Victory For Undocumented Immigrants!!!

                              Victory For Undocumented Immigrants!!!

Today, November 11, the California Supreme Court issued a ruling that provides a striking victory of those who care about undocumented immigrants. In a unanimous decision, the court ruled that AB 540 does not violated federal law.

Justice

AB 540 was adopted by the California Legislature, and signed by the Governor, in 2001. This bill became Section 68130.5 of California's Education Code. A central feature of the law is that undocumented immigrants may, under certain circumstances, pay the lower in-state tuition while attending California's public colleges and universities.

In general, to qualify for this benefit, undocumented immigrants must meet the following three requirements:

- Have attended highschool, in California for three years

- Have received a highschool diploma in California and

- If the student is an undocumented alien, he or she must submit a signed affidavit saying that he or she has applied for legal residency in this country, or will do so as soon as it is legal for them to do that. (Some times, at first, they are too young to apply for legal residency on their own.)

 Opponents of AB 540 claimed in court that this law violates United States Code section1623. This section of federal code, created by Congress says, in part, that an alien, not lawfully present in this country, shall not be eligible, on the basis of residence, for any college benefit unless a US citizen or national is eligible for that same benefit. Opponents of AB 540 claimed that a citizen residing in Vermont, for example, cannot get the lower tuition that undocumented immigrants living in California might be eligible for under AB 540. They said this violates the above provision of section 1623.

However, the supporters of AB 540 pointed out that California's in-state tuition rate is available to US citizens and legal permanent residents, living outside California who meet the first two requirements above. For example, according to the University of California, in the 2006-2007 school year, roughly 1,200 citizens and legal residents, who live in another state, got in state tuition in California under AB 540. (That, reportedly is about 2/3 of all those receiving that benefit under AB 540 that year.) For example, a US citizen student might have lived with his family in California while getting his or her highschool education. Then his family may have moved to Vermont. If that student wanted to attend UC Berkeley, he or she could do so and pay California's in state tuition rate.

Largely, on this basis the court ruled that eligibility for in state tuition rates, under AB 540 is not based on residence. Therefor, California could offer in state tuition to undocumented immigrants, who meet the above three criteria, without violating United States Code section1623.

The opponents of AB 540 attacked the law on other grounds as well. They said AB 540 violates another federal law (Title 8 U.S.C. Section 1621) This federal law says in part:

Notwithstanding any other provision of law and except as provided in subsections (b) and (d) of this section, an alien who is not—

 (2) a non-immigrant under the Immigration and Nationality Act [8 U.S.C. 1101 et seq.], or

(3) an alien who is paroled into the United States under section 212(d)(5) of such Act [8 U.S.C. 1182 (d)(5)] for less than one year,

is not eligible for any State or local public benefit (as defined in subsection (c) of this section).

In addition, the opponents claimed that AB 540 violates the implied intention of federal law. They also claimed that AB 540 violates the privileges and immunities clause of the 14th amendment to the US Constitution. Article IV of the US Constitution says:

The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

The 14th amendments builds on this principle by saying:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

The opponents of AB 540 appear to have claimed that granting in state tuition rates to undocumented immigrants, and not to citizens from other states, violates the above provisions. But as we said earlier some citizens of other states do qualify.

The Supreme Court found all of these arguments without merit. The fact that the decision was unanimous is particularly gratifying.

So, AB 540 remains in force.

You may read the entire court decision by clicking on the link at the end of this article. Then scroll down to and click on the link at the bottom of the web based version of this article.

Here is the link to start: http://calcomui.org/nwsflsh111510.html

Boyce Hinman

California Communities United Institute