Lower Tuition for Illegals Safe for Now

Possibly because it is saving its fire for review of the Arizona immigration law, the Supreme Court has passed up a chance to rule on the legality of lower in-state college tuition for illegal immigrants, a policy now in 11 states. Federal law prohibits granting in-state tuition to illegal immigrants at publically financed state institutions, unless the same benefit is available to United States citizens. The law (Title 8 Section 1623 of the United States Code) reads as follows: “Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”

That seems clear enough. It is also clear that federal law pre-empts state law, a fact of which the California Legislature was well aware when it set about to circumvent federal law and advance its own immigration policy at taxpayer expense. The trick the legislators used was to avoid the residency criterion for exemption from non-resident tuition, and to require instead graduation from a California high school after three years attendance. Never mind that for illegal aliens to attend and graduate from a California high school they have to reside illegally in California for that period. On the basis of simple logic, therefore, the California law is clearly out of compliance with federal law.

A group of out-of-state students sued, charging that the California statute violated federal law, and that it discriminates against United States citizens. The lower court ruled against the plaintiffs but an appeals court, in a carefully reasoned review of all the points made by the plaintiffs, found in their favour. The case went forward to the California Supreme Court which, in their own words, declared that the California law “is not impliedly pre-empted by federal law, and does not violate the privileges and immunities clause of the Fourteenth Amendment of the United States Constitution.”  The reason they gave for this finding was the Legislature’s substitution of the requirement of graduation from a California high school after three years residence in California attending that school, and not on the criterion of residency. The attorneys for the plaintiff described this ploy as the creation “of an exception that swallowed the rule.” This ruling also reveals the kind of contortions that have given lawyers their traditionally bad name, illustrating once again how ideological consideration or sentiment can reshape a law in spite of the clear meaning of its text and its statutory intent.

Attorneys for the plaintiffs appealed to the United States Supreme Court pursuing the same arguments that the appeals judge had found valid, together with a warning that if the ruling of the California high court were “allowed to stand” it would permit a state to ignore the manifest intent of Congress and render an act of Congress “a dead letter.” Several members of Congress and the Washington Legal Foundation joined the plaintiffs in a friend of the court brief arguing that the California Supreme Court is simply wrong. “Its interpretation” said the brief “attributes to Congress an intent to permit states to routinely evade congressional restrictions on the provisions of postsecondary education benefits. Nothing in either the text or the legislative history of 1623 supports such a conclusion that Congress intended such a toothless law.” The plaintiffs also cited conflicts between the California ruling, and court precedents, among them a conflict with the US District Court for the Eastern District of Virginia which warranted Supreme Court resolution. The US high court, however, with no comment, refused to hear the case, leaving in place a costly and discriminatory law, passed by slight of hand that both reverses precedents and renders a federal statute inoperable.

Cost is indeed a consideration in a failing economy and in a state with a $15 billion dollar budget shortfall and no hope of the kind of bailout that Greece has received from the EU. Attorneys for the plaintiffs say that California spends $200 million each year subsidizing students who are illegally in the state at a time when cutbacks in higher education mean higher tuitions for legal in-state residents, and reductions of instruction and services. Moreover, California is preparing to release 40,000 prison inmates due to shortages of funds needed to ease overcrowding in the state’s correctional system. In this respect Victor Davis Hanson of the Hoover Institution, and former professor of Classics in the California State University system, said “Highly taxed Californians can borrow money to send illegal aliens to school but not to keep felons in prison.” This is yet another case where the single minded pursuance of ideology, opposed by most of the people who have to pay for it through taxation, is damaging, not helping the cause of higher education and those who benefit from it.

Glynn Custred

Glynn Custred is a professor of anthropology emeritus at Cal State, East Bay.

One thought on “Lower Tuition for Illegals Safe for Now”

  1. I am sympathetic, on states rights grounds, to California’s attempt to control its own tuition system. On the other hand, Congress may fix this easily. Simply remove the phrase “on the basis of residence within a State (or a political subdivision)” so that the statute shall now read:
    “Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”
    Surely proponents can get Congress to pass this simple change.

Leave a Reply

Your email address will not be published.