by Steve Rhodes

On October 5, the California Supreme Court held a hearing on the question of whether California’s rules on in state college and university fees for certain undocumented immigrants should be overturned.

The policy in question resulted from the passage and signature of AB 540 in 2001. The bill says that undocumented immigrants can pay in-state tuition fees, while attending California’ public colleges and universities, if:

- They had attended highschool for at least three years in California.

- Had earned a highschool diploma in California.

- Had submitted an application for legal residency in the US or had signed an affidavit pledging to apply for legal residency once they are eligible to do so.

This policy can make a huge difference for students. According to the University of California Riverside (UCR) web site, the total costs for attending UC, while living with your parents, would be ,633 for students paying in state fees, and ,562 for those paying non-resident fees. To see this data on UCR web site, click on the following link: http://finaid.ucr.edu/UCR+Costs/

AB 540 has been challenged by those who oppose offering in state tuition and fees to any undocumented immigrants. One of their primary arguments has been that AB 540 is in violation of federal regulations. They site, in particular, section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Title 8, Chapter 14, Sec. 1623(a). This section says:

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” In general, notwithstanding any other provision of law, 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 post-secondary 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. “

The opponents of AB 540 say that, under AB 540, a US citizen, who is a resident of, say Ohio, would not qualify for in-state tuition at California’s public colleges and universities whereas an undocumented immigrant living in California would. They say this violates the above federal law.

The attorneys supporting AB 540 responded that the benefit provided by AB 540 to some undocumented immigrants is, in fact, available to citizens from other states who meet the Three criteria listed in AB 540.

For example, a student, who is a citizen might have spent three years in California’s high-schools and might have gotten a high-school diploma in California before moving with his or her parents to Nebraska. This student would be eligible, they said, for in-state tuition even if he or she is now legally a resident of Nebraska. In summary, AB 540 provides its benefit not no the basis of citizenship, but on the basis of where the student got his or her highschool education and diploma.

California’s Third District Court of Appeal ruled that AB 540 is void because it violates federal law. But the supporters of AB 540 appealed to the state’s Supreme Court.

Some of the Supreme Court Justices appeared to be leaning towards upholding the legality of AB 540. For example, Justice Carol A. Corrigan said that the available data indicates that 70% of those paying in-state tuition and fees, under AB 540, are citizens or legal residents of the United States.

Support For this point can be found in a report by the office of the President of the University of California. You may see a copy of this report by clicking on the following link: AB 540 Annual Report. Check page 3 of the report to see the estimates.

Justice Corrigan asked a lawyer arguing against the law, Kris W. Kobach, if he believed California would need to allow all U.S. citizens to pay in-state tuition in order to meet the federal test. When he answered yes, she was incredulous. “All? Every single one?” she said.

Another justice, Kathryn Mickle Werdegar, appeared to reject the argument that the California law should be preempted by federal law.. Given that out-of-state students who meet the California law’s requirements can also receive the benefit, Justice Werdegar said, “there is no violation of Section 1623, because it is not based on residency.”

The California Supreme Court’s decision will be announced some time in the next few months. However, whichever way the court rules, the case is likely to be appealed to the us courts. We will have to wait patiently for a final decision on this issue.

Boyce Hinman

California Communities United Institute

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