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In 1996, Congress enacted two provisions that limit states’ ability to offer in-state tuition to undocumented immigrants: (1) 8 U.S.C. § 1621 was enacted as part of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA),67 and (2) 8 U.S.C. § 1623 was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).68 PRWORA provides: “Notwithstanding any other provision of law and except as provided in subsection[]... (d), an [illegal alien]... is not eligible for any State or local public benefit (as defined in subsection (c)).”69 Subsection (c) defines public benefits to include postsecondary education benefits “for which payments or Hispanic Interest Coal. of Ala. v. Bentley, 2011 U.S. Dist. LEXIS 137846, at *79 (N.D. Ala. Sept. 28, 2011).

See FAFSA on the Web, FAFSA, http://www.fafsa.ed.gov/fotw1112/help/ fotw14a.htm (last visited Dec. 15, 2011).

See Scholarships for Illegal Immigrants, COLL. GENIE, http://collegegenie.com/minorty-scholarships/scholarships-illegal-immigrants (last visited Dec. 15, 2011).

See Coast-to-coast double-digit college tuition hikes, MSNBC (Feb. 1, 2010), http://www.msnbc.msn.com/id/35185920/ns/us_news-life/t/coast-to-coastdouble-digit-college-tuition-hikes/#.Tps-bXErp1A.

Personal Responsibility and Work Opportunity Act of 1996, Pub. L. No. 104§ 411, 110 Stat. 2268 (codified as amended in 8 U.S.C. § 1621).

Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.

L. No. 104-208, Div. C, § 505, 110 Stat. 3009-672 (codified as amended in 8 U.S.C. § 1623).

Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. § 1621 (2010).

12 Virginia Journal of Social Policy & the Law [Vol. 19:3 assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.”70

The above-referenced exception in subsection (d) provides:

–  –  –

While § 1621(a) provides that undocumented immigrants are generally ineligible for state benefits, § 1621(d) creates an exception where state laws “affirmatively provide[]” that undocumented immigrants are eligible for in-state tuition. The definition of “affirmatively provide” has become a source of debate among proponents and opponents of in-state tuition eligibility for undocumented students and will be discussed in Part II of this Note.

IIRIRA was enacted in September 1996, one month after the enactment of PRWORA. It imposes more substantive limits on state legislation relating to the availability of in-state tuition to undocumented

immigrants. Section 1623 of the IIRIRA provides:

Notwithstanding any other provision of law, an alien who is not lawfully present in the United States 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 (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.72 This language prohibits states from granting in-state tuition benefits to undocumented aliens on the basis of their residence in the state unless such benefits are also made available to nonresidents, and thereby narrows the authorization previously conferred by § 1621(d) to enact exceptions to the federal restrictions.73 Conflicting interpretations of § Id.

Id. (emphasis added).

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 § 1623, 8 U.S.C. § 1623 (2010) (emphasis added).

Martinez v. Regents of Univ. of Cal., 83 Cal. Rptr. 3d 518, 530 n.15 (Cal. Ct.

App. 2008).

Summer 2012] In-State Tuition 13 1623 have yielded contradictory conclusions regarding the validity of a California statute granting in-state tuition eligibility for undocumented students. These conflicting interpretations and their bases will be discussed in Part II of this Note.

–  –  –

In 2001, Texas and California became the first states to enact legislation permitting undocumented immigrants to qualify for in-state tuition benefits. Under the Texas Education Code, an undocumented immigrant is considered a “resident” for the purpose of qualifying for instate tuition rates if he or she: (1) graduated from a Texas public or private high school or received the equivalent of a high school diploma in Texas and (2) resided in Texas continuously for (a) “three years preceding the date of graduation or receipt of the diploma equivalent” and (b) one year preceding the latest census prior to the “term in which the person is enrolled in an institution of higher education.”74 In order to qualify for in-state tuition benefits, in addition to satisfying these residency requirements, an undocumented immigrant must submit an affidavit stating that he or she will apply to become a permanent resident of the United States as soon as he or she becomes eligible.75 On August 9, 2005, the Washington Legal Foundation (WLF) filed a complaint with the Department of Homeland Security, challenging the Texas statute.76 In its complaint, the WLF alleged that the Texas statute violated § 1623.77 Specifically, the Texas statute permitted “illegal aliens” living in Texas and who graduated from Texas high schools to be deemed “residents” of Texas in order to qualify for discounted tuition rates, but did not offer the same tuition rates to U.S. citizens and nationals who lived outside Texas.78 WLF requested that the Department “investigate the complaint and initiate appropriate enforcement action.”79 As of May 2012, the WLF is still awaiting Department of Homeland Security action on its complaint.80 TEX. EDUC. CODE ANN. § 54.052(a)(3) (West 2011).

Id. § 54.053(3)(B).

See Letter from Wash. Legal Found. to Daniel Southerland, Office of Civil Rights and Civil Liberties, Dep’t of Homeland Sec. (Aug. 9, 2005), available at http://www.wlf.org/upload/INSTATE.pdf.

Id. at 1.



See In re In-state Tuition for Illegal Aliens, WASH. LEGAL FOUND., http://www.wlf.org/litigating/case_detail.asp?id=366 (last visited May 5, 2012).

14 Virginia Journal of Social Policy & the Law [Vol. 19:3 A critical characteristic of the language of § 1623 is the narrowness of the prohibition. According to the text, states are banned from doling out in-state tuition benefits on the basis of residency in that state.81 Although the Texas statute defines “resident” in a way that arguably evades traditional notions of “residency” by focusing on the location of a student’s high school, the statute still makes reference to the concept of “residence” as a whole.82 Unlike the Texas legislature, the California State Assembly omitted any mention of “residency” in its own statute. In 2001, California enacted Assembly Bill 540 (“A.B. 540”), later codified

as section 68130.5 of the California Education Code, which provides:

–  –  –

(a) A student, other than a nonimmigrant alien within the meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States Code,83 who meets all of the following requirements shall be exempt from paying nonresident tuition at the California State University and the California Community


–  –  –

(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 8 U.S.C. § 1623(a) (2006).

TEX. EDUC. CODE ANN. § 54.052(a)(3) (West 2011).

8 U.S.C. § 1101(a)(15) lists the classes of aliens deemed to be “nonimmigrants” under the Immigration and Nationality Act (INA) and states that the term “immigrant” refers to every alien except an alien within one of the enumerated classes. Thus, California has declined to extend in-state tuition eligibility to those aliens who qualify as nonimmigrants, for example, foreign ambassadors and foreign exchange students.

Summer 2012] In-State Tuition 15 immigration status, or will file an application as soon as he or she is eligible to do so.84 In 2008, a group of U.S. citizens who were not California residents filed a class action against the Regents of the University of California and several other entities, challenging A.B. 540.85 By 2010, the lawsuit had worked its way up to the Supreme Court of California, which upheld A.B. 540 and determined that the provision was not preempted by federal law.86 Following the California Supreme Court’s ruling, the plaintiffs filed a petition for writ of certiorari in the U.S. Supreme Court.

The Court denied this petition in June 2011.87 A.B. 540 has engendered condemnation by critics such as Kris Kobach, who argues that it is unfair to charge a U.S. citizen a higher rate of tuition than that charged to an alien whose “very presence in the country is a violation of federal law.”88 In reaction, the states of Arizona, Colorado, Georgia, and Indiana have passed laws expressly denying tuition benefits to students who are undocumented immigrants.89 II. EVADING “RESIDENCE”: PREEMPTION CHALLENGES TO A.B. 540 AND ITS PROGENY Since 2001, eleven states have followed Texas and California in enacting legislation granting in-state tuition eligibility to students who are undocumented immigrants: Connecticut, Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Rhode Island, Utah, Washington, and Wisconsin.90 The language of these laws generally mirrors 2001 Cal. Stat. 814 (codified at CAL. EDUC. CODE § 68130.5(a)(1)–(4) (West 2011)).

Martinez v. Regents of Univ. of Cal., 83 Cal. Rptr. 3d 518, 533 (Cal. Ct. App.


Martinez v. Regents of Univ. of Cal., 241 P.3d 855 (Cal. 2010).

Martinez v. Regents of Univ. of Cal., 131 S. Ct. 2961 (2011).

Kris W. Kobach, Immigration Nullification: In-State Tuition and Lawmakers Who Disregard the Law, 10 N.Y.U. J. LEGIS. & PUB. POL’Y 473, 500–01 (2006– 2007).

See ARIZ. REV. STAT. ANN. § 15-1803 (2012); COLO. REV. STAT. § 24-76.5-103 (2011); GA. CODE ANN. § 20-3-66 (2011); IND. CODE § 21-14-11-1 (2011).

See CAL. EDUC. CODE § 68130.5 (West 2011); CONN. GEN. STAT. ANN. § 10aWest 2012); 110 ILL. COMP. STAT. 305/7e-5 (2009); KAN. STAT. ANN. § 76- 731a (2009); MD. CODE ANN., EDUC. § 15-106.8 (West 2011); NEB. REV. STAT.

ANN. § 85-502 (2011); N.M. STAT. ANN. § 21-1-4.6 (West 2011); N.Y. EDUC.

LAW § 355(2)(h)(8) (McKinney 2011); UTAH CODE ANN. § 53B-8-106 (West 2011); WASH. REV. CODE ANN. § 28B.15.012 (West 2011); WIS. STAT. § 36.27 (2011). Of the thirteen states that allow undocumented immigrants to qualify for in-state tuition benefits, Rhode Island is the only state to have created such a policy without legislative participation. See Sophia Seawell, 16 Virginia Journal of Social Policy & the Law [Vol. 19:3 California’s A.B. 540 insofar as it omits the term “residence” from the statute and instead employs a minimum time period of high school attendance in the given state. For example, Maryland’s S.B. 167, signed into law by Governor Martin O’Malley on May 10, 2011, authorizes instate tuition benefits at local community colleges for undocumented immigrant students who graduated from a public high school in Maryland.91 The student’s parents must be able to prove they pay Maryland taxes in order for the undocumented student to receive in-state tuition benefits.92 After two years, the undocumented immigrant students are given the option of transferring to a state university at in-state tuition rates.93 Under S.B. 167, students who are not lawful permanent residents of the United States must provide an affidavit to the public college or university stating that they will file an application to become a permanent resident within thirty days after becoming eligible to do so.94 Similarly, Connecticut’s H.B. 6390, signed into law by Governor Dan Malloy one month later, on June 13, 2011, provides in-state tuition eligibility to undocumented students who completed four years of high school, graduated, and enrolled in a public institution in the state.95 If the student does not have legal immigration status, he or she must file an affidavit with the college or university he or she plans to attend stating either that an application to legalize immigration status has been filed, or that he or she will file one as soon as he or she becomes eligible to do so.96

–  –  –

While the California State Assembly crafted A.B. 540 in order to comply with the PRWORA and IIRIRA,97 critics of A.B. 540 and its progeny have argued that such statutes are preempted by federal law, whether expressly or impliedly.98 The Supremacy Clause of the U.S. Constitution “establishes a constitutional choice-of-law rule, makes federal law paramount, and Controversy Erupts Over Tuition Break for Illegal Immigrants, THE BROWN DAILY HERALD (Oct. 6, 2011), http://www.browndailyherald.com/controversyerupts-over-tuition-break-for-illegal-immigrants-1.2647339#.Tpt1f3Erp1A.

2011 Md. Laws Ch. 191 (S.B. 167) (codified as amended at MD. CODE ANN., EDUC. § 15-106.8 (West 2012)).




2011 Conn. Legis. Serv. P.A. 11-43 (H.B. 6390) (West).


See Jessica Salsbury, Comment, Evading “Residence”: Undocumented Students, Higher Education, and the States, 53 AM. U. L. REV. 459, 473 (2003).

See, e.g., Kobach, supra note 88.

Summer 2012] In-State Tuition 17 vests Congress with the power to preempt state law.”99 Federal preemption of state laws may be express or implied, depending on “whether Congress’ command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.”100 Express preemption occurs “when the text of a federal law is explicit about its preemptive effects.”101 Implied preemption, however, is often less clear.

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