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State Legislatures Cautiously Consider In-state Rates for Undocumented Students

Maryland lawmakers take cues from California legal battles to craft a tuition policy for undocumented immigrants.

When the ­University of Maryland System pondered offering in-state tuition to undocumented students, chancellor William E. Kirwan looked to California — among the early states to pass such a law — for a model.

That changed last fall, when a California appellate court ruled the law conflicts with federal law. The California Supreme Court agreed to review that decision in arguments expected to be heard late this year or next year.

Meanwhile, undocumented students in California continue to receive in-state tuition.

But states like Maryland now are avoiding that model as it sits in legal limbo in California.

“We thought maybe what was happening in California did work for us. If a student were to graduate from a Maryland high school after going for three years and was an unregistered immigrant, we would grant them in-state tuition,” Kirwan tells Diverse. “But what seems to have happened in California is to say, ‘Well, you can’t use that to get around this’ — at least that’s what the appeals court in California says.”

California lawmakers approved Assembly Bill 540 in 2001, soon after Texas became the first state to pass a law granting in-state tuition to undocumented college students. Those laws — and others that followed in Illinois, Kansas, Nebraska, New Mexico, New York, Oklahoma, Utah and Washington — came in the wake of 1996 federal laws that restrict benefits to undocumented immigrants.

One law banned awarding postsecondary education benefits to undocumented students on the basis of state residency “unless a citizen or national of the United States is (also) eligible for such a benefit without regard to whether the citizen or national is such a resident.” The other federal law said states may provide public benefits to undocumented immigrants “only through the enactment of a state law after Aug. 22, 1996” that provides for the benefit. So those 10 states eventually did.

According to Brenda Bautsch, a policy associate with the National Conference of State Legislatures, several states besides Maryland are pondering similar bills: Colorado, Connecticut, New Jersey and Virginia. She says Arkansas and Missouri lawmakers are taking a different route, debating bills to ban in-state tuition for undocumented


AB 540, as California’s law is known, avoids the federal residency-based tuition rule by offering in-state tuition to those who graduate from a California high school after attending at least three years. Through this approach, California offers in-state tuition to undocumented students, not because they reside in California but because they attended and graduated from a California high school. Boarding school children who live in other states qualify. So do students who moved from California after high school graduation.

In late 2005, 42 U.S. citizen students and their parents who pay out-of-state tuition at California universities sued, saying they deserved in-state rates, too, if undocumented students received them. A lower court disagreed. But last fall, the appellate court said that AB 540 conflicted with federal law.

“You have more than 100,000 students that have been discriminated against in California,” says Michael J. Brady, the lawyer who represents the plaintiffs. “Most people understand that illegal aliens are treated equally sometimes, but they cannot understand how a U.S. citizen is treated worse than an illegal alien.”

Ethan Schulman, a lawyer representing the University of California system in its appeal, notes many non-California residents do receive in-state tuition through AB 540. In the 2005-2006 academic year, he says that, of 1,500 students who qualified at UC schools, just 390 were undocumented.

The California State University System does not keep such statistics on its AB 540 students, says Andrea Marie Gunn at CSU’s Office of General Counsel. The community college system did not respond to requests for its numbers.

“What we’re talking about here are undocumented students who were brought to this country by their parents as minors and who have grown up here, gone to high school in California and graduated from high school and excelled in high school to the point where they’ve been admitted here either to the University of California, California State University or the state community college systems,” Schulman says.

“They are here through no fault of their own — and all that this law does is give them an opportunity to get an affordable college education.”

Other states with similar laws worry about the fate of the California law. Utah Attorney General Mark L. Shurtleff, in his request for the California Supreme Court to review the case, said that while California court decisions don’t legally bind other states, the lower court decision that found the California law conflicted with federal law “casts a pall over the viability of this public policy, not only in California, but nationwide.”

Kirwan, the University of Maryland System chancellor, says his schools need to have an in-state tuition law. In 1982, the U.S. Supreme Court ruled that undocumented children must be allowed to attend public K-12 schools.

But most states that allow undocumented students to attend their colleges usually charge much higher out-of-state tuition.

“Something needs to change. I hope the federal law can be corrected so we can address this issue in Maryland. Or, barring that, we’ve got to come up with some other creative ideas,” says Kirwan.

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