Disclaimer: This issue does not relate to me. I am not an AB-540 student and nor have I ever benefited from it. But it makes me mad that people are scapegoating fellow college students who have worked really hard to get where they are .
Seriously, college education should be free for all and then we wouldn’t be fighting over the small piece of the pie. Alas …
Kris Kobach finally got his first and last victory in the battle to end in-state tuition for undocumented students. The 3rd District California Court of Appeal issued a decision yesterday that challenges a state law allowing some undocumented students to pay in-state college tuition. (Explanation here)
After losing the battle in district courts and appeals court in various states, Kansas Chairperson of the Republican Party, Kris Kobach made one final appeal to the U.S. Supreme Court, only to be turned down. Obviously, the justices on the U.S. Supreme Court had nothing to say on the issue that hasn’t already been said by the district and appeals courts: the plaintiffs do not have a right to sue.
He vowed to keep trying to make life more difficult for undocumented students or immigrants without legal status (whom he would call ILLEGAL students) and collect more plaintiffs in order to sue states for providing in-state tuition to undocumented students who had graduated from those state high schools (i.e. in California, your eligibility for in-state tuition is determined by whether you have attended a California high school for 3 or more years).
(While we are on the topic of “illegal,” for those who don’t know, Kris Kobach is the GOP politician that sent out emails boasting about voter caging–an ILLEGAL tactic employed by the Republican Party to purge likely-Democrat voters from the polls. I thought ‘illegal is illegal’ – Why is this guy still allowed to roam around free after disenfranchising thousands of voters?!)
Addendum: This from Duke @ Migra Matters. “Look who was part of that class action suit …Brian Bilbray…ex-FAIR lobbyist and head of the nativist Congressional Immigration Reform Caucus …his kids had been living in VA and didn’t qualify for in-state tuition”
On the DREAM ACT
While the DREAM Act does not grant instate-tuition rights to undocumented students, opponents of the legislation have effectively spread myths purporting that “illegal aliens can get instate-tuition anywhere” with passage of the legislation. This is baseless and untrue–If the federal DREAM Act passes it would make this ruling ineffective or the plaintiff’s argument ineffective because it repeals the only statute that gives or may give these plaintiffs any legal standing (8 U.S.C. § 1623). However, that does not ensure that undocumented students would get instate-tuition at all schools because residency determination is a state prerogative.
Eleven states currently provide in-state tuition to children without legal status in the United States (Texas, California, Utah, Washington, New York, Oklahoma, Illinois, Kansas, Minnesota, New Mexico, and Nebraska.) ALL legal challenges and lawsuits filed against these states had been dismissed by courts until yesterday when the on-crack judges wanting some fame of their own reversed a decision by Yolo Superior Court Judge Thomas Warriner in 2006 that upheld the AB-540 tuition law passed by the Legislature in 2001.
While the courts in California battle over the issue, undocumented students are expected to continue paying in-state tuition till a final ruling is given on this matter. This also gives new purpose to California AB-540 students to push for the Federal DREAM Act, passage of which would strike-down the federal law prohibiting ‘benefits’ for undocumented students in higher education (unless citizens get the same benefit).
I believe Quaker sums the issue up best here in his own light comedic way for any passerby to understand. Rahman has another strong piece posted here that anyone defending in-state tuition for undocumented students should find helpful.
Below is some material that I had published earlier to provide a better background on the in-state tuition debate.
For a legal background of the in-state tuition debate, we first look to Vlandis v. Kline et Al (1973), in which two students who had recently established residency in Connecticut brought suit against the state under § 1983, alleging that the provisions of 1971 Conn. Pub. Acts § 126(a), which created an irrebuttable presumption of nonresidency for purposes of determining tuition between residents and non-residents in the state’s universities, violated the Due Process Clause of the Fourteenth Amendment. The U.S. Supreme Court affirmed the suit—“the state was forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresidence when that presumption was not necessarily or universally true in fact.” The court concluded that due process required that students should have the opportunity to present evidence of their bona fide residency within the state for in-state tuition purposes.
This holds true for undocumented students—children that are brought up in a particular state, and attend and graduate from secondary schools in that state should indeed be deemed residents for tuition purposes. Most statutes that give undocumented students instate-tuition are based on this premise. After all, as the U.S. Supreme Court ruled in Plyler v. Doe:
- The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents.
- Neither is there any merit to the claim that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the State’s boundaries and to put their education to productive social or political use within the State.
Undocumented or Illegal is not an immutable characteristic for these students—it is subject to change. The U.S. Supreme Court recognized that the ‘illegal alien’ child of today could be the U.S. citizen of tomorrow and there was no way of determining that the undocumented child would in fact be deported hence, “it would of course be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain.” Similarly, since deportation is a federal procedure and until it is completed in cases of individual undocumented students, it is impossible for a state to deem that a person is a ‘non-resident’ for tuition purposes because s/he may just indefinitely remain in the state after establishing it as home. Hence, granting in-state tuition to undocumented students based on their residency in the state becomes a rational and reasonable objective for the state.