Sparked by a former California congressman who felt victimized, a class-action lawsuit was filed Wednesday in Yolo County challenging a state law that allows undocumented immigrants to pay resident tuition fees at public colleges.
The actual problem behind this lawsuit is that illegal immigrants can pay resident tuition fees while out-of-state students, genuine red-blooded American citizens, pay out-of-state tuition, which is significantly higher.
Here again, we're asking the courts to play the role of the legislature. I'll grant that out-of-staters can have a legitimate beef about having to pay a higher tuition than someone who lives in the state illegally, but is it against the law for the legislature to create this situation? Yes, it's against federal law for the people to be here, but must it be against state law for them to go to school, or to pay in-state tuition?
Suits against the state shouldn't be for issues that are unfair, they should be for issues that are unlawful. Some things that are unfair are also unlawful, violating equal protection laws or due process or First Amendment rights, etc. But I doubt that in-state and out-of-state tuition is an unlawful concept, and since the legislature created it, shouldn't the legislature be able to identify who pays one amount and who pays another?
I'm counting on my readers to help me make up my mind on this, but I'm actually leaning towards the legislature on this one. This is an area that is clearly in the legal realm of the legislature to direct, and it has done so. Is there a legal argument here, or just a fairness argument? If it's just fairness, I'm sticking with the current law.
Here via Discriminations. Yes, actually, it's against Federal law (since 1996) to grant benefits to people illegally in the country on the basis of state residency that would not be granted to any US citizen. The gist of the legal argument is that UC could give its current "in-state" fee package to undocumented students in CA, but only if it did the same for out-of-state US citizens. The difference being something like $18K per student, it's non-trivial.
ReplyDeleteThe UC's argument appears to be that they aren't challenging the Federal law, but that their own tuition arrangements don't have anything to do with "California residence." You don't have to be a California resident to be eligible for what was once called in-state tuition; you just have to have been graduated from a CA high school and previously have spent three years in it. Any resemblance of this to a "residency requirement" is the merest coincidence. (And any incidental impact on CA homeschoolers, ditto.)
UC's own website does refer to "California residency," but that's the sort of slip of the finger anyone'd make. Right?
If this is true, it would seem to be a slam dunk. Why wouldn't UC cave, given the fact that they'd have perfect cover for doing so in that they'd merely be following federal law?
ReplyDeleteGranted, they've tried everything and the kitchen sink to get around Prop 209.