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Jennifer Joy Lee*


In the last decade, state legislatures have enacted sweeping laws

touching various aspects of the lives of immigrants, both documented

and undocumented. These laws diverge widely in their treatment of the

undocumented and range from granting in-state tuition eligibility to those immigrants who have fulfilled high school graduation requirements, to more hostile attempts by states to control unwanted migration, as exemplified by Arizona’s controversial S.B. 1070. What these laws have in common is their bold reach into the sphere of immigration law—an arena in which the federal government’s power has been declared plenary. This Note will explore federal preemption challenges to state statutes granting in-state tuition eligibility to undocumented immigrant students—a population that has grown rapidly in recent years. This Note will consider the significance of the Supreme Court’s denial of certiorari in the legal challenge arising one of these statutes, California’s A.B. 540, and its grant of certiorari to consider enforcement-centered Arizona’s S.B. 1070. Finally, this Note will discuss the bearing these certiorari decisions have on the success of federal preemption challenges to state tuition laws benefiting students who are undocumented immigrants.


I. Introduction

A. The Court Opens the Door to K-12 Education: Plyler v. Doe......... 7 B. Congress Speaks: Sections 1621 and 1623

C. The States React: Granting and Banning Tuition Benefits for the Undocumented

II. Evading “Residence”: Preemption Challenges to A.B. 540 and Its Progeny

* J.D. 2012, University of Virginia School of Law; B.A. 2008, University of Virginia. My gratitude and love to my parents, who have inspired my thirst for knowledge and passion for education. Special thanks to Professor Doug Ford, for his guidance and mentorship in my pursuit of immigration law. Finally, many thanks to the editors of the Virginia Journal of Social Policy and the Law, and especially to Belinda Luu, for their invaluable comments and suggestions.

2 Virginia Journal of Social Policy & the Law [Vol. 19:3 A. Arguments in Favor of Preemption

1. Express Preemption: Sections 1621 and 1623

a. A.B. 540 and Its Progeny are Preempted by Section 1621..... 17 b. A.B. 540 and Its Progeny Are Preempted by Section 1623.... 19

2. Implied Preemption

a. Implied Preemption: A.B. 540 Invades a Field Occupied by the Federal Government

b. Implied Preemption: A.B. 540 Conflicts with Congress’s Purpose

c. Implied Preemption: A.B. 540 Is a “Regulation of Immigration”

B. Arguments Against Preemption

1. No Express Preemption: Sections 1621 and 1623

a. A.B. 540 and Its Progeny Are Not Preempted by Section 1621

b. A.B. 540 and Its Progeny Are Not Preempted by Section 1623

2. No Implied Preemption

a. No Implied Preemption: A.B. 540 Does Not Invade a Field Occupied by the Federal Government

b. No Implied Preemption: A.B. 540 Neither Conflicts with Congress’s Purpose Nor Is a “Regulation of Immigration”........ 29 III. The Court Speaks: Two 2011 Certiorari Decisions and Their Bearing on the Success of Preemption Challenges to A.B. 540 and Its Progeny

IV. Conclusion

–  –  –

As of 2010, approximately 11.2 million undocumented immigrants1 were living in the United States.2 Many of these undocumented immigrants include children who accompanied their parents across the The term “undocumented immigrant” refers to persons not lawfully in the United States. Although the term does not appear in the text of the federal statutes, it has replaced “illegal alien” and “illegal immigrant” as the widely preferred term for persons not lawfully in the country. See Mónica Novoa, Jose Antonio Vargas Came Out as Undocumented, NOT “Illegal,” COLORLINES (June 23, 2011, 9:43 AM), http://colorlines.com/archives/2011/06/jose_antonio_ vargas_came_out_as_undocumented_not_illegal.html.

Julia Preston, 11.2 Million Illegal Immigrants in U.S. in 2010, Report Says; No Change From ‘09, N.Y. TIMES, Feb. 1, 2011, www.nytimes.com/2011/02/ 02/us/02immig.html; see also Unauthorized Immigrant Population: National and State Trends, 2010, PEW RESEARCH CTR., 1 (Feb. 1, 2011), http://www.pewhispanic.org/files/reports/133.pdf.

Summer 2012] In-State Tuition 3 border.3 In fact, approximately 1.1 million undocumented immigrants are under the age of 18.4 In 2005, the Federation for American Immigration Reform (FAIR) reported that undocumented immigrants made up more than 15% of California’s K-12 students and more than 5% of K-12 students in Florida, Georgia, Kansas, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Utah, and Washington.5 In recent years, these states have been active in introducing and passing immigration-related measures.6 For most of United States history, immigration has been a federal mandate. Although the word “immigration” does not appear in the Federal Constitution, the powers of Congress “to declare war,” “to regulate commerce with foreign nations,” and “to establish a uniform Rule of Naturalization” have been raised as bases for federal immigration authority.7 The United States Supreme Court has recognized the power of Congress “to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe” as one that is “inherent in sovereignty, and essential to self-preservation.”8 For more than a century, the Supreme Court has consistently affirmed the federal government’s “plenary power” over immigration.9 At the same time, public education is traditionally regulated by state and local governments. The Supreme Court has observed that “[n]o single tradition in public education is more deeply rooted than local control over the operation of schools.”10 Local control over education “affords citizens an opportunity to participate in decision-making, permits the structuring of school programs to fit local needs, and encourages ‘experimentation, innovation, and a healthy competition for Reuven E. Epstein, Not all illegal immigrant children have a choice, LODI NEWS-SENTINEL, June 20, 2011, www.lodinews.com/opinion/letters/article_ 08246bd1-2ce4-529c-bb62-45031ab72330.html.

An Overview of College-Bound Undocumented Students, EDUCATORS FOR FAIR CONSIDERATION, 1 (Oct. 2011), http://www.e4fc.org/images/Fact_Sheet.pdf.

Jack Martin, Breaking the Piggy Bank: How Illegal Immigration is Sending Schools into the Red, FED’N FOR AM. IMMIGRATION REFORM, 1 (2005), http://www.fairus.org/publications/breaking-the-piggy-bank-how-illegalimmigration-is-sending-schools-into-the-red-updated-2005.

See infra notes 22–24.

Fong Yue Ting v. United States, 149 U.S. 698, 712 (1893); see also Fiallo v.

Bell, 430 U.S. 787, 792 (1977); Chae Chan Ping v. United States, 130 U.S. 581, 629 (1889).

Fong Yue Ting, 149 U.S. at 705; see also Chae Chan Ping, 130 U.S. at 604.

See Shaughnessey v. Mezei, 345 U.S. 206, 210 (1953); Fong Yue Ting, 149 U.S. at 705; Chae Chan Ping, 130 U.S. at 604.

Milliken v. Bradley, 418 U.S. 717, 741 (1974).

4 Virginia Journal of Social Policy & the Law [Vol. 19:3 educational excellence.’”11 Critics of the decentralized American public school system have described it as a “‘non-system system,’ in which individual school districts progress at vastly different speeds.”12 Some go further to contend that “[t]he United States has never had an ‘educational system’; what it has had is 15,000 or so school districts, which decide more or less for themselves how and what to teach and what students need to learn in order to move from grade to grade, or to graduate.”13 Over the past century, however, federal legislation and state legislation in these two areas of law have begun to overlap. As the federal government has become more involved in public education and the states more involved in the regulation of immigration, power struggles among federal, state, and local governments have emerged. In education, anti-federal sentiment dates back to the formation of the United States Department of Education in 1980 under the Department of Education Organization Act.14 That same year, Ronald Reagan, in his campaign for the 1981 presidency, referred to the Department of Education as “President Carter’s new bureaucratic boondoggle” and pledged to abolish it.15 As recently as 2011, a number of Republican candidates and organizations such as FreedomWorks have continued the fight to abolish the United States Department of Education.16 One particularly controversial issue is the imposition of national standards for standardized testing. States’ rights advocates claim that national standards undermine the states’ historical control over education17 and “present the risk of states accepting a middle-of-the-road, lowest Id. at 742 (quoting San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 50 (1973)).

Matthew A. Brunell, Note, What Lawrence Brought for “Show and Tell”: The Non-Fundamental Liberty Interest in a Minimally Adequate Education, 25 B.C.

THIRD WORLD L.J. 343, 343–44 (2005).

James Traub, The Test Mess, N.Y. TIMES, Apr. 7, 2002, www.nytimes.com/2002/04/07/magazine/07TESTING.html?pagewanted=all.

Department of Education Organization Act, Pub. L. No. 96-88, 93 Stat. 669 (codified as amended in scattered sections of 20 U.S.C.).

Henry List, Rand Paul proposes $500 billion in federal spending cuts, EXAMINER.COM (Jan. 27, 2011), http://www.examiner.com/conservative-inlexington/rand-paul-proposes-500-billion-federal-spending-cuts.

Kristen East, Some GOP candidates seek to eliminate Dept. of Education, THE DAILY IOWAN, Dec. 8, 2011, www.dailyiowan.com/2011/12/08/Metro/

26316.html; see also Julie Borowski, Abolishing the Department of Education is the Right Thing to Do, FREEDOMWORKS (Sept. 19, 2011), http://www.freedomworks.org/blog/jborowski/abolishing-the-department-ofeducation-is-the-righ.

National Standards Effort Moves Ahead, Creates Backlash, FAIRTEST, http://www.fairtest.org/national-standards-effort-moves-ahead-creates-back (last visited Apr. 13, 2012).

Summer 2012] In-State Tuition 5 common denominator education standard.”18 In January 2011, Wyoming state senator Jim Anderson declared that “[t]he biggest social issue on the calendar is education.”19 Anderson projected that the 2011 legislative session would “provide a forum for lawmakers to express their constituents’ frustration and displeasure with the restrictions and intrusions and lack of response by the federal government.”20 In the immigration context, despite the federal government’s “plenary power” over immigration,21 state laws related to immigration have increased dramatically in recent years. In 2005, 300 immigrationrelated bills were introduced, 39 laws were enacted, and 6 were vetoed.22 Just five years later, in 2010, more than 1400 immigration-related bills were introduced, 208 laws were enacted, 10 were vetoed, and 138 resolutions were adopted, for a total of 346 immigration-related bills and resolutions.23 This is a ten-fold increase in legislative activity from 2005.

The trend has continued in the past two years. According to the National Conference of State Legislatures (NCSL), “In the first half of 2011, state legislators introduced 1,592 bills and resolutions relating to immigrants and refugees in all 50 states. The number of bill introductions is an increase of 16 percent compared to the first half of 2010, when 46 states considered 1,374 bills and resolutions pertaining to immigrants.”24 Two particularly sweeping and controversial state laws relating to immigration were recently enacted: (1) Arizona’s S.B. 1070,25 signed into law on April 23, 2010, and Alabama’s H.B. 56,26 enacted on June 2,

2011. Among other things, S.B. 1070 requires law enforcement officials Rachel Sheffield, State-Based Reform, Not National Standards, Key to Better Education, THE FOUNDRY (June 28, 2011, 11:52 AM), http://blog.heritage.org/ 2011/06/28/state-based-reform-not-national-standards-key-to-better-education/.

Joan Barron, Education, states’ rights expected to dominate 2011 Wyoming Legislature, CASPER STAR-TRIB. (Jan. 9, 2011 2:00 AM), http://trib.com/news/ state-and-regional/govt-and-politics/article_b6fc5fbb-5ef9-578e-8b7def5da4cd4bd.html.


See Kleindienst v. Mandel, 408 U.S. 753, 766 (1972).

Joy Segreto & Ann Morse, Immigration Policy Report: 2011 ImmigrationRelated Laws and Resolutions in the States (January-June), NAT’L CONFERENCE STATE LEGISLATURES (Sept. 19, 2011), http://www.ncsl.org/ OF default.aspx?TabId=23362.



2010 Ariz. Sess. Laws 113, amended by 2010 Ariz. Sess. Laws 211 (codified as amended at ARIZ. REV. STAT. ANN. §§ 11-1051, 13-1509, 13-2319, 13-2928, 13-2929, 13-3883, 23-212, 23-212.01, 23-214, 28-3511, 41-1724 (2012)), available at www.azleg.gov/legtext/49leg/2r/bills/sb1070h.pdf.

2011 Ala. Acts 535 (codified at ALA. CODE § 31-13-1 et. seq. (2012)), available at www.ncsl.org/documents/statefed/AlabamaH56.pdf.

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