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November 2, 2010

California Supreme Court Upholds Resident Tuition For Unlawful Aliens

In a long awaited decision, the California Supreme Court unanimously ruled that the University of California, California State University, and California Community Colleges may continue to exempt unlawful aliens from paying nonresident tuition if they meet certain requirements, including attendance and graduation from a California high school. Martinez v. Regents of the University of California (2010) -- Cal.Rptr.3d -- 2010 WL 4582522.


This highly politicized challenge to California Education Code section 68130.5, in effect since January 1, 2002, was filed against the Regents of the University of California and officials of the California State University
System and the California Community Colleges by a group of United States citizens who paid nonresident tuition at a California public university or college. The plaintiffs argued they were illegally denied the tuition exemption authorized by Education Code section 68130.5.

Section 68130.5, applies to both U.S. citizens and unlawful aliens, and provides an exemption from paying nonresident tuition for individuals who have attended high school in California for three years and graduated from
a California high school. Plaintiffs alleged that this section violated federal immigration law and other federal and state laws.

The trial court granted a motion by the Defendants and dismissed the action. The Court of Appeal reversed the judgment and held that Section 68130.5 was preempted by federal immigration law, and Plaintiffs stated
a viable claim that Section 68130.5 violated the privileges and immunities clause of the Fourteenth Amendment to the United States Constitution. The Court of Appeal denied Plaintiffs claims that Section 68130.5 violated
other provisions of federal and state law.

In its decision, the California Supreme Court noted that it received numerous briefs making policy arguments both for and against the tuition exemption, including that Section 68130.5 affords deserving students with otherwise unavailable educational opportunities, while conversely, it flouts the will of Congress, wastes taxpayers’ money, and encourages illegal immigration. However, the Court noted that its task was not to determine policy, but rather to determine the legal question of whether the tuition exemption is prohibited by or inconsistent with federal law,or otherwise invalid.

Resident Tuition for Unlawful Aliens Does Not Violate Federal Law

The Court held the tuition exemption does not violate federal immigration law which prohibits unlawful aliens from receiving postsecondary education benefits based on residence within a state (8 U.S.C. § 1623), and prohibits unlawful aliens from being eligible for state or local public benefits, except as provided by the state (8 U.S.C. § 1621).

The Court’s holding was based on a determination that the tuition exemption is not based on residence. Specifically, the Court found that many unlawful aliens who would qualify for resident status if they were legally in
the state, would not be eligible for the tuition exemption, because they had not attended high school in California for at least three years and met the other exemption requirements. Additionally, the Court found that many
nonresidents of California who are lawfully in the country would qualify for the exemption.

The Court also determined that in enacting Section 68130.5, California provided for unlawful aliens to be eligible for the tuition exemption, in compliance with federal immigration law.

The Court also held the tuition exemption did not violate the privileges and immunities clause of the Fourteenth Amendment, which prohibits states from making or enforcing laws abridging the privileges or immunities
of United States citizens, because there is no right for nonresident U.S. citizens to pay resident tuition.

In making this determination, the Court noted that Congress could have prohibited states from making unlawful aliens eligible for in-state tuition, but it did not do so.

What Does This Decision Mean for California Colleges

This decision is applicable to the University of California, State University of California, and California Community Colleges. This decision does not result in a change to the manner in which California colleges
currently determine the amount of tuition to charge to unlawful aliens who meet the requirements for a nonresident tuition exemption. However, this issue could end up before the United States Supreme Court, as the attorney for the plaintiffs indicated he intends to appeal the decision. It is unknown whether the U.S. Supreme Court would decide to hear the appeal. However, as nine other states have similar laws, the case may hold interest for the U.S. Supreme Court. We will keep you informed of any further events in this case.

Data provided to the Court by the University of California indicates most students who receive the nonresident tuition exemption are lawfully in the United States.


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