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«IN-STATE TUITION FOR UNDOCUMENTED STUDENTS: FUELING THE STATE-FEDERAL BATTLEGROUND Jennifer Joy Lee* ABSTRACT In the last decade, state legislatures ...»

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28 Virginia Journal of Social Policy & the Law [Vol. 19:3 without being California residents. Under the first scenario, “some students who live in an adjoining state or country are permitted to attend high school in California in some circumstances, even though they are not California residents.”191 Under the second scenario, “the children of parents who live outside of California but who attend boarding schools in California might attend California high schools for three years, yet not be California residents.”192 Finally, “those [students] who attended high school in California for three years but then moved out of the state and lost their residency status would apparently be eligible for the exemption if they decided to attend a public college or university in California.”193 It is true that the number of students who fit into one of these three categories is small. In fact, the defendants in Martinez offered state laws and empirical studies linking high school attendance in California with residency in California.194 However, even if there were a perfect correlation between A.B. 540’s requirements and residency, the fact that a criterion is perfectly correlated with residence does not make that criterion itself “residence.” The federal ban on in-state tuition benefits is triggered when states grant such benefits on the basis of residence, plain and clear. As the Supreme Court of California noted, “[i]f Congress had intended to prohibit states entirely from making unlawful aliens eligible for in-state tuition, it could easily have done so,” for instance, by providing that “an alien who is not lawfully present in the United States shall not be eligible for a postsecondary education benefit.”195 In this particular statute, however, Congress specifically referred to residence, and not some form of surrogate for residence, as the basis for the prohibition.196

2. No Implied Preemption

With regard to the question of implied preemption, proponents of A.B. 540 focus once again on the plain language of the statutes. After all, when Congress speaks, we must assume that it intends what it says.

Hence, Congress’s intent “primarily is discerned from the language of the preemption statute and the ‘statutory framework’ surrounding it.”197 A facial comparison of A.B. 540 with §§ 1621 and 1623 reveals neither field occupation nor conflict preemption. Though the plaintiffs in Martinez, 241 P.3d at 864.

Id.

Id.

See Martinez v. Regents of Univ. of Cal., 83 Cal. Rptr. 3d 518, 535–37.

Martinez, 241 P.3d at 864 (emphasis added) (internal quotations omitted).

Id. at 864.

Medtronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996) (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 111 (1992)) (Kennedy, J., concurring in part and concurring in the judgment).

Summer 2012] In-State Tuition 29 Martinez cited §§ 1601(2)(B) and 1601(6) for the overall purpose of § 1623,198 the Supreme Court of California held that “the general policy in section 1601 cannot change section 1623’s plain language or Congress’s specific charge in this regard.”199 Congress could not impliedly prohibit what it expressly permitted in §§ 1621 and 1623.200 a. No Implied Preemption: A.B. 540 Does Not Invade a Field Occupied by the Federal Government The opinion of the U.S. District Court for the Eastern District of Virginia in Equal Access Education v. Merten201 supports proponents’ argument that A.B. 540 does not invade a field occupied by the federal government. In upholding Virginia’s policy of denying undocumented immigrants admission to state universities, the court distinguished the subject of student eligibility for “post-secondary monetary assistance,”202 a subject governed by PRWORA, from the subject of student admissions to colleges or universities, the issue presented by the case. The court held that “access to public higher education is not a benefit governed by PRWORA, nor is it a field completely occupied by the federal government.”203 The defendants in Martinez cited this case for the proposition that A.B. 540’s exemption from nonresident tuition is not a “benefit” within the meaning of the federal law because it does not involve “post-secondary monetary assistance.”204 Assuming this is the case, then exemption from nonresident tuition is also “not a field completely occupied by the federal government.” As mentioned earlier, however, neither the California Court of Appeal nor the Supreme Court of California is keen on this reading.205 b. No Implied Preemption: A.B. 540 Neither Conflicts with Congress’s Purpose Nor Is a “Regulation of Immigration” While critics cite LULAC II to argue that A.B. 540 conflicts with federal law regulating immigration and is itself a “regulation of immigration” under the first DeCanas test,206 the provisions struck down by the District Court in LULAC II are distinguishable from A.B. 540.

Sections 5 and 6 of California’s Proposition 187 broadly deny public Martinez, 241 P.3d at 864; see 8 U.S.C. § 1601(2)(B), (6).

Martinez, 241 P.3d at 864.

Id. at 869.

305 F. Supp. 2d 585 (E.D. Va. 2004).

Id. at 605.

Id.

Martinez v. Regents of Univ. of Cal., 83 Cal. Rptr. 3d 518, 532 (Cal. Ct. App.

2008).

See Martinez, 241 P.3d at 868; Martinez, 83 Cal. Rptr. 3d at 543–45.

See Kobach, supra note 88, at 516.





30 Virginia Journal of Social Policy & the Law [Vol. 19:3 social services and publicly-funded health care to “an alien in the United States in violation of federal law.”207 The District Court observed that the term “an alien in the United States in violation of federal law” is “vague” and “stands alone without a definition.”208 As a result, state law required state agents to make their own judgments to determine who is and who is not “an alien in the United States in violation of federal law.” By contrast, A.B. 540 provides: “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, who meets all of the following requirements shall be exempt....”209 By adopting Congress’s classifications, the California State Assembly resolved the problem identified in LULAC II. Moreover, while holding that California is “powerless to enact its own legislative scheme to regulate alien access to public benefits,” the court stated that “[California] can do what the [PRWORA] permits, and nothing more.”210 The Supreme Court of California thus concluded that “the [LULAC II] opinion just brings us back to the question of what section 1621 permits. As relevant here, [LULAC II] is silent on that question.”211 While critics could point to United States v. Arizona,212 the Ninth Circuit case that upheld a preliminary injunction blocking enforcement of Arizona’s S.B. 1070, to make conflict preemption and “regulation of immigration” arguments with respect to A.B. 540,213 the Arizona and California state laws and their relationships to the respective governing federal laws are distinguishable.

A.B. 540 sets forth four criteria under which undocumented immigrants may qualify for in-state tuition at California’s public universities and community colleges. The provision, which makes no mention of the word “residence,” could be reasonably interpreted to fall within the savings clause of § 1623(a), which limits its general prohibition to laws granting postsecondary education benefits “on the basis of residence within a State.”214 By contrast, sections 2(B), 3, and 6 of Arizona’s S.B. 1070 are much more sweeping, placing broad mandates onto state law enforcement officials. The existence of a comparable savings clause in the League of United Latin Am. Citizens v. Wilson, 997 F. Supp. 1244, 1250 (C.D. Cal. 1997).

Id. at 1256.

CAL. EDUC. CODE § 68130.5(a) (West 2012) (emphasis added).

LULAC II, 997 F. Supp. at 1261 (emphasis added).

Martinez v. Regents of Univ. of Cal., 241 P.3d 855, 869 (Cal. 2010).

641 F.3d 339 (9th Cir. 2011).

See supra notes 152–60 and accompanying text.

Martinez, 241 P.3d at 863–64.

Summer 2012] In-State Tuition 31 Immigration and Nationality Act has been a subject of debate. Arizona argues that 8 U.S.C. § 1357(g)(10)(B) is the operative savings clause with respect to S.B. 1070.215 Only if Congress is “sufficiently clear,” the State contends, can the federal government limit the enforcement of S.B.

1070 by state officials.216 Section 1357(g)(10) provides:

Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State... otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.217 The term “cooperate,” however, is undefined in the statute and subject to a number of different interpretations. Thus, the broad mandates of S.B. 1070 sections 2(B), 3, and 6 do not fit within the “cooperate” provision of subsection 1357(g)(10)(B) in the same way that California’s A.B. 540 facially complies with the “residence” prohibition of subsection 1623(a). In fact, the New York City Bar Committee on Immigration and Nationality Law has determined that “[n]o such savings clause exists with respect to those federal civil powers which Arizona would seek to exercise under S.B. 1070.”218

III. THE COURT SPEAKS: TWO 2011 CERTIORARI DECISIONS AND

THEIR BEARING ON THE SUCCESS OF PREEMPTION

CHALLENGES TO A.B. 540 AND ITS PROGENY The fact that the Supreme Court granted certiorari to review Arizona’s S.B. 1070, but denied certiorari in the case of California’s A.B.

540, weighs against a finding of preemption of the California law. Both laws relate to undocumented immigrants, are tremendously controversial,219 and are challenged on grounds of federal preemption.

Brief for Petitioners at 8, Arizona v. United States, No. 11-182 (filed Feb. 6, 2012), 2012 WL 416748 at *10–11.

Id. at 9.

8 U.S.C. § 1357(g)(10) (2006) (emphasis added).

Report on the Constitutionality of Arizona Immigration Law S.B. 1070, COMM. ON IMMIGRATION & NATIONALITY LAW, N.Y.C. BAR 12 n.24 (July 2010), available at http://www.nycbar.org/pdf/report/uploads/20071951-Reporton ArizonaImmigrationLawSB1070.pdf.

See Martinez, 241 P.3d at 859 (stating “[t]his case involves a controversial subject” and “[t]his court has received many briefs making policy arguments for and against section 68130.5’s tuition exemption”); see also Gotthardt, SCOTUS to Decide on Arizona’s Controversial Immigration Law SB 1070, 32 Virginia Journal of Social Policy & the Law [Vol. 19:3 And yet, within a six-month timeframe, the Court permitted the federal government to carry its challenge to S.B. 1070 all the way through, while pushing aside the concerns of out-of-state citizens denied in-state tuition at California’s public universities and community colleges.220 Immediately after enactment of S.B. 1070, the federal government filed three separate lawsuits to block implementation and invalidate the law, flying “squarely in the face of public support for the new laws.” As of April 2011, sixteen states and at least 81 members of Congress have filed amici briefs in support of Arizona’s S.B. 1070. In spite of vast public support for the Arizona law and the emergence of S.B. 1070 copycats throughout the country, the Supreme Court has permitted the federal government to continue its crusade against the law.

One commentator has attributed this result primarily to “liberal jurisprudence,”225 observing that, while California is permitted to “invent[] illogical interpretations” of sections 1621 and 1623, “Arizona’s genuine and non-discriminatory attempt to supplement enforcement is vilified.”226 Kris Kobach has criticized the Obama administration for suing Arizona rather than “welcoming the state’s help enforcing POLITISITE.COM (Dec. 12, 2011), http://www.politisite.com/2011/12/12/scotusdecide-arizonas-controversial-immigration-law-sb-1070/.

See Arizona v. U.S., 132 S. Ct. at 845 (petition for writ of certiorari granted);

Martinez, 131 S. Ct. at 2961 (petition for writ of certiorari denied).

Josh Gerstein, Suing Arizona: The 2012 Impact, POLITICO (Nov. 11, 2011, 7:02 AM), http://www.politico.com/news/stories/1111/68546.html.

Brief of State of Michigan et al. as Amici Curiae Supporting Petitioners, Arizona v. United States, No. 11-182 (filed Feb. 6, 2012), 2012 WL 523350.

Assisted by FAIR, 81 Members of Congress File Amicus Brief in Support of Arizona Immigration Law, PRNEWSWIRE, http://www.prnewswire.com/newsreleases/assisted-by-fair-81-members-of-congress-file-amicus-brief-in-supportof-arizona-immigration-law-98920644.html (last visited Mar. 26, 2012); see, e.g., Brief of Members of Congress and the Committee to Protect America’s Border as Amici Curiae Supporting Petitioners, Arizona v. United States, No.

11-182 (filed Feb. 6, 2012), 2012 WL 523349.

Seth Freed Wessler, Bills Modeled After Arizona’s SB 1070 Spread Through States, COLORLINES.COM (Mar. 2, 2011, 10:33 AM), http://colorlines.com/ archives/2011/03/sb_1070_copycat_bills.html.

When Immigration Preemption is Ignored, NO OIL FOR PACIFISTS, http://nooilforpacifists.blogspot.com/2011/09/when-immigration-preemption-isignored.html (last updated Sept. 29, 2011).

Id.



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