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6 Virginia Journal of Social Policy & the Law [Vol. 19:3 to check the immigration status of all arrestees and persons who they reasonably suspect to be unauthorized immigrants, prohibits unauthorized immigrants from working in Arizona, requires all aliens to carry their registration papers at all times, and authorizes peace officers to make warrantless arrests of persons who they have probable cause to believe have committed a deportable offense.27 Alabama’s law, H.B. 56, is modeled after Arizona’s S.B. 1070.28 In fact, both laws were written by Kris Kobach, Of Counsel for the Immigration Reform Law Institute and Secretary of State of Kansas.29 In addition to provisions that mirror those contained in S.B. 1070, H.B. 56 requires every public elementary and secondary school in Alabama to determine the immigration status of incoming students, makes it a felony for undocumented immigrants to enter into business transactions with the state, and prohibits undocumented immigrants from enrolling in or attending any public postsecondary educational institution in the state.30 The Ninth and Eleventh Circuit Courts of Appeals have upheld preliminary injunctions blocking enforcement of certain provisions of the Arizona and Alabama laws, respectively, on the grounds that those provisions are likely to be preempted by federal law.31 Arizona appealed the Ninth Circuit’s decision to the U.S. Supreme Court, and, on December 12, 2011, the U.S. Supreme Court granted the state’s petition for writ of certiorari. The Supreme Court is scheduled to hear the case in spring 2012.32 Over the past decade, another preemption debate has emerged that implicates both the federal-state power struggle over public education and the clash over immigration: whether states can offer in-state tuition to undocumented immigrants attending public colleges and universities.

The Supreme Court has never spoken on the matter; in fact, it denied ARZ. REV. STAT. ANN. §§ 11-1051(B), 13-1509, 13-2928(C), 13-3883(A)(5) (2010).

Uriel J. Garcia, Democrats go to Alabama to fight SB 1070-style immigration law, CRONKITE NEWS (Nov. 17, 2011), http://cronkitenewsonline.com/2011/11/ democrats-go-to-alabama-to-fight-sb-1070-style-immigration-law/.


H.B. 56 §§ 8, 28(a)(1), 30(b).

United States v. Arizona, 641 F.3d 339, 366 (9th Cir. 2011); United States v.

Alabama, 443 F. App’x 411, 420 (11th Cir. 2011). In a companion case brought by private plaintiffs, the Alabama District Court enjoined H.B. § 8, which prohibits undocumented immigrants from enrolling at public postsecondary educational institutions in Alabama. Hispanic Interest Coal. of Ala. v. Bentley, 2011 U.S. Dist. LEXIS 137846, at *78–79 (N.D. Ala. Sept. 28, 2011).

Arizona v. United States, 132 S. Ct. 845 (2011); see also Stephen Dinan, High court to consider Ariz. migrant law, THE WASH. TIMES, Dec. 12, 2011, www.washingtontimes.com/news/2011/dec/12/supreme-court-will-hear-arizonaimmigration-law-ca/.

Summer 2012] In-State Tuition 7 certiorari on this very issue in June of 2011.33 Thirteen states currently offer in-state tuition eligibility to undocumented immigrants,34 but the question of whether the state statutes that provide this eligibility are preempted by federal law remains unanswered.

This Note will explore federal preemption challenges to state statutes granting in-state tuition to undocumented immigrants. It will then consider the significance of the Supreme Court’s denial of certiorari in the legal challenge arising from one of these statutes, California’s A.B.

540, and its grant of certiorari to consider Arizona’s S.B. 1070. This Note will then discuss the bearing these certiorari decisions have on the success of federal preemption challenges to state tuition laws benefiting students who are undocumented immigrants.


The U.S. Supreme Court first dealt with the issue of undocumented immigrants and public education almost thirty years ago in Plyler v.

Doe,35 in which it held that the state of Texas could not deny to undocumented children the free primary and secondary public school education that it offered to other children residing within the state.36 Plyler involved a Texas statute that withheld from school districts any state funds that would be used to educate students who were not “legally admitted” into the United States.37 The statute in effect permitted public school districts to deny enrollment or charge tuition to undocumented children. The Supreme Court held that the statute violated the Equal Protection Clause of the Fourteenth Amendment, which protects all “persons,” not just citizens.38 This holding was consistent with one hundred years of Supreme Court precedent recognizing aliens unlawfully present in the United States as “persons” within the meaning of the Fifth and Fourteenth Amendments.39 Although the Plyler Court found that these undocumented children were “persons” within the meaning of the Equal Protection Clause, the Court also held that undocumented immigrants are not a suspect class and that education is not a fundamental right under the Constitution.40 The Texas statute was thus subject to intermediate scrutiny, rather than Martinez v. Regents of Univ. of Cal., 131 S. Ct. 2961 (2011).

See infra note 90 and accompanying text.

457 U.S. 202 (1982).

Id. at 230.

Id. at 205.

Id. at 210.

Id. (citing Mezei, 345 U.S. at 212; Wong Wing v. United States, 163 U.S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)).

Id. at 219, 221.

8 Virginia Journal of Social Policy & the Law [Vol. 19:3 strict scrutiny. Under the Court’s construction of the intermediate scrutiny test, the state of Texas had to demonstrate that its statute bore a “fair and substantial relation” to a substantial state interest.41 The Court, in an opinion delivered by Justice Brennan, held that the Texas statute failed to further a substantial state interest.42 The state’s proposed interests failed to justify a statute that was wholly directed against children and that “impose[d] its discriminatory burden on the basis of a legal characteristic over which children can have little control.”43 The Court provided three main reasons for striking down the Texas statute. First, while the state of Texas contended that the statute would protect the state from the economic effects of an influx of illegal immigrants, it offered no evidence that illegal entrants “impose any significant burden on the State’s economy.”44 Instead, the Court held that excluding or charging tuition to undocumented children was “‘a ludicrously ineffectual attempt to stem the tide of illegal immigration,’ at least when compared with the alternative of prohibiting the employment of illegal aliens.”45 Second, although the state of Texas argued that undocumented children imposed special burdens on the state’s ability to provide highquality public education, the Court found nothing in the record to support the claim that the exclusion of undocumented children would be likely to improve the overall quality of education in the state.46 The Court instead agreed with the U.S. District Court for the Eastern District of Texas that “in terms of educational cost and need... undocumented children are ‘basically indistinguishable’ from legally resident alien children.”47 Third, whereas the state of Texas claimed that children who were undocumented immigrants were less likely to remain in the state and “put their education to productive social or political use,” the Court found that “many of the undocumented children disabled by this classification will remain in this country indefinitely, and that some will become lawful residents or citizens of the United States.”48 The Court reasoned that the Texas statute would in fact increase unemployment,

–  –  –

welfare, and crime by “promoting the creation and perpetuation of a subclass of illiterates within our boundaries.”49 Justice Brennan took the opportunity to emphasize the importance of education in this country, as a mechanism that “provides the basic tools by which individuals might lead economically productive lives to the benefit of us all” and that “has a fundamental role in maintaining the fabric of our society.”50 Accordingly, he cautioned that “[w]e cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.”51 Borrowing the language of Brown v. Board of Education, Justice Brennan noted that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”52 Justice Brennan also suggested that providing K-12 education to undocumented children is in society’s interest and that “[b]y denying [undocumented] children a basic education, we... foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”53 Justice Powell, in a concurring opinion, placed great weight on the fact that the appellee children, unlike their parents, had not made the conscious choice to leave Mexico and enter the United States illegally.54 Therefore, under the Texas law, those undocumented children were “excluded only because of a status resulting from the violation by parents or guardians of our immigration laws and the fact that they remain in our country unlawfully. The appellee children are innocent in this respect. They can ‘affect neither their parents’ conduct nor their own status.’”55 For nearly thirty years, undocumented children have been attending elementary, middle and high schools in the United States as beneficiaries of the Plyler holding. The Plyler Court, however, limited its holding to K-12 education and has since declined to decide whether undocumented children’s right to attend public school extends to higher education.56 As Id.

Id. at 221.


Id. at 223 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).

Id. at 223.

Id. at 238 (Powell, J., concurring).

Id. (quoting Trimble v. Gordon, 430 U.S. 762, 770 (1977)).

See Martinez v. Regents of Univ. of Cal., 131 S. Ct. 2961, 2961 (2011) 10 Virginia Journal of Social Policy & the Law [Vol. 19:3 a result, the states have been left to themselves to decide whether to grant or deny undocumented immigrants enrollment in their public universities. Although undocumented students are able to pursue higher education in most states, two states have taken action to deny undocumented immigrants admission to their public colleges and universities.

In 2002, Virginia Attorney General Jerry Kilgore circulated a memorandum to colleges and universities in Virginia advising them to deny admission to students who are undocumented immigrants.57 In this memorandum, Attorney General Kilgore acknowledged that, “unlike in the area of employment law, there is no statute that requires proof of United States citizenship or proof of immigration status in order to apply to a college or university.”58 Thus, he concluded that postsecondary educational institutions have broad discretion in deciding how they will treat applicants who are not lawfully present in the United States.59 In particular, Attorney General Kilgore pointed to the loopholes in the country’s student and exchange visitor programs that enabled the September 11 hijackers to launch their attack from inside the U.S. just one year prior.60 He observed that the Immigration and Naturalization Service (INS) had proposed regulations to close some of these loopholes.61 His recommendation to the Commonwealth’s educational institutions was consistent with the spirit of the INS regulations in reaction to the September 11 attacks.

On June 4, 2008, South Carolina was the first state to enact a law expressly providing that undocumented immigrants are not eligible to attend a postsecondary institution in the state.62 In June 2011, Alabama enacted a similar ban as a provision of H.B. 56; however, that provision Memorandum from Commonwealth of Va. Attorney Gen. on Immigration Law Compliance Update to Virginia Public Universities and Colleges and to the Executive Director of the State Council for Higher Education in Virginia (Sept.

5, 2002), available at www.schev.edu/AdminFaculty/ImmigrationMemo9-5APL.pdf.

Id. at 5.


Id. at 3.


See S.C. CODE ANN. § 59-101-430 (2010); Titus Ledbetter III, S.C.

restrictions leave illegal immigrants’ futures uncertain, INDEPENDENTMAIL.COM (Aug. 1, 2009, 9:58 PM), http://www.independentmail.com/news/2009/aug/01/between-borders-sclawmakers-placing-new-restricti/.

Summer 2012] In-State Tuition 11 was enjoined by the U.S. District Court for the Northern District of Alabama in September 2011.63 As a result, the undocumented children of the Plyler generation have been able to attend public colleges and universities in all but two states—Virginia and South Carolina. Paying to attend these colleges and universities, however, presents a separate issue. Undocumented immigrants do not qualify for federal financial aid, but the U.S.

Department of Education advises non-eligible non-citizens that they may nonetheless be eligible for state or college aid.64 In addition, a number of private organizations offer scholarships exclusively to students who are undocumented immigrants.65 With the skyrocketing cost of tuition in recent years,66 students across the country will likely choose to enroll in public colleges and universities in their home states, where they can take advantage of lower tuition rates. Two federal restrictions, however, may foreclose for undocumented immigrants the opportunity to take advantage of in-state tuition rates.


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