Making College Less Accessible for Immigrant Students One Lawsuit at a Time

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”


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:

  1. 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.
  2. 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.

Do individual states have the right to “establish reasonable criteria” for in-state tuition? In Goodhart v. Bd. Of Visitors, the District Court for the Western District of Virginia ruled that a state had a legitimate interest in protecting the right of its bona fide residents to attend its colleges and universities on a preferential basis. “Preferential tuition rates serve not just legitimate, but important, state interests.” The decision upheld a resolution by a university in Virginia not to grant instate tuition to a student from Georgia who had moved there for higher education and claimed to remain indefinitely.

Does 8 U.S.C. § 1623 prevent states from granting instate tuition to undocumented students? Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Title 8, Chapter 14, Sec. 1623(a)) states: “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.” Some interpret this law to mean that instate-tuition for undocumented students is unconstitutional—the Courts have thus far skirted around the issue.

Does instate-tuition for undocumented students violate the equal protection clause of the Fourteenth Amendment?

No. In Plyler v. Doe, the Supreme Court held that “no plausible distinction with respect to Fourteenth Amendment jurisdiction can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” Hence, an undocumented student is entitled to the same protection under the laws as a citizen.

Citing “lack of standing,” the Tenth Circuit Court of Appeals recently dismissed a lawsuit filed by nonresident citizen students against Governor Selebius for granting resident tuition to undocumented students.

Does 8 U.S.C. § 1623 allow American citizens and legal residents private right of action i.e. filing a discrimination claim against a university for giving instate-tuition to undocumented students?

In Day v. Selebius, using 8 U.S.C. § 1623, plaintiffs filed a lawsuit against Governor Kathleen Selebius, challenging the Kansas instate-tuition law which allowed at least six undocumented students to qualify for Kansas resident tuition. The Tenth Circuit dismissed the suit stating that the plaintiffs failed to show they were injured by the Kansas Law (K.S.A. § 76-731a) that grant instate-tuition to certain non-residents. Nor could any injury be redressed by overturning the law since the plantiffs would not be eligible for resident tuition even without the law:

“Discrimination cannot be the cause of injury to an applicant who could not have obtained the benefit even in the absence of the discrimination, and such an applicant lacks the requisite personal stake in the outcome because he would still not qualify for the benefit following a decision in his favor.”

Also, while the Court admitted that they might have standing under 8 U.S.C. § 1623, the federal code provided no private right of action.

And if anyone wants to throw out the ‘international students’ have to pay more so why shouldn’t students without proper legal status argument, I have about five replies for you:

1. In-state tuition eligibility is determined by attendance for more than three years at an in-state high school not actual RESIDENCY.

2. Undocumented students were BROUGHT HERE by their parents–they did not CHOOSE to come here to study unlike International students.

3. For most undocumented students, America is their home — they have no other country to ‘go back’ to or contribute to to send remittances to.

4. Most undocumented students are likely to stay in the United States and contribute to this economy. Most international students are supposed to go back home (since they come on a non-immigrant visa).

5. Most undocumented students have taxpaying parents and are taxpayers themselves. Most international students do not have parents that pay taxes into the local, state and federal coffers.

Coming back to the issue at hand, what does Kris Kobach have to gain from making a college education more inaccessible to bright students–students who have beaten the odds? Would the state and taxpayers (many of whom are also undocumented) be better off if these students–raised in America and as Americans–were out in the streets and involved in shady activity like drug peddling in order to make a living? Since ‘illegal’ is not a permanent immutable characteristic, how can we justify erecting barriers for students that are bona-fide residents of the state and tomorrow, may become citizens of the state?! What does society gain from creating a permanent underclass of less literate, less fortunate, less educated individuals–punishing them because their parents brought them  here without proper documentation when they were too young to decide for themselves? We don’t fine or punish children for tax fraud and other civic violations committed by their parents so why punish young adults caught in circurmstances they cannot help?

Make no mistake Mr. Kobach — The affirmation of your flawed interpretations of the law are short-lived. They are also never going to be widespread since the United States Supreme Court has refused to hear your legal whining on this issue. Stop making scapegoats out of students and find some other worthwhile activity that contributes to real change for your supposed constituents.

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