Giving Illegals the Waive

On July 23, the Texas Attorney General wrote the state House of Representatives to explain why Texas provides in-state tuition to illegal aliens. He argued that a) the federal government doesn’t define “postsecondary education benefit” and b) the courts have yet to decide on this issue.

Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 holds 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.”

However, Texas state law allows illegal immigrants to apply for in-state tuition rates at Texas colleges provided that they

• “graduated from a public or private high school” or received a high school diploma equivalent in Texas, and
• had continuous residency in Texas for “three years preceding the date of graduation or receipt of the diploma equivalent, as applicable” and for “the year preceding the census date of the academic term in which the person is enrolled in an institution of higher education.”

Also, the applicant must sign an affidavit “stating that the person will apply to become a permanent resident of the United States as soon as the person becomes eligible to apply.”

While some argue that these provisions contradict federal law, Lone Star State Attorney General Greg Abbot argued this month that federal legislation is too vague to judge. “We are not aware of any federal agency that has administratively defined these two terms [‘postsecondary education benefit’ and ‘residency’]; nor are we aware of any federal court or state supreme court that has construed these terms or considered the substantive application of [this law] to a statute similar to Texas statutes,” he wrote.

Abbot also argued that there is only one judicial decision on record—Martinez v. Regents of University of California—and that this decision is pending before the California State Supreme Court.

In 2005 out-of-state families sued California for providing in-state tuition to non-citizens while denying equal treatment for out-of-state applicants desiring to attend University of California schools. As Accuracy in Academia has documented the California dispute revolved around the waiver process which granted in-state tuition to both foreign nationals and illegal immigrants who first attended a California public high school for three years.

“In the 2006-07 school year, 1,639 UC undergraduate and graduate students received in-state tuition on under AB 540 provisions,” reported Los Angeles Times writer Anna Gorman this January. “Of those about 70% were here legally, while the others were potentially undocumented, in the process of obtaining residency or their status could not be determined, according to University officials.”

In the July letter Abbot argued that Texas cannot predict how the federal or state courts would judge Texas law given the “paucity of judicial precedent” provided by Martinez v. UC Regents.

“Thus,” he wrote, “while a federal or state court in Texas, following the reasoning of an intermediate California state appellate court decision, could find that 8 U.S.C. fj 1623 preempts Education Code sections 54.052(a)(3) and 54.053(3) to the extent of the conflict with the federal law, given the paucity of judicial precedent, this office cannot predict with certainty that a court would so find.”

Answering a different question, Abbot maintained that residency requirements did not violate the Equal Protection Clause by discriminating between illegal aliens and U.S. citizens because these prerequisites are “reasonable requirements that serve Texas’s [sic] legitimate or substantial interest in assuring that only bona fide residents that graduate or receive diplomas from Texas high schools are eligible for in-state tuition.” He also wrote that “Nonresident United States citizens can obtain the benefit of [Texas provisions] by graduating from a Texas high school….” and fulfilling the residency requirements outlined above.

In other words, the Texas Attorney General holds that in-state tuition should be awarded based on where students lived and received their diplomas rather than whether they are U.S. citizens.

Does Abbot’s argument hold water? You can read his argument here.

Bethany Stotts is a staff writer at Accuracy in Academia.