California Court of Appeals has weighed in with a decision on illegal aliens and In-state Tuition, declaring it unconstitutional:
A three judge panel of the California Court of Appeals unanimously ruled Monday that a California law intended to permit illegal aliens to attend public colleges and universities at in-state tuition rates is unconstitutional because it conflicts with federal law, and violates both the equal protection clause and privileges and immunity clause of the constitution. Ruling in the case of Martinez et al. v. Regents of the University of California, brought by the Immigration Reform Law Institute (IRLI) on behalf of some 80,000 nonresident American students who were denied in-state tuition benefits, the Appeals Court agreed that California policy violates expressed provisions of both the Immigration Act and the Welfare Reform Act of 1996.
The 1996 Immigration Act states that "an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State...for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit..." In their ruling, the judges concluded that a California law that recognizes illegal aliens as residents for the purpose of attending public colleges and universities at taxpayer subsidized tuition rates, "does, and was intended to, benefit illegal aliens" - a benefit that the state fails to provide to U.S. citizens from other states. The court also granted injunctive relief to nonresident American students, meaning that they must be permitted to pay in-state tuition. Students who have already paid out-of-state tuition rates must be reimbursed."
This decision should be a call to action in Utah to repeal in-state tuition for illegals. Obviously court cases may continue, but the salient point in this decision is that some in the Utah government have used the original court decision (no standing) as a reason to allow continuing the Utah illegal alien in-state law.
This case is based on virtually the same scenario as Utah's situation, and the California Court ruled on the RESIDENCY issue. A letter to U of U from the AG's office opines:
"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." . . .
"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."
It appears that opinion has now been offered - Martinez v. Regents of U.C. 9/15/08 CA3 :
"2. Respondents argue in-state tuition is not granted "on the basis of residence within a state" as required by federal law. Respondents point to the fact that in-state tuition for illegal aliens is based on a student’s having attended a California high school for three or more years and on the student’s having graduated from a California high school or having attained "the equivalent thereof." (§ 68130.5, fn. 1 ante.) As we shall explain, the three-year attendance requirement at a California high school is a surrogate residence requirement. The vast majority of students who attend a California high school for three years are residents of the state of California. Section 68130.5 thwarts the will of Congress manifest in title 8 U.S.C. section 1623.
We shall conclude the trial court erred in determining the complaint failed as a matter of law. We shall reverse the judgment of dismissal and allow the case to proceed in the trial court."
As has been testified many times before Utah legislative committees, there is a huge POTENTIAL liability to the taxpayers of Utah in continuing this action - Instate Tuition for illegal aliens should be repealed as soon as possible. The estimated liability to Utah may be in the $100's of millions.