Supreme Court may hear case on tuition breaks for illegal immigrants

Students in Salem, Ore., take part in a mock graduation ceremony intended to promote a bill that would let illegal immigrants pay in-state tuition at Oregon universities. (Jonathan J. Cooper, Associated Press / May 11, 2011)

By David G. Savage, Washington Bureau

May 21, 2011

Reporting from Washington—

California's policy of granting lower, in-state college tuition to illegal immigrants who graduate from its high schools is facing a challenge in U.S. Supreme Court from those who say it violates federal immigration law.

At issue is a little-known provision in a 1996 law that bars states from giving "any postsecondary benefit" to an "alien who is not lawfully present in the United States … on the basis of residence within a state."

Last year, in the first ruling of its kind, the California Supreme Court upheld the state's policy and said it did not conflict with federal law.

The justices in Washington may announce as soon as Monday whether they will hear the challenge or dismiss it. They may turn it away because there is no dispute among the lower courts. It is also possible the high court could ask the Obama administration for its view before deciding.

If the Supreme Court were to hear the case and overrule California, the decision would affect 11 other states, including New York, Texas, and, most recently, Maryland, which have opted to give in-state tuition to students who are illegal immigrants.

Twelve other states have explicitly refused to grant in-state tuition to illegal immigrants. For its part, the federal government — through the Clinton, George W. Bush and Obama administrations — has taken no steps to enforce the measure.

Citing this confusion, the Washington-based Immigration Reform Law Institute appealed the California case to the Supreme Court. Kris W. Kobach, a Kansas lawyer for the institute who led efforts in Arizona and elsewhere to tighten laws against illegal immigrants, estimated that California "spends in excess of $208 million a year subsidizing the tuition of illegal immigrants."

The federal law forbids giving "preferential treatment" to illegal immigrants "on the basis of residence" within their state. The California law, by contrast, says students may qualify for in-state tuition based on "high school attendance in California for three or more years and graduation from a California high school."

The state's lawyers argue that because the benefit turns on high school attendance, not residence, it does not violate federal law. Kobach called that a "semantic game."

The state says more than 41,000 students — less than 1% of total enrollment in its colleges and universities — qualify for lower tuition thanks to the exemption. The large majority attend community colleges, and many beneficiaries are U.S. citizens from other states. In 2009, the 10-campus UC system said 2,019 students paid in-state tuition under the terms of the state law. Of these, about 600 were believed to be illegal immigrants.

Besides California, the states that offer lower tuition for illegal immigrants are Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, Washington and Wisconsin.