Challenge to AB540 Threatens More Than Undocumented Students

New America Media, Commentary, Annette Fuentes Posted: Sep 24, 2008

Editor’s note: AB540 is a law designed to offer the lower tuition at all three Californian state college and university systems to undocumented immigrants. It is now being challenged in the Yolo County Superior Court. Annette Fuentes is a New York journalist who writes on education and healthcare.

Anti-immigrant activists celebrated September 15 when the Court of Appeal in Sacramento issued its ruling in a suit challenging a California law granting in-state tuition rates to students who are undocumented immigrants. Called AB540, the law was passed by the state legislature in 2001 to offer the lower tuition to students in all three state college and university systems. The difference in dollars is substantial: for the UC system, in-state tuition is about $18,000 less; for the state universities, it's $8,000 less, and community colleges charge over $100 less per credit for the in-state rate.

The ruling by a three-judge panel doesn't settle the lawsuit, though. It merely sends the matter back to the Yolo County Superior Court, where the suit was originally filed back in 2005, for further litigation. The core issue is whether AB540 conflicts with federal law that prohibits states from granting undocumented immigrants just such educational benefits, if those benefits are based on residency.

Supporters of AB540, including the state's university systems, say they believe that the law as written does not violate that federal dictate. To qualify for the in-state tuition rate, a student must spend at least three years in, and graduate from, a California high school. "The legislature tried to fashion a set of criteria that were not based on residency," said Chris Patti, the UC attorney involved in the litigation. "It thought it had done that, and this one court of appeal disagreed."

As defendants in the lawsuit, UC, CSU and CC are weighing their legal options. Patti says UC is considering two options. "One is to file a petition for rehearing, which means asking the Court of Appeal to reconsider, or in this case clarify, what a portion of its ruling was," Patti said. "The other is to file a petition of review with the California Supreme Court." And should those options fail to protect AB540, an appeal to the U.S. Supreme Court is possible, he said.

There is more at stake here than California's law, too. Nine other states--Illinois, Kansas, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah and Washington–have similar tuition policies at their public universities. Kansas was actually the first target for legal challenge back in 2004,when the Immigration Reform Law Institute, the legal arm of the virulently anti-immigrant Federation for American Immigration Reform (FAIR), filed suit on behalf of out-of-state student plaintiffs. The Institute's lead attorney, Kris W. Kobach, is also leading the challenge to California's law. Kobach, a law professor at the University of Missouri, has a prominent place in anti-immigrant litigation and policy. He represented Hazelton, Pennsylvania, which adopted ordinances designed by the mayor to make the town the most "hostile" place in America for undocumented immigrants.

Unfortunately for Kobach and his Hazelton clients, a federal court ruled the town's ordinances unconstitutional in 2007. That same year, Kobach also lost his challenge to Kansas' in-state tuition benefit for undocumented immigrants. But the California Court of Appeal ruling keeps this anti-immigrant effort alive.

The argument against AB540 and its analogues in other states is that U.S. citizens are cheated by having to subsidize the educations of undocumented immigrant students who are breaking the law by being here. And out-of-state students are cheated by not benefiting from the lower in-state tuition–even though they are citizens or legal residents. But as is often the case with anything related to immigrants, there is much heat and little light brought to the facts. The benefit of lower tuition under AB540 is not granted only, or even primarily, to undocumented immigrants.

Eligibility extends to students who may have moved out of California after graduating high school as well as to immigrants who have legal residency. The precise number of undocumented students receiving the in-state rate is not known but it isn't very high. In the UC system, 1,639 students were eligible for in-state tuition rates under AB540 in the 2006-2007 school year, according to UC spokesman Ricardo Vasquez. Of those, 1,200 students were permanent residents or citizens. The CSU system doesn't collect data on the legal status of students who are eligible for AB540, according to a spokeswoman, and doesn't know how many might be undocumented. But she said an "educated guess" would put the total at about twice what the UC system has.

Of course, for those who believe that undocumented immigrants don't contribute but only drain resources from this country, even one student benefiting from AB540 would be too many. It is ideology over rationality. If rationality prevailed, the clear advantages to society in making higher education as affordable as possible to anyone motivated to achieve would win the day. But for now, it will be up to the legal defenders of rational educational and immigrant policy to continue the fight in court.

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