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A Glimmer of Hope: The U.S. Supreme Court Upholds In-State Tuition for Undocumented Youth in California


Tuesday, July 5, 2011
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Despite the lack of comprehensive immigration reform, there is a glimmer of hope for the millions of undocumented youth living in the United States. On June 6, 2011, the U.S. Supreme Court declined to hear a challenge to a California law, “AB 540,” that allows undocumented students to attend state colleges and universities at in-state tuition rates. The Supreme Court’s refusal to examine the case means that California’s undocumented immigrant youth will continue to reap the benefits of reduced tuition in the state’s institutions of higher education.


AB 540 dictates that to qualify for in-state tuition in California’s colleges and universities, students must meet three requirements. First, they must attend a California high school for three years. Second, they must graduate from that high school. Finally, students need to fill out an affidavit stating that they will apply for U.S. residence as soon as possible. Any individual who complies with these requirements, regardless of immigration status, will be offered the same tuition discounts as California residents. This ruling will have a remarkable impact on undocumented students’ capacity to attend college. For example, the University of California, Santa Barbara’s in-state tuition for the 2010-2011 school year was $11,686 compared to out-of-state tuition, which was $34,566.


The California law was challenged by the Washington-based Immigration Reform Law Institute, which represented a group of 42 students, all of whom are U.S. citizens and non-California residents. The students argued that AB 540 confers an unjust benefit to illegal immigrants based on their residence in California. In-state tuition rates are about one-third the cost charged to out of state students, and the lawsuit asserted that illegal immigrants are treated better than out-of- state legal residents applying to California’s public colleges and universities.


The Supreme Court’s refusal to examine AB 540 has far-reaching implications. The unchallenged existence of AB 540 and related laws could make higher education more affordable to the more than 65, 000 undocumented youth graduating from U.S. high schools each year. AB 540 can also open the door to expanding public scholarships for these students. Further, more states will likely follow California’s example. Even before the Court’s decision, at least 11 states had laws similar to AB 540, including Illinois, New York, Texas, New Mexico, Kansas, Nebraska, Utah, and Washington. The Court’s ruling opens the door for more states to pass laws that mirror AB 540. More importantly, it makes it extremely difficult to challenge these laws. This summer, Maryland will allow undocumented immigrants attending public colleges to pay in-state tuition. Connecticut has already passed a similar bill, and the governor has publicly stated that he plans to sign it. Oregon and Rhode Island are presently debating education benefits for undocumented youth.


With immigration being one of the most divisive issues in the current political climate, there are also many passionate opponents to AB 540 and similar laws. The 42 students who challenged the California law contend that it costs them $20,000 more in tuition and fees than undocumented immigrant youth to enroll in a public college or university in California. One of the students’ attorneys also wrote that California spends over $208 million annually to subsidize the tuition of undocumented students. Such figures are bound to infuriate many opponents who assert that AB 540 and similar provisions are fundamentally unfair because they treat undocumented students better than their U.S. citizen counterparts, many of whom are low-income earners and can barely afford a college education.


Numerous states have vowed to prevent laws similar to AB 540 from passing in their jurisdictions. Alabama legislators recently passed a law denying in-state tuition for undocumented students and barring their enrollment in colleges and universities. Alabama’s governor has indicated that he supports the bill and may sign it into law. The University System of Georgia’s Board of Regents approved a plan, which would allow public colleges and universities to prevent the admission of undocumented youth. In Massachusetts, a voter referendum campaign to ban its in-state tuition law is in full force, and South Carolina has banned illegal immigrants from attending any of its state institutions.


Despite the resistance, undocumented youth are hopeful and many feel that they have been given a second chance at life. For many of these young students, higher education was just a dream. Now, for some, it is a reality. Unfortunately, this reality may be short-lived. Even though some undocumented youth are able to attend public colleges and universities at in-state tuition rates, there is no guarantee that after they graduate from these institutions, they will have a future in the United States. Graduation produces new obstacles because many occupations require proof of lawful status in the United States.


Laws like AB 540 do not provide students with lawful status after they graduate. Essentially, these hard-working undocumented youth may be left hanging after putting in the hard work to obtain a college education. Only passage of the DREAM Act (Development, Relief, and Education for Alien Minors Act) or similar laws would allow these students to obtain lawful status. Yet, regardless of what awaits them after graduation, thousands of undocumented youth are reveling in the U.S. Supreme Court’s decision to let California law, AB 540, stand.


Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.


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About Igbanugo Partners Int'l Law Firm

Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.

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