California law was enacted in 2001. Out-of-state tuition and fees there are $17,820 a year higher than in-state tuition and fees.

The lawsuit is being spearheaded by the law firm of Ropers Majeski Kohn & Bentley. The firm has 120 attorneys in four California offices and one office in New York.

Suit: Tuition law biased

ALLOWING ILLEGAL IMMIGRANTS TO PAY LOWER FEES ATTACKED

By Jessie Mangaliman

Mercury News

California’s public universities and colleges violate federal law by charging illegal immigrants lower in-state tuition rates, discriminating against U.S. citizens from out of state who are charged a higher rate, according to a class action lawsuit filed Wednesday in Yolo County Superior Court in Woodland.

Lawyers representing dozens of students across the state — and potentially thousands more who pay out-of-state tuition to attend the state’s public colleges and universities — declared that those students are penalized by the state and denied public benefits given illegal immigrants. The suit names regents of the University of California, trustees of the California State University and governors of the California Community Colleges as defendants.

“They are victims of an illegal policy of discrimination,” said Redwood City lawyer Michael J. Brady, “that has cost them hundreds of millions of dollars collectively.”

At a news conference in Sacramento on Wednesday, lawyers said California’s 2002 legislation AB 540 violates federal law because it benefits only illegal immigrants. A 1998 federal law gives states the authority to grant in-state tuition to illegal immigrants, if it extends that same benefit to all out-of-state students.

California’s AB 540 allows illegal immigrants who graduated from a California high school and have lived in the state for at least three years to pay in-state tuition at state colleges and universities.

The law was aimed at the minor children of undocumented immigrants who were brought to the United States as small children and attended and graduated from California public secondary schools.

The lawsuit claims that AB 540 “actively discriminated against tens of thousands of out-of-state students without informing them of their potential rights under federal and state law.” It is seeking tens of thousands of dollars in tuition restitution for each student plaintiff.

Officials and lawyers for the state’s vast public university system immediately dismissed and challenged the lawsuit’s claims, saying that California, in fact, allows out-of-state students to claim an exemption and pay in-state tuition, the same as undocumented immigrant students, if they meet the requirements of AB 540.

In the University of California system, for example, an estimated 70 percent of students who claim an exemption and pay in-state tuition — although they are from out of state — are U.S. citizens.

In addition, to qualify for in-state tuition, anyone can establish residency in California by living in the state one year and a day.

In 2004, there were 208,000 students in the UC system, and 1,340 of them benefited under AB 540, all U.S. citizens or legal residents, according to Christopher Patti, an attorney representing the UC regents.

“The UC policy is consistent with state law,” Patti said, “which both the attorney general and the state Legislature determined is not in violation of federal law.”

Rosa Perez, chancellor at San Jose-Evergreen Community College District, argued that undocumented immigrants have a tougher state residency requirement to fulfill — three years in the state and a high school diploma. In addition, undocumented students must sign a document saying they are in the process of legalizing their status.

“I don’t know what this lawsuit is talking about,” Perez said. “It’s inaccurate.”

“It’s another attempt to confuse the public,” she said, “and sway people to become anti-immigrant.”

The heart and core of the lawsuit is a simple claim, Brady said: Illegal immigrants, no matter how long they’ve lived in California, are not “residents” of the state, and are not entitled to in-state tuition rates.

What’s more, the state’s requirement that a student, in order to qualify for the benefits of AB 540 be “without lawful immigration status” inherently excludes U.S. citizens, the lawsuit said.

The state formulated a discriminatory law to allow illegal immigrants to pay in-state tuition, the lawsuit said.

Herb Castillo, a Bay Area immigrant advocate who supported proposed legislation to give legal status to undocumented students, had a different perspective of the lawsuit.

“The moral imperative of denying young people whose futures are here in the States, to deny them an education is shortsighted beyond belief,” he said.

For pleadings in the lawsuit, see Download AR-M350_20051214_153518.pdfFor criticism of the suit, see Download ab_540_litigation.docMichael Olivas has collected a ton of materials on the litigation and reports the following:As I mentioned last week, some of the same lawyers that challenged the undocumented college student statute in KS have filed a similar suit in CA. They lost in the district court in Kansas City, and the case is now on appeal at the 10th Circuit. . . .I have a number of press stories on the CA action, should anyone wish them.My response has been that any such statutes are according to IIRIRA provisions, and that one student receiving in-state status does not affect or harm another student who does not qualify. Indeed, the UC data show that most of the students in that system who used the AB 540 provision were not undocumented at all, but were former CA residents who left the state and returned there after having abandoned their residency. As I often say, no good deed goes undocumented.Michael A. OlivasUniversity of Houston Law CenterKJ