schools.jpgThe California Supreme Court today upheld a state law that allows an estimated 25,000 undocumented immigrants who attended high school in California to pay lower in-state fees instead of heftier nonresident tuition at public colleges.

The court in San Francisco unanimously rejected a lawsuit in which out-of-state students claimed the 2001 state statute violated a federal immigration reform law that restricts college education benefits for undocumented immigrants.

Justice Ming Chin wrote that the federal law “does not govern this case.”

Chin said that while the Legislature may have intended to circumvent the 1996 federal law, “The mere desire to avoid the restrictions provides no basis to overturn the legislation.”

The out-of-state tuition fees make a substantial difference in the cost of education at the University of California, state universities and community colleges.

In the state university system this fall, for instance, out-of-state tuition was $372 per semester unit, in addition to a $2,115-per-semester education fee charged to all students.

At the University of California at Berkeley, out-of-state undergraduates paid $11,011 in tuition for the fall semester, on top of about $6,000 in education fees paid by both residents and nonresidents.

The state law, known as A.B. 540, exempts students who have attended at least three years of high school in California from paying out-of-state tuition fees at the three public college systems.

Undocumented immigrants can qualify for the exemption if they file a sworn statement saying they have applied for legal immigration status or plan to do so. Undocumented students who did not attend a California high school must pay out-of-state tuition.

The federal law, meanwhile, bars states from giving undocumented immigrants breaks on college costs on the basis of in-state residence unless all U.S. citizens in the country are given the same benefit.

Forty-two out-of-state students who challenged the state law in Yolo County Superior Court in 2005 claimed it essentially gave undocumented immigrants an illegal benefit based on their residence.

But Chin, writing for the court, said the exemption for California high school attendance was not the same as an exemption based on residence.

The court noted that not all undocumented California residents can receive the tuition exemption because those who did not attend a California high school are not eligible.

And some students who obtain the exemption are not immigrants, but rather U.S. citizens who attended high school in California and later moved away, the court said.
The language of the federal law “compels us to conclude that it does not prohibit what the Legislature did in enacting” the state law, Chin wrote.

Kris Kobach, a lawyer with the Washington, D.C.-based Immigration Reform Law Institute, said the out-of-state students will appeal to the U.S. Supreme Court.

“The California Supreme Court opinion is a weak one that twists the meaning of a federal statute so that it means the opposite of what Congress intended,” Kobach said.

Representatives of the state universities and colleges praised the ruling.

“Through their hard work and perseverance, these students have earned the opportunity to attend UC,” UC President Mark Yudof said. “Their accomplishments should not be disregarded or their futures jeopardized.”

CSU general counsel Christine Helwick said, “The California State University continues to advocate that racially and ethnically inclusive colleges and universities better prepare students for the diverse workplace of the future.”

Lee Gelernt, deputy director of the ACLU Immigrants’ Rights Project, said, “This law provides a lifeline for hard-working students, many of whom were brought to this country based on the choices of their parents and have grown up in low-income households.”
The ACLU filed a friend-of-the-court brief in the case.

Chin wrote at the start of the ruling that the court had received many briefs making policy arguments before and against the law but said the panel based its decision on legal principles, not policy.

“We have received arguments that (A.B. 540) affords deserving students educational opportunities that would not otherwise be available and conversely, that it flouts the will of Congress, wastes taxpayers’ money and encourages illegal immigration.

“But this court does not make policy,” Chin said.

Kobach said his organization compiled statistics from the three California college systems showing that more than 25,000 undocumented immigrants obtained the exemption in 2008-2009.

The number included 430 undocumented students at UC, 10,000 at CSU and 15,000 at community colleges, he said. If they had paid out-of-state tuition, the amount would have been $208 million, Kobach said.

Yudof said the undocumented students who received the exemption at UC in 2008-2009 were a little more than 20 percent of the 2,019 students who were given the tuition break that year because of California high school attendance.

The others were out-of-state students who were U.S. citizens or legal U.S. residents, he said.

Julia Cheever, Bay City News

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