The Lookout

California decision on illegal immigrants may influence other states

Liz Goodwin
The Lookout

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The California Supreme Court this week unanimously upheld a state law that grants in-state tuition regardless of immigration status. Could their decision send a message to anti-illegal-immigration groups who have brought challenges to similar state laws around the country?

Ten states — California, Illinois, Kansas, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah and Washington — passed laws allowing illegal immigrants to qualify for in-state tuition if they've attended high school in state for at least three years. In two of those states, illegal immigrants are also eligible for state financial aid.

[Photos: U.S.-Mexico border issues]

The California Supreme Court decision, along with the earlier failure of a similar suit in Kansas, sends a message to opponents of the provision that it will be difficult to get these state laws knocked down. The ruling also may nudge other states into the direction of adopting similar laws. (At least three states have banned the practice altogether.)

"This is a really solid decision and it clearly has a persuasive effect for any other challenges," Linton Joaquin, general counsel of the National Immigration Law Center told The Lookout. "It shows that a state can fashion a law that provides in-state tuition to people without regard to immigration status."

Kris Kobach of the Immigration Reform Law Institute, who unsuccessfully challenged the California and Kansas laws, said 25,000 students without legal status attend California colleges, costing taxpayers $200 million per year. (He also said he plans to appeal the decision.) The practice remains controversial in the states that allow it, in statehouses and on college campuses.

[Related: Number of illegal immigrants in U.S. on the decline]

A federal law passed in 1996 said states could not provide "a postsecondary education benefit to an alien not lawfully present unless any citizen or national is eligible for such benefit." Groups have used this law to file suit in Kansas, California, Texas, and New York, arguing that illegal immigrants were granted in-state tuition when residents of other states were not. The courts have batted away these challenges for the most part, arguing that they are eligible for in-state tuition in their home states, so they are not being denied the benefit.

About 65,000 undocumented students graduate from high schools every year, according to a 2007 estimate from the Urban Institute. Proponents of granting illegal immigrants in-state tuition say it's a benefit to the state to encourage them to further their education after taxpayers have already paid for K-12. Earlier this week, as it happens, the student body president at California's Fresno State University came out as an illegal immigrant after the school's student newspaper had been tipped on his immigration status.

A 1982 Supreme Court decision mandated that all children be allowed to attend K-12 public education. The court said denying illegal-immigrant children access would be punishing them for the actions of their parents and would form a permanent "underclass" of uneducated immigrants.

[Photos: Immigration reform debate]

The DREAM Act, which Sen. Harry Reid says he will bring to a vote after Thanksgiving, would repeal the language from the 1996 federal law altogether, letting states disregard immigration status in higher-ed decisions. The Act would also let youth who were brought into the country as children — many of whom do not even know they are illegal immigrants until they apply for college or a driver's license — earn legal status if they joined the military or went to college. Participating students would not be eligible for federal Pell grants but would be able to apply for state and other federal aid.

The nonpartisan Migration Policy Institute estimated this summer that about 2.1 million people would qualify for the program, but that only 825,000 would actually gain citizenship at the end of the six-year period. Not all those who qualified would be able to afford college or vocational school for the two years the program requires.

(Photo -- college students try to convince GOP Senator Scott Brown to support the DREAM Act: AP)

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