California Supreme Court Upholds § 68130.5’s Resident Tuition Payment for Illegal Aliens; Deems Federal Immigration Statutes Non-Preemptive

The California Supreme Court today decided Martinez v. Regents of University of California, unanimously upholding a California law that allows, in certain circumstances, illegal/undocumented immigrants to pay in-state tuition, as opposed to the higher rates charged to out-of-state attendees.

The Martinez plaintiffs, comprised of out-of-state students attending California colleges, had argued against the legality of Cal Ed Code § 68130.5, which allows certain illegal aliens to pay resident tuition. In Martinez v. Regents of University of California, 166 Cal. App. 4th 1121 (Cal. App. 3d Dist. 2008) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law], the appellate court deemed § 68130.5 preempted by 8 U.S.C. § 1623, which prohibits illegal aliens who are residents of a state from receiving a postsecondary education benefit that is unavailable to U.S. citizens.

On appeal, the California Supreme Court reversed, holding that § 68130.5's tuition guarantee did not conflict with the federal prohibition against giving illegal immigrants educational benefits based on residency. The supreme court held that the in-state tuition benefit was not based on California residence, to which Congress had specifically referred. Instead, § 68130.5 required California students to show their attendance and graduation from a California high school. Specifically, the supreme court stated:

Section 1623(a) prohibits a state from making unlawful aliens eligible "on the basis of residence within a State" for a postsecondary education benefit. The fatal flaw in plaintiffs' argument concerning section 1623 is their contention that section 68130.5's exemption from paying out-of-state tuition is based on residence. It is not. It is based on other criteria, specifically, that persons possess a California high school degree or equivalent; that if they are unlawful aliens, they file an affidavit stating that they will try to legalize their immigration status; and, especially important here, that they have attended "[h]igh school . . . in California for three or more years." (§ 68130.5, subd. (a)(1), (2), & (4).) Indeed, both before and after section 68130.5's enactment, the law has been that unlawful immigrants cannot be deemed California residents for purposes of paying resident tuition. (Ed. Code, § 68062; Regents of University of California v. Superior Court (1990) 225 Cal. App. 3d 972, 980 [enhanced version].) Moreover, many unlawful aliens who would qualify as California residents but for their unlawful status, and thus would not have to pay out-of-state tuition, will not be eligible for section 68130.5's exemption -- only those who attended high school in California for at least three years and meet the other requirements are eligible for the exemption.

The section 68130.5 exemption cannot be deemed to be based on residence for the simple reason that many nonresidents may qualify for it. Every nonresident who meets section 68130.5's requirements -- whether a United States citizen, a lawful alien, or an unlawful alien -- is entitled to the nonresident tuition exemption. Attending high school in California for at least three years and meeting the other requirements are not the functional equivalent of residing in California. Some American citizens who are not residents of California may also be eligible for the exemption.

Lexis.com subscribers can view the enhanced version of Martinez v. Regents of the Univ. of Cal., 2010 Cal. LEXIS 11345 (Cal. 2010)

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of Martinez v. Regents of the Univ. of Cal., 2010 Cal. LEXIS 11345 (Cal. 2010)

Lexis.com subscribers can view the California appellate court and the California Supreme Court briefs and filings from Martinez v. Regents of University of California