Tuition Break for Some Kansas Undocumented Immigrants Stands

TOPEKA, Kan.

Critics of a law giving some undocumented immigrants a tuition break at state universities and colleges are promising to keep challenging it, despite a recent legal setback from the U.S. Supreme Court.

The high court has refused to consider the appeal of six parents and 18 non-Kansas students who attacked the law in court. They had hoped to reinstate their lawsuit after a federal judge dismissed it.

Kris Kobach, a University of Missouri-Kansas City law professor who has represented the parents and students, said last week that other court challenges still are possible. And some legislators haven’t given up on repealing the 2004 law, which allows some immigrants to pay the lower tuition normally reserved for legal Kansas residents.

“I think it will continue to be an issue before the Legislature,” said Rep. Lance Kinzer, an Olathe Republican who opposes it. “It’s almost inevitable that the issue will be raised if the opportunity presents itself.”

Kobach, who’s also chairman of the Kansas Republican Party and a former adviser to the U.S. attorney general on immigration law, said challenges in other states also could undercut the Kansas law. He’s involved in a case pending in California’s appellate courts.

According to national groups, 10 states, including California and Kansas, have such laws. The others are Illinois, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah and Washington.

“I think once one of the 10 states falls, I think eventually the others will roll over like dominoes,” Kobach said.

But supporters of the law are confident it will withstand either court challenges or legislative attacks. Opponents in Kansas have failed repeatedly to persuade the Legislature to pass a repeal bill.

Josh Bernstein, director of federal policy for the National Immigration Law Center, said such laws help immigrants who come to the U.S. as young children, then stay and attend school.

“It’s not really in our interest to have educated these kids and then to have them leave,” Bernstein said. “The reality is, they’re not going to leave.”

The Kansas law allows undocumented immigrants to qualify for lower in-state tuition at state universities, community colleges and technical schools if they attend a Kansas high school for at least three years and graduate or earn a general education development certificate in Kansas. Also, they must actively be seeking legal immigration status or plan to do so when they are eligible.

The tuition break can be significant. For example, the tuition and fees paid by an undergraduate from Kansas taking 15 hours at the University of Kansas were $3,300 per semester for 2007-08. For out-of-state students, the figure was $8,053.

The Board of Regents said 243 students took advantage of the provision in fall 2007. But 193 of them, or 79 percent, attended community colleges.

The law passed in 2004 with bipartisan support and the backing of Democratic Gov. Kathleen Sebelius.

“Governor Sebelius has always been confident in this law, which makes college accessible,” spokeswoman Nicole Corcoran said. “Those eligible for in-state tuition must prove they’re pursuing citizenship and must pay their own way and are not eligible for state or federal financial aid.”

Opponents contend the law discriminates against legal residents of other states and endorses illegal behavior.

They also argue that the Kansas statutes and others like it conflict with federal immigration laws. Supporters contend such laws are drafted carefully enough that there isn’t a problem.

The federal court rulings hinged on whether the parents and students who objected to the law could sue state officials.

A federal judge dismissed the Kansas lawsuit in July 2005, saying students and parents who filed it couldn’t show they were harmed. The judge noted that even if the law were struck down, those students would still pay the same out-of-state tuition rates.

The 10th U.S. Circuit Court of Appeals in Denver reached the same conclusion. In declining to review the students and parents’ appeal last week, the Supreme Court gave no explanation.

Kobach said such a decision is not surprising because the high court considers about 1 percent of the appeals filed with it and concentrates on resolving conflicting rulings from lower courts.

“Once we get to the merits of the issue, I’m confident that we’ll win at the end of the day,” Kobach said.

While said the high court’s action makes a federal lawsuit unlikely, Kobach said he believes some aggrieved students — such as foreign students who have a valid U.S. visa — might be able to sue.

Both agreed such an issue is less of an obstacle in many state courts, though Bernstein still believes a lawsuit would fail there as well.

In 2006, a superior court judge in Yolo County, Calif., upheld that state’s law, but that case is on appeal.

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