California court ruling on in-state tuition is not the last word

From The National Immigration Law Center, this is the latest news:

On Monday, September 15, a California Court of Appeal panel overturned the Superior Court's decision dismissing a challenge to AB 540, California's in-state tuition law. Martinez v. Regents of the University of California, No. C054124 (CA3 Sept. 15, 2008). The Court of Appeal's ruling, if allowed to stand, would return the case to the Superior Court for trial. The court did not enjoin or block AB 540. The law remains in effect. Similar laws in others states were not affected by the ruling. The decision will likely be appealed and any final decision is likely to come from the California Supreme Court.

AB 540 provides that students who have attended at least 3 years of high school in California, graduated from a California school and meet certain other conditions may attend state colleges and universities at the same rate that is charged to state residents. Some students who qualify for AB 540 are undocumented immigrants who live in California. Others are U.S. citizens who attended school in California in the past but are now unable to establish state residence, such as those who live in a neighboring state or those who recently returned to California after living elsewhere. In fact, about 70 percent of AB 540 students attending the University of California are U.S. citizens who do not meet the state residency requirements for in-state tuition purposes.

Despite these facts, the Martinez Court found that AB 540 confers a benefit "based on residence" and therefore conflicts with a federal law that precludes such a benefit for undocumented immigrants unless the same benefit is available under the same conditions to U.S. citizens who are not residents of the state. The opinion is internally inconsistent, and conflicts with other court decisions that have addressed the in-state tuition issue.

It would be extremely unfortunate if this intermediate court decision were upheld. The affected students are talented high achievers, who grew up in California and persevered against the odds to graduate from high school and meet the qualifications for higher education. They include valedictorians, class presidents, and student prizewinners, among others. California can ill afford to deny these students the opportunity to complete their education. The elected representatives and governor of California as well as those of nine other states - where the majority of undocumented immigrants live - have determined that it is a wise policy to charge these students an affordable tuition.

Monday's decision is only one step in the process of resolving the legality of AB 540. The decision is based on a flawed legal analysis and we are hopeful that it will be reversed.

The Martinez case adds urgency to efforts to pass the federal DREAM Act and thereby address the status of undocumented immigrant students who have grown up in this country. The federal DREAM Act would provide immigration relief to those who entered the U.S. more than 5 years ago if and when they graduate from high school. It would allow them to become permanent residents and eventually citizens if they go to college or serve in the military.

For more information, please contact Josh Bernstein at bernstein@nilc.org

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