Author: Ralph W. Kasarda
In a decision with far reaching implications, the California Supreme Court held today that a California law granting in-state tuition benefits to "unlawful" aliens was not preempted by federal law. The unanimous decision in Martinez v. Regents of the University of California is here.
Martinez was brought by out-of-state students who claimed that California Education Code section 68130.5 was preempted by federal immigration law and void. That section is similar to the laws in nine other states that grant eligibility for in-state tuition to unlawful aliens (for the sake of political correctness, the court prefers the phrase “unlawful aliens” to “illegal aliens”). Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress prohibits states from granting postsecondary education benefits to unlawful aliens on the basis of state residence, unless the same benefit is given to all U.S. citizens without regard to residence. The California law grants in-state tuition to unlawful aliens if they attended a California high school for three years and graduated. The court said that was not a residence requirement.
The plaintiffs in Martinez also brought a claim under the Privileges or Immunities Clause, arguing that California has denigrated U.S. citizenship and placed U.S. citizens in a legally disfavored position compared to that of unlawful aliens. The court said “the fact that the clause does not protect aliens does not logically lead to the conclusion that it also prohibits states from treating unlawful aliens more favorably than nonresident citizens.” At any rate, the court found that California law did not treat U.S. students from out-of-state worse that unlawful aliens, because in-state tuition is available to all who qualify.
In 2001, California’s Office of the Secretary of Education estimated that 5,000 to 6,000 unlawful aliens would benefit from California’s law. In Martinez, plaintiffs claimed the number of unlawful aliens paying in-state tuition was over 25,000. In 2005, the Federation for American Immigration Reform estimated that the costs of providing in-state tuition to unlawful aliens costs California anywhere from 222 to 289 million dollars. See here.
Whatever the cost, the bottom line is that today's decision will force state taxpayers to continue writing the check.