Lawsuit over immigrants’ tuition goes before state Supreme Court

The California Supreme Court appeared skeptical Tuesday of a lawsuit that would end in-state tuition for an estimated 25,000 illegal immigrants who attend the state’s public universities and colleges.

The state high court is reviewing an appeals court ruling that said the state is barred by federal immigration law from giving illegal immigrants in-state tuition, which can be as much as $19,000 a year lower than fees charged to out-of-state students.

At issue is a 2001 state law that provides lower tuition for students, including illegal immigrants, who attend at least three years of high school in California and graduate here.

The lawsuit contends that the law is preempted by a federal law that prohibits states from using residency requirements to give educational benefits to illegal immigrants that are denied to U.S. citizens.


During a special session in Fresno, several justices noted that the state law provides benefits to citizens as well as illegal immigrants. Out-of-state citizens who attend high school in California also are eligible for the lower in-state college tuition under the law.

“If that is the case,” said Justice Kathryn M. Werdegar, “there is no violation … because [state law] is not based on residence.”

Justice Joyce L. Kennard agreed that the state law “doesn’t say anything about residence.”

The lawsuit was brought by a conservative group on behalf of out-of-state students who paid higher tuition at California colleges than illegal immigrants who graduated from California high schools.

Kris W. Kobach, arguing for the out-of-state students, said the lower tuition for illegal immigrants costs the state more than $200 million annually.

“If you give it to illegal aliens, you have to give it to all U.S. citizens,” he told the court.

Justice Carlos R. Moreno appeared to find some validity in the lower court’s ruling.

“In a common sense sort of way, isn’t the Court of Appeal correct in saying that three years of high school is sort of a proxy for residency?” he asked.


But Moreno also noted that several other states have laws similar to California’s. “Isn’t the Legislature free to define residency any way it wants?” he asked.

Justice Ming W. Chin suggested that giving lower tuition to illegal immigrants may not make sense financially.

“In this budget climate, is this really a good idea? Can we afford it?” he asked. “Or should we even consider that? Is that our job?”

A ruling is expected within 90 days. If the court upholds the state law, the case is expected to be appealed to the more conservative U.S. Supreme Court.