The California Supremes came down with a yes, in fact an illegal alien could receive in-state tuition.
At first, I was outraged. Then I started to think as I read the case.
Let's talk about the case first. The case was brought on behalf of some students who are U.S. citizens, but do not meet certain requirements for residency laid out in Education Code § 68130.5. They argue that it is unfair to make them pay higher rates than in-state, illegal aliens.
Essentially, the plaintiffs argued on appeal that this was a case of federal superseding state law. That the California law should have been invalidated by various Federal statutes pertaining to illegal immigration. The defendants argued that this not a question of Federal preemption, since, they argue, there is no clear preemption of this issue.
What ends up happening is that the California Supreme do a very intricate dance. On the one hand, they absolutely did not want to give the Federal government more say than absolutely necessary in a California matter, namely who gets in-state tuition breaks. On the other hand, what the court very carefully does not do is find that there is anything in the California constitution which gives them this right. Instead, the right is only statutory and can be changed by the legislature.
And this goes to one of my favorite questions: why is the Legislature not doing its job? Why is the California Legislature approving, as it did in 2002, laws that devalue citizenship. And that, I think, is the real problem here. Why should someone follow all the rules, get a green card, obtain citizenship, and pay taxes if someone can just get around all that, not pay taxes, and still receive the same benefits of citizenship.
Yes, the argument is that there are talented, bright illegal aliens who would find it nearly impossible to afford education if this law were not upheld or amended by the Legislature. And yes, there is the whole question of whether it is proper to visit the sins of the parents (for crossing over illegally into the United States) on the children. The illegal alien, irrespective of whether they have been contributors or detractors individually to our society, is here illegally. Therefore, it is questionable whether they have any right to claim that they are legally domiciled in the United States or California. If that is the case, then why continue to extend to them the privileges which the citizens of the U.S., and California, enjoy?
As it stands right now, the law in question, section 68130.5, states
In the case of a person without lawful immigration status, the filing of an affidavit with the institution of higher education stating that the student has filed an application to legalize his or her immigration status, or will file an application as soon as he or she is eligible to do so.
Well, if that is the case, then why are we not demanding proof that they have complied with this part of the law? If that is the case, why does the State of California not puruse those who do not pursue legalization for the back money owed. Remember, its only an exemption contingent upon the illegal alien doing the lawful thing.
One of the insane, in my opinion, justifications, for allowing illegal aliens to get the in-state tuition rate comes in the article in today's Chronicle. Apparently, in a survey of 2,000 students which benefited from the law allowing entrance to a UC or CSU school based on California residency and high school achievement, approximately 20 percent of the students were illegals. One of them, Uriel Rivera, was reported by the Chronicle writer as stating that the taxpayers lose nothing by Mr. Rivera attending a UC because they have so much trouble paying their tuition anyways. Huh? Mr. Rivera, it is reported, is so far behind in his tuition that he cannot check books out of the library. Great. So we subsidize him, with the in-state tuition break, he can't pay that amount anyways. How is that a break for either the UC system or California tax payers?
The difference between in-state tuition and regular tuition is $22,700, notwithstanding the rate hikes which will probably happen next year. So for just the 200 illegals we know of from the study, that means $4,540,000 in lost fees per year. Would all of the 200 slots given to illegal aliens been filled by out of state residents, probably not. But say even 50 of those slots went to out of state. Think that's crazy? Well, the UC system is trying to get more out of state tuition money coming by aggressively recruiting. So maybe not so crazy?
But, if you went by the current stats, which states that 89% of the student body (undergrad and grad) are in-state tuition, then you still see an increase over almost half a million in fees to the UC system. But more importantly, all of those students, assuming that the illegal aliens are replaced by legal residents, would be eligible for Federal student assistance programs.
Although I've just done some, very rudimentary, numbers crunching, I come back to what I think is the real problem. The real problem is whether we are going to continue incentivize law breaking, and the devaluation of citizenship by not changing this law. Is it cold and elitist? Not if you think of it as the way you've been taught since kindergarten: everyone has to follow the same set of rules.
The plaintiffs in this case are planning to seek a writ to appeal to the U.S. Supreme Court. It may take the case, if only to talk about preemption and then remand it down for further findings. That's my guess.