CLICK HERE FOR A CONSULTATION
California Supreme Court Upholds Resident Tuition Break for Illegal Aliens; Federal Immigration Law Does Not Preempt Education Code Provision That Allows Certain Illegal Aliens to Pay In State Tuition
Illegal immigration is a hot topic, and so are laws that allow undocumented aliens to enjoy benefits provided to legal residents. In Martinez v. Regents of the University of California, the California Supreme Court has upheld a provision in the state Education Code that allows certain illegal aliens to enjoy favorable tuition rates that apply to legal California residents. The controversy arose when nonresident citizens who pay higher out of state tuition rates sued the University of California, claiming that the law allowing illegal aliens to pay less than they do is discriminatory and violates Federal immigration laws.
The Education Code provision is Section 68130.5, which provides that a students can pay in-state resident tuition rates if they have (1) attended high school in California for three or more years; (2) graduated from a California high school; (3) registered at an accredited institution of higher learning in California; and (4) in the case of a person without lawful immigration status, if they file an affidavit with the academic institution stating that the student has filed an application to legalize his/her immigration status, or will file such an application as soon as he/she is eligible to do so.
The plaintiffs argued that section 68130.5 is preempted by Federal immigration laws, specifically Section 1623 (a) of Title 8 of the United States Code, which provides in general that an illegal alien “shall not be eligible on the basis of residence within a State for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit.” The argument was that this Federal statute conflicts with Education Code section 68130.5 and therefore preempts it under the Supremacy Clause of the U.S. Constitution, which allows Federal law to trump State law in certain cases.
The California Supreme Court found, however, that the Education Code section does not confer benefits on the basis of residence alone, which is the Federal requirement under Section 1623 (a). Instead, the court noted that not all illegal aliens who reside in California can qualify for benefits under Education Code section 68130.5; only those who have met the statutory criteria (i.e., three years of high school attendance in the state) can do so.
The court also ruled that the Education Code section did not violate the federal Privileges and Immunities Clause which is part of the Fourteenth Amendment.
For your convenience, a complete copy of the court’s opinion is attached.
At Slote & Links, we regularly advise school leaders about issues pertinent to public and private education. Feel free to contact us if you have an issue in this important area.