California’s Illegal Nanny-State

The debate over illegal immigration—a culture war fought on the dual fronts of terminology and selective media coverage—reached another milestone this September, when the California state appeals court decided that a class-action lawsuit represented by the Immigration Reform Law Institute (IRLI) was improperly dismissed by the Yolo County superior court. The out-of-state plaintiffs filed suit in 2006 after California passed a law providing in-state tuition for exemption holders, including foreign nationals and illegal immigrants.

The complaint (pdf), issued by IRLI, argues that the California statute violates federal law and the U.S. Constitution by

a.) ignoring a Congressional statute that makes it “a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits;” and
b.) because it exempts “illegal aliens residing in California from paying nonresident tuition without conferring the same benefit on U.S. citizens/students from other states.”

The “revival” of the case, as some are calling it, could have momentous effects on the immigration debate, according to Mike Hethmon of IRLI, as the Contra Costa Times (CCT) reports. “This goes well beyond post-secondary education benefits,” Hethmon told CCT reporter Matt Krupnick. “This is potentially a very sweeping decision in all areas.”

Universities affected by the lawsuit include the University of California, California State University, and each of California’s 109 community colleges. The contended statute, which has been in effect since 2001, grants preferential college tuition to any student provided that they have attended a California high school for the previous three years.

“To be eligible for the exemption, undocumented immigrants must promise to seek citizenship as soon as they are able,” writes Krupnick.

So, if undocumented students receive a public high school education for three years and successfully apply for an exemption, they can receive additional government-discounted college. As IRLI notes, this directly contradicts 8 U.S.C. 1623, passed by Congress in 1998, which forbids local governments from providing post-secondary education benefits to foreigners if the same benefits are not first afforded to all U.S. citizens.

Section 1623 states that

“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.”

Krupnick offered some illuminating statistics about how foreign-born residents, legal and illegal, have been taking advantage of the 2001 law. “Attorneys and spokespeople for the schools said thousands of citizens whose families moved to California relatively recently also use the exemptions. Of the 1,639 UC students who received exemptions in 2006-07, 271 were classified as ‘potential undocumented’ immigrants,” Krupnick writes.

“Community-college leaders estimated that their 109 schools granted 19,300 exemptions last year,” he writes. (Exemption-holders also include foreign nationals who are living in the U.S. legally).

“About 10 percent are believed to be U.S. citizens.”

Krupnick later identified the source of this 10 percent estimate as the California state chancellor’s office. Clearly, the California state government is fully aware of the consequences of its policies.

According to the U.S. Census Bureau, of the 21.8 million non-citizens currently residing in the U.S. who entered the country between 1970 and 2006

• 12.9 million are of Hispanic origin;
• 3.4 million are non-Hispanic whites; and

• 5.5 million are from non-Hispanic minorities.

(Non-citizens in this case would also include those individuals legally residing within the United States, but who have not been naturalized, such as green card holders).

Within America’s Hispanic non-citizen population, 16.5 million arrived since 1990, with 8.4 million of them entering the country between 2000 and 2006—compared to 8.1 million in the previous decade—according the 2006 U.S. Census.

California has the largest Hispanic population within the United States, followed by Texas, Florida, New York, and Illinois, according to 2006 U.S. Census data. But California wins by a long shot, with 13 million Hispanics—compared to Texas’ 8.4 million Hispanics.

Regardless of applicants’ immigration status, the 90 percent exemption figure cited by Krupnick in the September article would represent about 17,370 non-Americans—in just one semester—whom the California community colleges system had preferred above America’s out-of-state citizens.

The number of exemption-holders who are illegal immigrants remains difficult to estimate, especially because collecting data on a resident’s “documentation” status seems a verboten topic, especially for the U.S. Census Bureau. “The Census Bureau does not ask about legal (migrant) status of respondents in any of its survey and census programs,” reads the Census Bureau website, which points out that there is no “legislative mandate” from Congress for it to do so.

However, a few other news stories, such as Krupnick’s, offer a glimpse into this taboo territory.

In Postville, Iowa, this May, an immigration raid on an Agriprocessor plant nearly brought the small town to a halt. The raid incarcerated “more than 10 percent of the town’s population of 2,300,” according to Washington Post writer Spencer S. Hsu, whose article insinuated that the raids were a destructive attempt by President George W. Bush to win cheap political points.

“Half of the school system’s 600 students were absent Tuesday, including 90 percent of Hispanic children, because their parents were arrested or in hiding,” he writes.

In last month’s Mississippi immigration raid, the descent of Immigration and Customs Enforcement (ICE) officials upon the town of Laurel wreaked similar havoc upon the local school district. “The superintendent of the county school district said about half of approximately 160 Hispanic students were absent Tuesday,” wrote Associated Press reporter Holbrook Mohr.

“Roberto Velez, pastor at Iglesia Cristiana Peniel, where an estimated 30 to 40% of the 200 parishioners were caught up in the raid, said parents were afraid immigration officials would take [the children],” he wrote.

Bethany Stotts is a staff writer at Accuracy in Academia.

Bethany Stotts