In sanitizing the original LA Times article, all references to "illegal" immigrant were replaced with the politically correct "undocumented" immigrant. Also missing from the article were many of the very poignant statements by the plaintiffs, such as:
- "U.S. citizens should have at least the same rights as undocumented immigrants," said one of the plaintiffs, Aaron Dallek, an Illinois native who graduated from UC Berkeley in 2006.
- Another plaintiff, 2006 UC Davis graduate Onson Luong, said he didn't think it was fair that he, as a native of Nevada, had to pay higher tuition than illegal immigrants.
- Michael Brady, who represents the out-of-state students and their parents in the case, said California is "completely undermining the intent of Congress" and that the state law should be invalidated because it violates federal immigration law. . .
As the Utah Attorney General’s office opined in a 2002 letter to the University of Utah: "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." . . .
Utah passed Instate Tuition predicated on the passage of the proposed so-called Dream Act, which would have allowed States the option to offer reduced tuition to illegal aliens. Click here to listen to the actual floor debates in 2002.
When posted in the Utah Office of Education regulations (R513-13) the phrase "If allowed under Federal law," was omitted. The Dream Act has never been passed.
The Utah AG letter went on to say: "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."
A California Appeals Court (Martinez v. Regents of U.C. 9/15/08 CA3) has now issued an opinion: "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."
That appellate court decreed that all US Citizens paying non resident tuition would be eligible for reimbursement for the excess payment above the resident rate. The potential to the taxpayers of Utah for such a decision in voiding the Utah instate tuition could easily be in the $10's, or even $100's, of millions.
Additionally, upon graduation, the undocumented immigrant graduate can still not LEGALLY obtain employment in the United States.
In addition to being in violation of the federal law on tuition, allowing that reduction also appears to violate federal law declaring it illegal to aid, abet or "encourage or induces an alien to come to, enter, or reside in the United States, knowing . . . that such . . . residence is or will be in violation of law;" US Code Title 8, sec 1324 .
Instate Tuition for illegal immigrants should be repealed by the Utah legislature - this year - to comply with federal law, avoid huge potential costs and be fair to US citizens, regardless of what the California Supreme Court decides.