It was through an ad in the campus newspaper that a UC Davis student learned that he was paying more in tuition as a nonresident than some undocumented immigrants, who are allowed to pay tuition at resident rates. As a U.S. citizen, Chaning Jang said that he felt the difference was unfair.
Jang was not alone in his reaction. Last month, he joined 38 other nonresident tuition payers as plaintiffs in a class-action lawsuit challenging a California law that allows universities to offer undocumented immigrants the opportunity to pay in-state tuition.
“This lawsuit is important because it is our way, as citizens, to ensure equality for all U.S. citizens,” Jang said.
The California law (AB 540), passed in 2001, allows any high school graduate who has been a resident for at least three years to pay in-state tuition, regardless of the student’s immigration status. Students who do not have legal status are also required to sign an affidavit saying that they are actively pursuing citizenship.
“We believe our policies are consistent with federal and state laws,” University of California Office of the President Ravi Poorsina said. “It isn’t based on [legal] residency and is not targeted towards immigrants.”
Poorsina said that 70 percent of those who benefit from the in-state exemption policy are actually U.S. citizens. According to Poorsina, some situations could involve students who attended and graduated from California high schools but whose parents moved out of state afterwards.
However, the lawsuit argues that the AB 540 violates a provision in the Illegal Immigration Reform and Immigrant Responsibility Act passed in 1998 barring undocumented immigrants from “any postsecondary education benefit” unless United States citizens are also offered the same benefits.
Kris Kobach, a University of Missouri-Kansas City law professor and part of the legal team representing the plaintiffs said the California law passed even though there were already questions about its validity.
“The law passed in California, but former Governor Gray Davis vetoed it saying it violated federal law and exposed the state to possible lawsuits,” Kobach said. “But a few years later, the governor was in a different political climate and allowed the law to eventually pass.”
For UC Davis veterinary student Suzanne Kattija-Ari, who paid out-of-state undergraduate tuition, the California law does not make sense.
“[AB 540] provides a benefit at the expense of families who are abiding by the laws of the state and the nation,” Kattija-Ari said.
In 2005, UC undergraduate California residents will pay $6,769 in student fees while nonresidents will pay a $17,304 tuition fee. According to the lawsuit, “combined with other fees resulting in ‘total nonresident student charges,’” nonresidents actually pay $24,589.
If the lawsuit succeeds, AB 540 would be repealed and the government of California would have to reimburse nonresidents who paid the higher tuition since the law passed. Kobach said that the class-action lawsuit represents approximately 60,000 nonresidents in the California public universities. It would also set a precedent for the nine states that have similar laws as California.
However, Linton Joaquin, Executive Director of the National Immigration Law Center said that if the lawsuit succeeds, the negative implications on students who do not have legal status would be tremendous.
“Children who have lived here most of their lives here will be deprived the opportunity to go to college,” Joaquin said. “It would prevent many high school graduates from going for their education.”
The lawsuit has put California at the forefront of a continuous battle between those who advocate for stricter immigration policies and those who advocate for immigrant rights.
Ira Mehlman, media director for the Federation for American Immigration Reform, a national group that pushes for stricter immigration policies and also helped to fund and find plaintiffs for the lawsuit, said that the California law will only encourage illegal immigration.
“They are nice incentives to remain here illegally,” Mehlman said. “The reason we have mass illegal immigration is that very often, it is rewarded. We offer thousands of subsidies for people to come and to remain here.”
But those who advocate for immigrant rights say this argument is incorrect.
“[Immigrants] come here to flee the situations in their home countries, whether economic or political,” Joaquin said. “They come here to work and to live. Part of that is having a family and having their children receive education.”
According to one engineering student who did not want to reveal his identity or university because of his illegal status, the challenges that undocumented students face are enormous. He argues that the issue for undocumented students is not necessarily about in-state tuition but that their inability to fill out the FAFSA, a requirement for receiving financial aid, gives them very few options. Though he does not reside in California, his state is among those who allow for the in-state tuition exemption.
“In-state tuition is the only resource we have,” he said. “Not being able to apply for financial aid means that I am always late paying for college, because me and my family have to work a long time to make some amount of money that is usually still not enough.”
Supporters for immigrant rights also argue that many of the students were brought to the country illegally by their parents when they were children. According to Joaquin, these students should not be punished for the actions of their parents.
Kobach and others maintain that in-state tuition policies still encourage students to remain in the country illegally. One possibility, Kobach said, is to have these students go back to their home countries temporarily and apply for visas from there.
However, others do not believe that this option is realistic for many.
“This is my home country,” the engineering student said. “Asking people in my position to go ‘back’ is pretty much the same as asking any American to leave and risk not coming back at all.”
While Kobach and others continue to work at having in-state tuition policies in other states repealed, with a similar lawsuit pending in Kansas, there are also those working to provide undocumented students a path toward legal status.
Among these efforts is the Development, Relief, and Education for Alien Minors Act, which would offer conditional legal status for those who were under 16 when they entered the country, have been in the country for at least five years, have received a high school diploma or been accepted to a college. The six-year conditional status would then turn into permanent status for those who finish two years of college. It would also allow states to pass laws such as AB 540. The D.R.E.A.M. Act was reintroduced to Congress last November.
“[The D.R.E.A.M. Act] would provide a way toward legal status for students,” Joaquin said. “Currently, the immigration system is very limited in the ways people can qualify to get legal permanent status.”
