The U.S. Supreme Court on June 6, 2011 rejected a challenge to a California law that gives illegal immigrants the same in-state college tuition rates as legal state residents, another contentious issue in the nation’s immigration policy debate. The justices refused to hear an appeal by group of out-of-state U.S. citizens after the California Supreme Court unanimously upheld the law and dismissed their lawsuit.

Original article on the California Supreme Court Decision can be found here:

http://www.tagrelaw.com/news/in-state-tuition-for-unlawful-aliens/

The California Supreme Court in 2010 upheld a state statute (Education Code Section 68130.5) that allows all students, regardless of immigration status, who attend high school in California for three years and graduate from a California high school to pay in-state tuition rates at California public colleges and universities. The decision was Robert Martinez et al. v. The Regents of the University of California et al.

Opponents of the law contend section 68130.5 conflicts with and is preempted by federal law (8 U.S.C. § 1623) which prohibits states from making undocumented immigrants eligible for postsecondary education benefits, such as in-state tuition, “on the basis of residence within a state” unless a citizen or national of the United States is eligible for the benefit. Opponents argued illegal aliens cannot be allowed in-state tuition rates because U.S. citizens and nationals who do not reside within California are not eligible for the benefit and must pay nonresident tuition.

The Court decided section 68130.5 does not violate section 1623, and complies with federal law, because it is not based on residence within California. The Court explained that attending high school in California for at least three years and graduating from a California high school are not the functional equivalent of residence in California, and gave examples of how some citizens who are not residents of California may also be eligible for in-state tuition under 68130.5.

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