CSU Case May Become Legal Test for Prop. 187 : Courts: A 2-year-old lawsuit seeks to force the Cal State University system to require illegal immigrants to pay out-of-state tuition.

A case involving whether illegal immigrants attending colleges in the California State University system should pay higher out-of-state fees could serve as a legal precedent for the courtroom battle to be fought over Proposition 187.

The lawsuit, filed two years ago by several taxpayer and immigration reform groups, aims to force the Cal State system to revoke its policy of allowing illegal immigrants to pay the lower tuition fees reserved for California residents.

That case “could test the constitutionality of 187, at least as it applies to higher education,” said USC law professor Erwin Chemerinsky, who specializes in constitutional law. “It could be one of several cases cited when 187 goes to court.”

Both the University of California and state community colleges are abiding by a 1990 state appellate court ruling--called the Bradford decision--that required the UC system to charge out-of-state fees to students who are not here legally.

But the Cal State system decided to follow a 1985 Alameda County decision allowing illegal immigrants who live in California to pay the same fees as the state’s legal residents.

Because illegal immigrants are ineligible for all federal and state financial aid, many students seeking a college education now find Cal State is the only choice they can afford. Financial aid is available only to those who can prove they are legal residents.

“Right now, Cal State is the only option for undocumented students,” said Linda Loya, a college counselor at Huntington Park High School. “Every year, at least two of the students who graduate in the top 10 are undocumented, and most of them go to Cal State schools.”

A Los Angeles Superior Court judge ruled in favor of the plaintiffs in September, 1992, but Cal State appealed the decision. The 2nd District Court of Appeals is expected to hear the case as soon as the end of this year.

“It’s going to be the hottest case in the state because it will serve as a precedent to 187,” said Richard Knickerbocker, an attorney representing the seven groups and three individuals who filed the suit.

Said Leslie Dutton, president of the American Assn. of Women, one of the groups challenging the tuition policy: “It will be a forerunner to 187 because it reflects the question as to whether taxpayers should help pay for the education of people who are here illegally. It’ll show the disposition of the courts on this issue.”

Proposition 187, which was approved by nearly 60% of the state’s voters, bars illegal immigrants from publicly funded education, social services and non-emergency health care.

Enforcement has been temporarily blocked by a federal judge in Los Angeles, after several groups filed lawsuits contending that the measure is unconstitutional. The case is likely to be fought in both state and federal courts for the next few years.

The Cal State case will likely be resolved first. However, if Proposition 187 is upheld, it would make the earlier ruling moot, because illegal immigrants would be excluded from all the state’s public schools, said Cal State spokesman Steve MacCarthy.

“The whole issue of whether we should charge in-state or out-of-state fees would be thrown out the window,” he said.

And even if Proposition 187 is determined to be unconstitutional, illegal immigrants could still be forced to pay the higher fees, if the ruling in the Cal State case supports the Bradford decision.

According to university estimates, there are about 950 illegal residents enrolled at Cal State’s 20 campuses. They pay $1,584 annually in resident fees, compared to the $7,380 tuition charged students from outside the state.

Knickerbocker, however, challenges that estimate. “I think that’s really low. The university doesn’t require students to prove their legal status, so how can they know how many illegal students there really are?”

Luis, a Cal State Los Angeles junior who is here illegally, said he would have to withdraw from school if he is forced to pay the higher fees.

“The feeling I have is that we’re not wanted,” he said. “People want us to have low incomes and seem afraid of us succeeding.”

The 23-year-old came to Los Angeles nine years ago from Durango, Mexico. He graduated from Fremont High School and now works full-time in an office to earn money to pay tuition.

“I’ve worked in construction, at a restaurant and in the fields in Napa Valley to get an education here,” he said. “I eventually want to transfer to UCLA to get my master’s degree in anthropology. I know it sounds unrealistic for me to say that, but I still have dreams.”

Although Cal State officials did not take a formal stance on Proposition 187, MacCarthy said there are “grave concerns” about its possible implementation.

Implementing the initiative would require the university to violate federal privacy laws in disclosing the legal status of its students, MacCarthy said, and could cost the system all its federal funding, including its financial aid for students.

About 65,000 of Cal State’s 320,000 students receive $112 million in federal Pell grants, according to university figures.

In addition, Cal State’s plans to open a new campus on the former Ft. Ord army base in Monterey County may be in jeopardy, since the university received $130 million from the U.S. Army to convert the 2,000-acre base. Cal State hopes to open the campus next fall.

“We will comply with the law, whatever it is,” said Christine Helwick, Cal State’s general counsel.