U.S. Supreme Court may hear lawsuit challenging AB 540, which lets undocumented students pay in-state tuition in California
By Jake Greenberg
May 27, 2011 1:15 a.m.
Correction: AB 540 is a California law.
A California law allowing undocumented students to pay in-state tuition after attending a California high school for three years may be on its way to the U.S. Supreme Court.
A class-action lawsuit against the University of California Board of Regents has been through both appellate and state supreme courts so far. Last week, a committee began reviewing the case to determine whether it will go before the U.S. Supreme Court.
The plaintiffs are a group of 42 former students from the University of California, California State University and California Community College systems who paid out-of-state tuition while attending college.
The group is suing the regents for the difference they had to pay in tuition for their four or two years in school, plus interest, said Mike Hethmon, a UCLA alumnus and general council for the Immigration Reform Law Institute. The institute is a Washington interest group that works to protect the rights of legal U.S. citizens.
“We’re looking at billions of dollars worth of reimbursement,” Hethmon said. “But it isn’t fair and it isn’t legal that illegal immigrants should receive lower tuition costs than legal American citizens from another state.”
Yet, legal counsel for the UC Board of Regents said that the law in question, AB 540, does not grant in-state tuition to students based on residency but on whether they attended a California high school.
“Two-third of students benefiting from AB 540 are legal U.S. citizens but went to boarding schools in California, temporarily moved out of the state or for some other reason are not California residents,” said Ethan Schulman, an attorney for the UC Regents.
The creators of AB 540 were particularly careful to make sure the state did not overstep its limits, Schulman said.
“People simply being in this country is not in itself breaking the law,” he said. “Students should not be punished for something they didn’t control, since most of them were brought to the U.S. by their parents when they were children.”
Kent Wong, a professor of labor and the director of the UCLA Labor Center, said repealing AB 540 would have many effects for college students across the country.
Only 2 percent of cases eligible to go before the U.S. Supreme Court are actually reviewed, so at this point the chance is low that AB 540 will be challenged, Wong said.
However, if the Supreme Court were to overturn AB 540, thousands of students would find it much more difficult to access higher education and, indirectly, the workforce, he added.
The plaintiffs’ case rests on the application of the Supremacy Clause of the Constitution, which they claim the current AB 540 legislation violates, Hethmon said.
According to the Supremacy Clause, when a state law contradicts a federal law, the federal law takes priority.
When Congress passed the Welfare Reform Act in 1996, it stated that undocumented students were unable to receive in-state tuition based on their residency.
Last year, the California Supreme Court ruled AB 540 is constitutional and does not violate any federal law.
According to Hethmon, though, AB 540 violates the Welfare Reform Act by allowing undocumented students access to in-state tuition but denying it to out-of-state U.S. residents.
A committee evaluated the case on May 20. A decision on whether it will be reviewed by the Supreme Court will likely be announced by the end of the month, Hethmon said.
