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Day v. Bond


This was the first case in the nation to challenge state laws and regulations that grant illegal aliens in-state tuition in defiance of federal law despite enactment of the prohibition of such grants in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

In 2004, Kansas passed House Bill (HB) 2145, codified as Kan. Stat. Ann. § 76-731a, which gave in-state tuition to illegal aliens based on graduation from a Kansas secondary school. IRLI retained Kris Kobach, then a law professor at the U. of Missouri Kansas City, as lead counsel. IRLI represented a group of U.S. non-resident students and their parents who were assessed non-resident tuition by the Kansas higher education system.

The students claimed that K.S.A. 76-731a conflicts with federal regulations and statutes, and was thus preempted by the Supremacy Clause of the United States Constitution. The students also argued that the law violated their rights under the Equal Protection Clause of the U.S. Constitution. The students sought relief pursuant to 8 U.S.C. § 1623, which prohibits any state from providing “any postsecondary educational benefit” to aliens not lawfully present in the United States unless any “citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope).”

Each plaintiff alleged financial injury in the form of excess tuition and fees paid at non-resident rates during the period that illegal aliens not lawfully present in the United States were afforded resident rates under the direction of the defendants. The defendants conceded that during the 2004-2005 academic year, numerous illegal aliens attending Kansas postsecondary educational institutions availed themselves of the in-state tuition rates made available to them under the law.

In February 2005, IRLI obtained an important preliminary ruling denying anonymous illegal alien intervenors a protective order against revealing their identities in the Kansas in-state tuition case. “The anonymous intervenors have alleged a general fear of stigma and retaliation if their identities are disclosed. However, as noted above, the record simply does not support the relief that they have requested. That is, the court finds that the vague, conclusory allegations by the Doe parties do not support the entry of a protective order. The anonymous intervenors claim that they are afraid of risking deportation but, according to the representations set forth in their motion to intervene, these students already have sworn out affidavits attesting that they are taking all necessary steps to obtain legal citizenship…. The court declines to adopt in effect what would be a general rule protecting illegal immigration status of non-party family members. Nor does the court believe that the circumstances of the instant case merit any special consideration for those family members.” 227 F.R.D. 668, 24 (D. Kan 2005).

Oral argument was held on May 10, 2005 in the same federal district court where the famous Brown v. Board of Education suit began. The district court dismissed the case based on standing on July 7, 2005. The district court held that the students were required to establish a private right of action to bring their preemption claim under 8 U.S.C. § 1623, that no such private right of action exists, and that the students lacked standing to bring their claim under the Equal Protection Clause.

On appeal to the U.S. Court of Appeals for the Tenth Circuit, the students argued that 8 U.S.C. § 1623 uses rights-creating language evincing congressional intent to create a private right of action. The focus of the statutory text and the use of terms of entitlement also supported such intent, which was further validated by the congressional legislative record, and the phrasing of the statute, which does not use prohibitory terms, must be interpreted to support the existence of a private right of action pursuant to Cannon v. University of Chicago, 441 U.S. 677, 690-93 (1979). The students also asserted that the district court erred by concluding that the students lacked standing to bring a separate claim under the Equal Protection Clause by refusing to follow Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 663 (1993), in which the Supreme Court held that it is not necessary for a party bringing an Equal Protection claim to show that it would have received the sought-after benefit if the challenged law were not in place.

On August 30, 2007 the Tenth Circuit affirmed the district court decision, addressing only the standing issues. Day v. Bond, 500 F.3d 1127 (10th Cir. 2007). The opinion held that the students had not “demonstrated that they suffered a concrete and non-speculative injury based on the discriminatory treatment provided by § 76-731a,” and could not “show that their asserted injury was proximately caused by § 76-731a, nor that any injury could be redressed by a decision in their favor.”

IRLI petitioned the U.S. Supreme Court for a writ of certiorari in March 2008. The IRLI petition argued that the Tenth Circuit had constrained the standing requirement so severely that no-one could show standing to bring a preemption claim under 8 U.S.C. § 1623. “As a result, state statutes that provide in-state tuition to illegal aliens in plain violation of federal law will be allowed to go unchallenged, and this modern-day nullification movement will likely continue with impunity. This merger of standing and private-right-of-action requirements conflicts with the holdings of the Second, Fifth, and Ninth Circuits” and “creates a circuit split where none existed before.” IRLI’s petition was denied on June 23, 2008.


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