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In-state tuition for illegal immigrants survives, Supreme Court declines case

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A state judge dismissed the suit, but a California appeals court ruled that the state provision was preempted by the federal immigration law.

The California Supreme Court reversed that decision, ruling that the state law did not confer a benefit on illegal immigrants based on their residence in California.

The state law based the preferential tuition award on criteria other than the student’s state of residence, the state high court said. The in-state tuition is granted on the basis of attendance at and graduation from a California high school. Although most graduates from California schools do, in fact, reside in California, the high court reasoned that not all graduates are residents.

Minor children of out-of-state parents who attend boarding schools in California qualify for resident tuition rates. So do students who live in an adjoining state or country and attend high school in California.

The state supreme court said if Congress intended to impose a ban on illegal immigrants receiving in-state tuition it could have done so. Instead, Congress restricted only the use of residence as a criterion, the court said, but it did not bar states from identifying other criteria to award the in-state discounts.

In urging the US Supreme Court to take up the case, Kris Kobach, a lawyer for the students, said the congressional measure is aimed at blocking the provision of benefits to illegal immigrants. He said Congress wanted to reduce any incentive for undocumented immigrants to enter or remain in the country unlawfully.

“Congress was concerned about states offering illegal aliens a particular benefit – resident tuition rates or the functional equivalent,” he wrote in his brief. “California spends in excess of $208 million each year subsidizing the tuition of illegal aliens under the [California law],” he said.

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