Tuition Becomes Battleground in Immigration Fight

Editor's note: AB540 is a law designed to offer the lower tuition at all three Californian state college and university systems to undocumented immigrants. It is now being challenged in the Yolo County Superior Court. Annette Fuentes is a New York journalist who writes on education and health care.

Anti-immigrant activists celebrated September 15 when the Court of Appeal in Sacramento issued its ruling in a suit challenging a California law granting in-state tuition rates to students who are undocumented immigrants. Called AB540, the law was passed by the state legislature in 2001 to offer the lower tuition to students in all three state college and university systems. The difference in dollars is substantial: for the UC system, in-state tuition is about $18,000 less; for the state universities, it's $8,000 less, and community colleges charge over $100 less per credit for the in-state rate.

The ruling by a three-judge panel doesn't settle the lawsuit, though. It merely sends the matter back to the Yolo County Superior Court, where the suit was originally filed back in 2005, for further litigation. The core issue is whether AB540 conflicts with federal law that prohibits states from granting undocumented immigrants just such educational benefits, if those benefits are based on residency.

Supporters of AB540, including the state's university systems, say they believe that the law as written does not violate that federal dictate. To qualify for the in-state tuition rate, a student must spend at least three years in, and graduate from, a California high school. "The legislature tried to fashion a set of criteria that were not based on residency," said Chris Patti, the UC attorney involved in the litigation. "It thought it had done that, and this one court of appeal disagreed."

As defendants in the lawsuit, UC, CSU and CC are weighing their legal options. Patti says UC is considering two options. "One is to file a petition for rehearing, which means asking the Court of Appeal to reconsider, or in this case clarify, what a portion of its ruling was," Patti said. "The other is to file a petition of review with the California Supreme Court." And should those options fail to protect AB540, an appeal to the U.S. Supreme Court is possible, he said.

There is more at stake here than California's law, too. Nine other states -- Illinois, Kansas, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah and Washington-have similar tuition policies at their public universities. Kansas was actually the first target for legal challenge back in 2004,when the Immigration Reform Law Institute, the legal arm of the virulently anti-immigrant Federation for American Immigration Reform (FAIR), filed suit on behalf of out-of-state student plaintiffs. The Institute's lead attorney, Kris W. Kobach, is also leading the challenge to California's law. Kobach, a law professor at the University of Missouri, has a prominent place in anti-immigrant litigation and policy. He represented Hazelton, Pennsylvania, which adopted ordinances designed by the mayor to make the town the most "hostile" place in America for undocumented immigrants.

Unfortunately for Kobach and his Hazelton clients, a federal court ruled the town's ordinances unconstitutional in 2007. That same year, Kobach also lost his challenge to Kansas' in-state tuition benefit for undocumented immigrants. But the California Court of Appeal ruling keeps this anti-immigrant effort alive.

The argument against AB540 and its analogues in other states is that U.S. citizens are cheated by having to subsidize the educations of undocumented immigrant students who are breaking the law by being here. And out-of-state students are cheated by not benefiting from the lower in-state tuition-even though they are citizens or legal residents. But as is often the case with anything related to immigrants, there is much heat and little light brought to the facts. The benefit of lower tuition under AB540 is not granted only, or even primarily, to undocumented immigrants.