November 16, 2010 / 4:31 AM / 9 years ago

Calif. court upholds in-state tuition for illegals

LOS ANGELES (Reuters) - The California Supreme Court upheld a state law on Monday allowing illegal immigrants who attend high school in California for three years and graduate to pay lower in-state tuition rates at state colleges and universities.

The unanimous ruling reverses a lower-court decision siding with opponents of the law who said it unfairly favors illegal immigrants over U.S. citizens who live outside California and are charged much higher out-of-state tuition rates.

The measure, passed by the state legislature in 2001, was challenged in court on behalf of students who are U.S. citizens and claimed they were illegally denied the in-state tuition break carved out for undocumented students.

Nine other states have adopted similar tuition laws, and legal challenges are pending in two of them — Nebraska and Texas, lawyers for both sides in the California case said.

Kris Kobach, attorney for the Immigration Reform Law Institute, which brought the California suit, said Monday’s decision was “flawed in numerous ways” and vowed to appeal to the U.S. Supreme Court.

Kobach, whose group estimates more than 25,000 illegal immigrants pay in-state tuition each year under California’s statute, said there was a good chance his side would prevail if the nation’s high court agreed to hear the case.

But Ethan Schulman, a lawyer for the University of California (UC) Board of Regents, said the likelihood of the U.S. Supreme Court granting review was “quite low.”

The case revolves to some extent around definitions of legal residency in California.

A California state trial judge initially dismissed the case. But an appellate court ruled in 2008 that the tuition allowance violated a 1996 federal statute barring any state from offering illegal immigrants higher-education benefits based on residency unless U.S. citizens were eligible for the same benefit.

The state Supreme Court disagreed. It found that the eligibility requirements for the in-state tuition allowance — primarily three years of attendance at a high school in California — were not based on formal legal residency and thus did not violate federal immigration law.

Schulman said the law also benefits California boarding school students who are U.S. citizens but technically not state residents because their parents live elsewhere, as well as students who attend California high school for three years, take time off after graduation, then apply to a state college or university after moving out of state.

“The great majority of (UC) students who qualify for this exemption are not illegal immigrants,” Schulman said. “They are U.S. citizens and residents of other states, and that’s been true since this 2002 when this law went into effect for the UC system.”

The state tuition law “was crafted to comply with federal law that the other side said it violated, and the Supreme Court said it was successful,” Schulman said.

Schulman suggested that opponents have exaggerated how many illegal immigrants are granted the break from nonresident tuition and allowed to pay in-state rates. But he acknowledged that the number runs in the thousands each year.

Reporting by Steve Gorman and Dan Whitcomb; Editing by Jerry Norton and Peter Bohan

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