AB 540 Students’ Nonresident Tuition Exemption Challenged
In an 84-page decision filed September 15, 2008, the Court of Appeal for California’s Third Appellate District reversed the trial court’s dismissal of a class action lawsuit challenging the California Education Code provision that allows certain undocumented students to pay resident tuition to attend California public universities and colleges. The ruling allows the lawsuit, Martinez v. Regents of the University of California, CV052064, to proceed in the trial court.
The suit was brought by several U.S. citizens: parents and students who lived out of state and were paying nonresident tuition for enrollment in those California public universities and colleges. Defendants include former Chancellor of the California Community Colleges, Mark Drummond.
The suit challenges Education Code Section 68130.5, added by AB 540 (Chapter 814/2001), which requires certain students without lawful immigration status to be exempted from paying nonresident tuition at the California Community Colleges and the California State University, provided they meet specified requirements including:
· High school attendance in California for three or more years
· Graduation from a California high school or attainment of the equivalent thereof
· Registration as an entering student at, or current enrollment at, an accredited institution of higher education in California not earlier than the fall semester or quarter of the 2001-02 academic year
· In the case of a person without lawful immigration status, the filing of an affidavit with the institution of higher education stating that the student has filed an application to legalize his or her immigration status, or will file an application as soon as he or she is eligible to do so
AB 540 authorized a student exempt from nonresident tuition under the bill to be reported by a community college district as a full-time student for apportionment purposes.
The provisions of the bill were made applicable to the University of California only if the Regents of the University of California acted to make them applicable.
Although numerous legal issues were raised in ten counts, the most significant issue was deemed to be:
. . . whether California’s authorization of in-state tuition to illegal aliens violates a federal law, Title 8 of the United States Code (U.S.C.) Section 1623, which provides as pertinent:
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.
Note that the Court of Appeal explains its use of the term “illegal alien” in a footnote to its opinion. We prefer the term “undocumented immigrant.”
The Court concluded that Education Code Section 68130.5 does, and was intended to, benefit “illegal aliens” on the basis of residence in California, and that Section 68130.5 is preempted by Title 8 U.S.C. Section 1623. Indicating that the “wording of the California statute, requiring attendance at a California high school for three or more years, creates a de facto residence requirement” the Court continued, “Since California does not afford the same benefit to U.S. citizens from other states “without regard to” California residence, section 68130.5 conflicts with Title 8 U.S.C. Section 1623.”
The Court also found that plaintiffs had stated a cause of action that Education Code Section 68130.5 is preempted by another federal law, Title 8 U.S.C. Section 1621. The latter Section provides in relevant part:
(d) A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after [August 22, 1996], which affirmatively provides for such eligibility.
The court wrote:
We conclude the conference report supports plaintiffs’ position that not only must the state law specify that illegal aliens are eligible, but the state Legislature must also expressly reference title 8 U.S.C. section 1621 (which was not done in the case of section 68130.5). Thus, while we do not hold that title 8 U.S.C. section 1621 requires the state statute to use the words “illegal aliens,” we conclude the language of section 68130.5 does not clearly put the public on notice that tax dollars are being used to benefit illegal aliens.
The Los Angeles Times reported that Cynthia Valenzuela, Director of Litigation for the Mexican American Legal Defense and Educational Fund (MALDEF), “had received numerous calls from worried students, but she pointed out that California's law remains in effect.”
The decision by the Court of Appeal was announced as the California Legislature prepares to send the Governor a bill, SB 1301 (Cedillo, D-Los Angeles), that would expand on AB 540. The new bill would require the Trustees of the California State University and the Board of Governors of the California Community Colleges, and request the Regents of the University of California, to establish procedures and forms that enable persons who are exempt from paying nonresident tuition pursuant to AB 540, or who meet equivalent requirements adopted by the Regents, to be eligible to receive institutional financial aid awards.
Given the slow pace of the court system, it may be quite a while before the legality of California’s law is finally determined. Defendants may decide to appeal the September 15 decision to the California Supreme Court. Even if the case goes back to the trial court now, the trial court calendar will undoubtedly preclude a quick resolution of the issues. Stay tuned . . .
—Deborah Harmon