CA Supreme Court Upholds Tuition Breaks for Illegal Immigrants


On November 15, 2010 the California Supreme Court issued a unanimous decision on college tuition breaks for illegal immigrants that may have ramifications in at least nine other states.  The Court upheld a California statute that exempts resident illegal immigrants from paying nonresident college and university tuition at public institutions under specified condition, meaning that the qualifying illegal immigrants would pay the same lower tuition as California residents who are U.S. citizens.  Under the statute, Education Code § 68130.5(a), a student is allowed to pay the lower in-state or resident tuition if he or she:

• Attends high school in California for three or more years;
• graduates from a California high school or attains the equivalency thereof;
• registers as an entering or currently enrolled student at an accredited institution of higher   education not earlier than the fall semester or quarter of the 2001-02 academic year; and
• if he or she is without legal immigration status, provides an affidavit that he or she has applied or will apply for legal immigration status.

The statute was enacted in 2001 as Assembly Bill 540 and it remains controversial in the State and nationally as it allows resident students illegally in the U.S. to benefit from college and university tuition breaks but not nonresident students who are legally in the country.  In 2005, a group of U.S. citizens who were students paying nonresident tuition at California universities and colleges filed a lawsuit alleging, among other things, that the statute violates a federal law that prohibits states from providing illegal immigrants with any higher education benefit that is not also given to U.S. citizens.  After dismissal of the argument by the lower court, a California Appellate Court agreed that the statute violated the federal law.  However, the California Supreme Court subsequently determined that the federal law was not violated by the statute because the exemption from nonresident tuition applied to all students, citizens and non-citizens, who met the conditions specified in California Education Code § 68130.5(a).  On November 15, 2010 Education Week reported online that the attorney who filed the lawsuit plans to appeal to the U.S. Supreme Court.

On November 16th reported that Illinois, New Mexico, New York, Texas, Utah, Washington and Wisconsin also have laws that allow illegal aliens to pay resident tuition to attend state colleges, as well as Kansas and Nebraska according to a November 16, 2010 article in

The California Supreme Court decision, Martinez v. Regents of the University of California, can be reviewed using the link below.

CA Sup Ct Decision_Nov 15 2010.pdf (177.11 kb)




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