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In-state tuition for illegal immigrants survives, Supreme Court declines case

The Supreme Court refused Monday to hear a challenge to a California law that allows illegal immigrants to pay in-state tuition at state colleges and universities.

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The state supreme court said if Congress intended to impose a ban on illegal immigrants receiving in-state tuition it could have done so. Instead, Congress restricted only the use of residence as a criterion, the court said, but it did not bar states from identifying other criteria to award the in-state discounts.

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In urging the US Supreme Court to take up the case, Kris Kobach, a lawyer for the students, said the congressional measure is aimed at blocking the provision of benefits to illegal immigrants. He said Congress wanted to reduce any incentive for undocumented immigrants to enter or remain in the country unlawfully.

“Congress was concerned about states offering illegal aliens a particular benefit – resident tuition rates or the functional equivalent,” he wrote in his brief. “California spends in excess of $208 million each year subsidizing the tuition of illegal aliens under the [California law],” he said.

Julie Weng-Gutierrez of the California attorney general’s office urged the justices to dismiss the appeal, saying the out-of-state students lacked the necessary legal standing to bring the case. She said their lawsuit was aimed at fighting a generalized grievance over the state’s alleged noncompliance with federal law rather than a particularized and personal injury the resolution of which would directly benefit them.

Even if they won their suit, a favorable ruling would not reduce their tuition rates, she wrote.

Ms. Weng-Gutierrez added that there was no disagreement among the circuit courts of appeal on the issue of in-state tuition rates for illegal immigrants necessitating the high court’s intervention.

She noted in her brief that 500 children who are residents of an adjoining state or country are attending California high schools. She added that 5,000 to 6,000 children of undocumented immigrants graduate each year from California high schools.

Ethan Schulman, a lawyer for the regents of the University of California, also urged the Supreme Court to dismiss the appeal. He said the California legislature did not defy Congress in passing the in-state tuition law. State lawmakers “carefully tailored that statute to comply with federal law,” he said.

The California law’s criteria (graduation from a California high school and three years attendance) are not the same as residence, nor are they a de facto or surrogate residency requirement, Mr. Schulman wrote, echoing the California Supreme Court decision. The state court opinion continues: “Congress specifically referred to residence – not some form of surrogate for residence – as the prohibited basis for granting unlawful aliens a postsecondary education benefit.”

The case is Martinez v. Regents of the University of California (10-1029).

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