Legal Commentary

California Statute Allowing In-State College Tuition for Some Illegal Aliens Not Preempted by Federal Law

By Eugene Volokh

So the California Supreme Court unanimously held Monday, in Martinez v. Regents, reversing a California Court of Appeal decision I had blogged about two years ago.

I don?t have much to say on the subject, except that it involves the question whether the particular language of two federal statutes (8 U.S.C. § 1623 and 8 U.S.C. § 1621) preempts Calif. Educ. Code § 68130.5. For instance, the main issue was whether the § 1623 statement that an illegal alien ?shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit ... without regard to whether the citizen or national is such a resident? (emphasis added) preempted the California provision that allowed in-state tuition to anyone who ?meets all of the following requirements?:

(1) High school attendance in California for three or more years.

(2) Graduation from a California high school or attainment of the
equivalent thereof.

(3) Registration as an entering student at, or current enrollment
at, an accredited institution of higher education in California not
earlier than the fall semester or quarter of the 2001-02 academic
year.

(4) 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.

This question, and the others in the case, shouldn?t be (and wasn?t) answered with reference to high constitutional or moral principles. Rather, the court should (and did) focus on the statutory text and related matters ? have a look at the decision for that.

Full post as published by The Volokh Conspiracy on November 17, 2010 (boomark / email).