This is the AG opinion on the subject (bold added):
October 9, 2002
University of Utah
201 South Presidents Circle, Room 203
Salt Lake City, Utah 84112
Re: Eligibility for In State Tuition
Dear President Machen:
This letter is in response to your inquiry concerning the validity and current applicability of Utah’s statute allowing students (except specifically defined nonimmigrant aliens under federal law) to pay only resident tuition at a Utah institute of higher education if they have attended a Utah high school for three or more years and received a high school diploma or its equivalent.
Based on the following analysis, I conclude that the Utah statute is valid and is currently enforceable.
The Utah statute in question, Utah Code Ann. § 53B-8-106, provides:
(1) If allowed under federal law, a student, other than a nonimmigrant alien within the meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States Code, shall be exempt from paying the nonresident portion of total tuition if the student:
(a) attended high school in this state for three or more years;
(b) graduated from a high school in this state or received the equivalent of a high school diploma in this state; and
(c) registers as an entering student at an institution of higher education not earlier than the fall of the 2002-03 academic year.
(2) In addition to the requirements under Subsection (1), a student without lawful immigration status shall file an affidavit with the institution of higher education stating that the student has filed an application to legalize his immigration status, or will file an application as soon as he is eligible to do so.
This Utah statute provides, by its own terms, that it is only operational “[i]f allowed under federal law”. Federal law places limitations on a state allowing higher educational benefits to aliens who are not lawfully present in the United States unless the same benefits would be available to any other individuals in the United States regardless of whether they are residents of Utah. 8 U.S.C. Section 1623 provides:
Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.
The Utah statutory criteria for being exempt from the nonresident portion of tuition, namely (a) attending a Utah high school for three or more years and (b) receiving a high school diploma or a equivalent, can be met by “a citizen or national of the United States” regardless of whether he or she is a resident of Utah. Utah’s Public Education Code provides that students who reside in one school district may, to the extent reasonably feasible, attend school in another school district (Utah Code Ann. § 53A-2-207). Likewise, a school district may permit a child residing outside of the state to attend school within the district on the payment of tuition at least equal to the per capita cost of the school program in which the child enrolls, though the tuition may be waived by the school board (Utah Code Ann. § 53A-2-205). In general, a child’s residence for purposes of obtaining a free public education in Utah is based on whether the child resides in the district, apparently without regard to citizenship or immigrant status (Utah Code Ann. § 53A-2-201). This is the case even if the child is not living with its parents but with a responsible adult designated by affidavit by the child’s parents as a legal guardian.
Therefore, there appear to be a number of options available to a child and its parents to allow the child to attend and graduate from a Utah high school regardless of citizenship, state of residence, or immigrant status. Based on this flexibility in Utah law relative to high school attendance and graduation, the federal prohibition against postsecondary education benefits for an illegal alien appear not to apply because the same opportunities are equally available to citizens or lawful residents of any other state. Utah law allowing Utah high school graduates to pay resident tuition does not appear to violate either the letter or spirit of the federal limitation and appears valid. Thus, this education benefit appears “allowed under federal law” and is valid and enforceable.
We have not found applicable judicial opinions interpreting 8 U.S.C. Section 1623, so there is always the possibility that a different or more strict interpretation might be applied by the courts, but on its face, at this preliminary juncture, we are of the opinion that it does not override Utah’s tuition statute.
WILLIAM T. EVANS
Assistant Attorney General
Chief, Education Division
Note: This appears to be a rather convoluted argument saying that: we have created a residency requirement specifically for "a student without lawful immigration status" to be eligible for instate tuition, all nonresident US citizens must meet that requirement, even though the federal law says "without regard to whether the (nonresident) citizen or national is such a resident," because we have residency requirements for High School. If, and when, a court case arises from a nonresident paying nonresident tuition, I hope, for the taxpayers of Utah that they are right.
The requirement to educate illegal alien children in K-12 was decreed under Plyler v Texas, 1985, and has no requirement basis in higher education.
US Code Title 8, Section 1623.
Limitation on eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education benefits (a) In general
Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident. http://assembler.law.cornell.edu/uscode/html/uscode08/usc_sec_08_00001623----000-.html