California clash: tuition for illegal immigrants

That's the crux of an obscure federal requirement that has triggered a major lawsuit here - and thrust the nation's bitter debate about immigration squarely into the arena of higher education.

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The suit, filed Wednesday, charges that California educators have illegally discriminated against 60,000 out-of-state students who pay higher tuition at any of California's public colleges - up to $17,000 per year higher - than do undocumented students living in California, who qualify for lower, in-state rates under a 2001 state law.

Those students say they should be charged no more than illegal immigrants - and they want a refund.

The financial stakes for California are high: Damages could reach hundreds of millions of dollars, estimates Michael Brady, an attorney for the out-of-state students and parents. But the bigger impact, analysts say, could be the message it sends to state legislatures nationwide about the level of government benefits they can provide to illegal immigrants.

"This will set precedent," says Ira Mehlman, media director for the Federation for American Immigration Reform, an advocacy group based in Marina del Rey, Calif., that promotes stronger immigration controls. "If courts uphold this suit, then it sends a very clear message to all the states that have done this that it's not acceptable."

"It's about equality," says Hawaiian Chaning Jang, a senior at the University of California, Davis, who joined the suit. "Our parents pay taxes. Their [parents] don't."

Students must pass criteria

The University of California system, for one, rejects the charges. "Our policy is consistent with federal law," says Ricardo Vazquez, a university spokesman. He calculates that just a few hundred of the 10-campus network's 208,000 students could be categorized as illegal immigrants who receive tuition discounts. Undocumented students, he says, must pass criteria, such as having graduated from a California high school and signing an affidavit that they are seeking legal status, before being admitted and offered in-state tuition rates.

"In light of the unusual structure of the state legislation in California, it may not have dramatic national legal implications," says Sheldon Steinbach, general counsel for the American Council on Education in Washington. "However, to the public at large, the issue of providing in-state tuition for the sons and daughters of illegal immigrants remains an emotional one."

Nine states currently offer in-state tuition to undocumented students; none of these grants the discount to out-of-state students. Legislatures in a dozen other states have wrestled with similar bills. Debate has been marked by pointed and personal exchanges, as was the case in Massachusetts this fall.

Students without legal immigrant status are ineligible for federal financial aid, but a 1982 Supreme Court decision requires all states to provide them with K-12 education, according to the National Conference of State Legislatures.

Legislation pending in US Congress, known as the DREAM Act, would repeal Section 505 of the 1996 immigration law that triggered the California lawsuit. But that wouldn't nullify the merits of the case, says Kris Kobach, professor of constitutional law at the University of Missouri-Kansas City, who is helping the plaintiffs. Their rights, he says, are still being violated under other grounds - most notably, the equal-protection clause of the 14th Amendment of the US Constitution.

Some see political motivations

Some observers find that claim far-fetched. "The lawsuit is political," says Josh Bernstein, director of federal policy for the National Immigration Law Center, a group based in Washington that promotes immigrant rights. "They want to keep alive the threat of lawsuits, because a lot of states are considering similar legislation." He doubts the suit will succeed. "It's very unlikely," he says, noting that a similar case brought in Kansas was dismissed. It's now being appealed.

Both sides agree that, legal matters aside, the case goes to the heart of fundamental American values. "This isn't about illegal immigration," said student plaintiff Briana Bilbray, a sophomore at San Diego City College, at Wednesday's press conference. "It's more about fundamental principles of fairness." Her father and fellow plaintiff, Brian Bilbray, is a former member of Congress and is running again as a Republican to fill the 50th District seat vacated by Randy "Duke" Cunningham.

Others say it makes no sense to educate undocumented students through 12th grade, but then not help them afford college, which can bring them more fully into American society. The sense "among educators in this country is that educating these young men and women who have already graduated through our school system is a wise bet that will generate productive income-producing members of our society," says Mr. Steinbach.