In-state fees for the undocumented

California law survives Supreme Court appeal
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When David and Carlos walk at UCLA’s graduation this Friday, they’ll be thanking their parents, their professors, and AB 540 – the 2001 law that lets some undocumented students pay in-state fees at California’s public colleges. On Monday, more than five years after the first lob in a legal challenge to the California law, the U.S. Supreme Court issued the final two words upholding AB 540: Petition Denied. With that, the high court refused to hear an appeal of last November’s California Supreme Court ruling in support of the law.

“If it wasn’t for AB 540 I would not have had an education,” said Carlos, whose parents brought the family to California from Mexico City when he was 14 years old. David agrees. He arrived from South Korea at the age of nine. “I think the [U.S.] Supreme Court is realizing that we’re just students who want access to higher education and that education is a right for all students regardless of their immigration status.”

It may seem a bit confounding that two generally conservative benches the U.S and California Supreme Courts – both upheld a law giving a financial break to students here illegally. “It’s hard to read anything into it,” said Ethan Schulman, a lawyer for the University of California. But since the State Supreme Court ruling was so well reasoned and was a unanimous decision, Schulman expected this decision. “No, we weren’t surprised,” he said, “but obviously we’re very pleased.”

“Illegal alien tuition Scheme”

Opponents charged that AB 540 was nothing more than an end-run around federal immigration law, which prohibits states from providing any benefits to “an alien who is not lawfully present in the United States” unless the same benefit is given to all U.S. citizens. They called it an “illegal alien tuition scheme.”

The state Supreme Court rejected that argument, noting that the exemption is available to anyone who meets the eligibility criteria. That would include a student from another state who attended a boarding school in California, or someone who left the state after high school to work or enlist in the military for several years and later returned to California for college.

“Because the exemption is given to all who have attended high school in California for at least three years (and meet the other requirements),” wrote the state court, “we conclude the exemption is not based on residence in California. Rather, it is based on other criteria.”

Cost versus benefit

Another key argument against AB 540, especially during these difficult budget times, is the cost. Out-of-state students attending the University of California pay nearly $23,000 a year on top of the regular fees of about $11,300 a year. At California State University, residents pay about $4230 a year, while out-of-state students pay an additional $372 for each credit.

But UC and CSU officials say most AB 540 students are U.S. citizens. Of nearly 1,600 students granted tuition exemptions at UC, more than 1,000 are U.S. citizens, according to the University’s annual report on AB 540 exemptions. Almost every one of the 425 graduate students under AB 540 is a citizen.

David will be one of the few undocumented graduate students when he begins his master’s program in the fall. Carlos earns his MSW later this week. Even though it took him several years longer to get through college, Carlos considers himself one of the lucky ones because he was in tenth grade when he came to California. Just a year later and he would have missed one of the eligibility requirements of AB 540: spending at least three years in a California high school. He recently got married and hopes to be on the path to citizenship very soon so he can start work. “My education was a good investment by California taxpayers,” said Carlos. “I’ll be able to put it to use very soon.”

Eleven other states have similar laws – Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, Washington, and Wisconsin – and Connecticut is expected to join them shortly. But, like California, some of them face challenges. Maryland’s governor just signed the state’s bill last month and it’s already facing a petition drive to block it from taking effect, and the Nebraska and Texas laws have been challenged in court.

UC attorney Schulman says those cases may be helped by Monday’s decision. “Although the California Supreme Court decision is not binding on those courts, I think it’s possible they’ll look to it for guidance.”

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