California Supreme Court Upholds Law Granting Undocumented Students In-State Tuition

WASHINGTON -- The California Supreme Court on Monday unanimously upheld AB 540, a law allowing undocumented students to pay in-state tuition -- rather than the more expensive out-of-state tuition -- at public colleges and universities. The decision overturned a lower court's ruling and will likely have a wider impact as 10 other states have a law similar to AB 540.

The plaintiffs in the case were out-of-state students and their families, who argued that they should not have to pay higher tuition while undocumented immigrants were granted the lower in-state rate. "U.S. citizens should have at least the same rights as undocumented immigrants," said plaintiff Aaron Dallek, an Illinois native who graduated from UC Berkeley in 2006.

Federal law says that "an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State" for postsecondary education benefits.

But the California Supreme Court, noting the "controversial" nature of the issue, concluded that AB 540 is not based on legal residency, since it is given to students who have attended high school in California for at least three years (among other requirements), and not all those who meet those standards will necessarily be residents. For example, an out-of-state student who attended boarding school in California or a student who attended school in the state for three years but then moved away and became a resident elsewhere would both be eligible for in-state tuition.

"If Congress had intended to prohibit states entirely from making unlawful aliens eligible for in-state tuition, it could easily have done so," concluded the court in a ruling written by Justice Ming W. Chin, one of the more conservative justices. "It could simply have provided, for example, that 'an alien who is not lawfully present in the United States shall not be eligible' for a postsecondary education benefit. But it did not do so; instead, it provided that 'an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State' for a postsecondary education benefit."

The case attracted scores of support briefs, including by Reps. Steve King (R-Iowa) and Lamar Smith (R-Tex.), both members of the House Judiciary Committee. (King is likely to become the chair of the House subcommittee on immigration in the new Congress.)

"We should not reward illegal behavior," said Smith. "It's fundamentally unfair to tell American parents who are not from California, but have paid taxes all their lives that they have to pay higher tuition bills to send their children to college than do illegal immigrants."

Hundreds of undocumented students attend public colleges and universities in California, according to the Los Angeles Times.

AB 540 allows undocumented California students to pay in-state rather than out-of-state tuition; California is one of 11 states with such a law. (Earlier this month, Georgia banned undocumented immigrants from its most selective public colleges.) Experts expect the decision to be appealed to the U.S. Supreme Court.

According to the Fresno Bee, had the court declared AB 540 unconstitutional, the state of California would have been forced to "reimburse thousands of U.S. students for the extra cost incurred when they were charged out-of-state fees."

At the federal level, advocates are pushing for the DREAM Act, legislation that would grant a path to citizenship for undocumented students who came here as children and are pursuing higher education. On Monday, Rep. Mario Diaz-Balart (R-Fla.) called on House Speaker Nancy Pelosi (D-Cali.) to schedule a vote on the legislation, which he co-sponsored, during the lame duck session of Congress. In the Senate, the DREAM Act may possibly be included as part of the National Defense Authorization Act, along with a repeal of Don't Ask, Don't Tell.

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