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IRLI Argues Before the California Supreme Court on Behalf of United States Citizen Students


On October 5, 2010, the California Supreme Court heard oral arguments on IRLI’s challenge to the California illegal alien in-state tuition law. Kris Kobach, Senior Counsel for IRLI, assisted by IRLI Staff Attorney Garrett Roe, argued the case for the 42 United States citizen Plaintiffs currently paying out-of-state tuition costs to attend colleges and universities in California.

In 2001, California passed the State law at issue in this case, which effectively gave in-state tuition to illegal aliens who had been living in California for three years prior to being accepted for admission at a California public university or college. IRLI contends that this State law is preempted by 8 U.S.C. 1623, which prohibits States from giving postsecondary education benefits on the basis of residence (i.e. in-state tuition) to illegal aliens, unless all American citizens attending college in that State are allowed to also pay the in-state tuition rate, regardless of their residency status. Section 1623 was enacted as part of the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

However, the California law does not allow all American citizen students to pay out of state tuition. Instead, the California law only makes United States citizens who have attended high school in California for three years and graduated from a California high school eligible for the same “in-state” tuition that illegal aliens are given. The Defendants in this case argue that the California law complies with Section 1623 because the California law allows nonresident US citizens to pay in-state tuition if they attend a California high school for three years and graduate from a California high school—i.e. Congress did not intend to prevent States from giving residency benefits, but instead Congress only intended to prevent States from giving benefits “on the basis of residence.” California argues that as long as the State bases the benefit on something other than residence,” i.e. “high school attendance” or a “post office box located in California,” then California has complied with the federal law.

IRLI argues that California is thwarting Congress’s intent. Congress intended to make it practically impossible for states to give illegal aliens resident tuition benefits by requiring States to give the same resident tuition benefits that the States give to illegal aliens “in no less duration, scope, or amount” to all US citizens regardless of their State residency—essentially ending a State’s ability to charge “out-of-state tuition rates” if States give in-state tuition to illegal aliens. California’s argument that Congress was not concerned with aliens receiving benefits ignores the Congress’s intent in enacting Section 1623. IRLI contends that U.S. citizens have been overcharged by billions of dollars since 2001.

IRLI originally filed this class action lawsuit on behalf of the class representative Plaintiffs in 2005. The California Court of Appeals agreed with IRLI that the law was preempted. The defendants, all of the public higher education institutions in the state, appealed the decision. The California Supreme Court has until January 4, 2011 to issue its opinion on this case. The case is captioned Martinez et al v. Board of Regents et al, No. S16779 (Cal. 2010).


IRLI is a supporting organization of the Federation for American Immigration Reform.

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