California court backs in-state tuition for illegal immigrants

In a decision that added a new twist to the debate surrounding federal versus state control of immigration, the California Supreme Court on Monday ruled that undocumented immigrants can be eligible for reduced in-state tuition at California's public colleges and universities.

The case, Martinez vs. Regents, challenged a 2001 state law – the California Immigrant Higher Education Act – that gives in-state tuition rates at California’s public colleges to students who complete three years at a California high school and earn a high school diploma or equivalent, regardless of their immigration status.

On Monday the California Supreme Court concluded that the state's method of giving qualified undocumented students in-state tuition rates met the requirements for such established by federal law. The court found that, even though the federal government has established some restrictions on state power, states retain the legal capability to enable undocumented students to have meaningful access to college education.

Several analysts say in-state tuition may now become the new illegal immigration battleground. On Tuesday, for example, Massachusetts Gov. Deval Patrick said he would push to give illegal immigrants in-state tuition.

The California decision also begs the question of what the lame duck Congress will do with the DREAM Act – proposed federal legislation that would provide a path to citizenship to some illegal immigrants who were brought to the US as children.

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“Absent some action on the federal level – namely passage of the DREAM Act or comprehensive immigration reform – we will see skirmishes like this one in states ... and towns across the US," says Kevin R. Johnson, dean of the law school at the University of California, Davis. He cites Arizona’s immigration law, Oklahoma’s immigration law, and initiatives in Hazleton, Pa., and Farmer’s Branch, Texas, as examples of places where immigration is already a hot legal topic.

The state funding involved in sending non-citizen residents to school could bring the issue to ballots across the country, adds Steve Camarota, director of research for the Center for Immigration Studies, a pro-immigration think tank that seeks lower immigration numbers.

“The bigger question to me is whether other states will come under increasing pressure to do something about this issue politically given the enormous problems they are having with their own budgets,” he says. "It’s the kind of issue that most voters don’t think makes sense when states are struggling to pay for higher education.”

Noting that California has 25,000 undocumented immigrants in its higher education system, he says, “do you really want to be spending hundreds of millions on those who are not even supposed to be in the country?”

The issue could get very hot politically, agrees Jack Pitney, a political scientist at Claremont McKenna College in Claremont, Calif. “Think of it from the perspective of a California parent whose son or daughter did not get into the University of California," he says. “ 'Not only did an illegal alien take my kid’s spot,' the parent might think, 'but I have to pay higher taxes to support the illegal alien’s tuition!' ”

Immigration rights groups cheered the decision, saying it would help deserving students gain access to California schools. “This means that California's institutions of higher education will continue to be strengthened by the inclusion of some of our state's brightest and most successful students, who simply lack legal status due to the nation's failure to enact the widely-supported DREAM Act," said Thomas Saenz, president and general counsel of Mexican American Legal Defense and Educational Fund, in a statement.

Others say opportunity is what America is all about, and the decision will have positive fallout on the nine other states that have similar laws, including Texas and Kansas.

“This is a huge victory in terms of what other states will be willing to do,” says Andrea Ramos, director of the Immigration Law Clinic at Southwestern Law School. “If the court would have found for the plaintiffs, it would have put a damper on such ideas elsewhere.”

She says illegal immigrants going to college is not a drain on the system, but a boon, because the idea doesn’t amount to aid or grant money or constitute affirmative action.

“Our whole American way of life is based on merit,” says Ms. Ramos. “I’ve worked with these kids and when they find they’ve worked through high school with good grades and find they can’t go on to college, it’s devastating.”

There is some debate about whether Monday's ruling will help define further the legal concept known as “federal preemption,” which comes from the supremacy clause of the US Constitution. It holds that, in general, federal law trumps state law.

Some analysts say each part of the preemption law is discrete enough not to have broader implications. Others say each clarification, however small, helps. The California court found that the law does not conflict with a federal prohibition on education benefits for illegal immigrants based on residency, in part because US citizens from other states who attend high school in California may also benefit.

“This is kind of the flip-side of preemption as that raised by Arizona’s tough new immigration law,” says Vivek Malhotra, national state strategist for the ACLU Immigrants' Rights Project. The Arizona law is being challenged on constitutional grounds by the US Department of Justice in federal court. “The issue in that case is whether or not you can engage your policy in conflict with the federal government. What they’ve said here is that California can address a policy that addresses education for undocumented immigrants without running afoul of federal law.”