June 6, 2011 UPDATE: The U.S. Supreme Court on Monday 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 – November 10, 2010: In a decision likely bound for appeal to the U.S. Supreme Court, the California Supreme Court yesterday 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. A copy of the decision, Robert Martinez et al. v. The Regents of the University of California et al., can be downloaded below.

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.

For example, students who reside in an adjoining state may attend and graduate from a California school; students  who attend boarding schools and whose parents live in other states may meet 68130.5’s criteria, yet not be California residents; and those who lived in California for three years, but then moved and lose their residency status would also be eligible.   The Court noted that a majority of University of California students receiving the nonresident tuition exemption are in this country lawfully and concluded, therefore, that eligibility under 68130.5 is not based on California residency.

The Court also stated that if Congress intended to prohibit in-state tuition rates for undocumented aliens entirely, it could have easily done so.  Instead of saying undocumented aliens are not eligible based on residence, it could have simply said they are not eligible.  “The reference to the benefit being on the basis of residence,” the Court said, “must have some meaning.  It can only qualify, and thus limit, the prohibition’s reach.  Section 1623 does not govern this case.”

A copy of the Court’s decision can be downloaded here:

Martinez v. Regents of the University of California.

Section 68130.5 reads as follows:

Notwithstanding any other provision of law:
(a) A student, other than a nonimmigrant alien within the meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States Code, who meets all of the following requirements shall be exempt from paying nonresident tuition at the California State University and the California Community Colleges:
(1) High school attendance in California for three or more years.
(2) Graduation from a California high school or attainment of theequivalent thereof.
(3) Registration as an entering student at, or current enrollment at, an accredited institution of higher education in California not earlier than the fall semester or quarter of the 2001-02 academic year.
(4) In the case of a person without lawful immigration status, the filing of an affidavit with the institution of higher education
stating that the student has filed an application to legalize his or her immigration status, or will file an application as soon as he or she is eligible to do so.
(b) A student exempt from nonresident tuition under this section may be reported by a community college district as a full-time
equivalent student for apportionment purposes.
(c) The Board of Governors of the California Community Colleges and the Trustees of the California State University shall prescribe rules and regulations for the implementation of this section.
(d) Student information obtained in the implementation of this section is confidential.

Section 1623 reads, in relevant part:

Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.

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