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California Supreme Court on in-state tuition
"Today, the California Supreme Court upheld the provisions of the California state statute according undocumented students and others in-state resident tuition status, and overturned the earlier decision of the Appellate Court, which had held that the provision violated state and federal law.
The Supreme Court held, “Because the exemption is given to all who have attended high school in California for at least three years (and meet the other requirements), and not all who have done so qualify as California residents for purposes of in-state tuition, and further because not all unlawful aliens who would qualify as residents but for their unlawful status are eligible for the exemption, we conclude the exemption is not based on residence in California.
Rather, it is based on other criteria. Accordingly, section 68130.5 does not violate section 1623.
We also conclude plaintiffs’ remaining challenges to section 68130.5 lack merit. Specifically, sect ion 68130.5 does not violate another federal statute (8 U.S.C. § 1621 (section 1621)), is not impliedly preempted by federal law, and does not violate the privileges and immunities clause of the Fourteenth Amendment to the United States Constitution.
We reverse the judgment of the Court of Appeal, which had found section 68130.5 invalid on each of these grounds.” The decision was a blow to conservative lawyers nationally, who had brought similar suits in Texas and Nebraska state courts on similar theories.
Michael A. Olivas, a University of Houston law professor who helped draft several of these statutes and who has assisted states in their defense, said, “This case, as long as it has taken, should discourage nativists from continuing to clog the courts with these nuisance suits. It has always been clear that Congress allowed the states to enact their own laws concerning who gets resident tuition and who does not, as has the Department of Homeland Security.” He added, “Now, Congress should enact the DREAM Act and comprehensive immigration reform, to resolve these issues once and for all.” In September, the U.S. Senate did not reach the 60 votes it needed to enact the DREAM Act, although Sen. Harry Reid has promised to bring it back in the lameduck session. The California statute had been designed to allow those who attended California high schools for three years and graduated to establish in-state residency, and was even more widely used by permanent residents and citizens, who were more than 80% of the recipients of this status. As one example, of the 72 students enrolled at UC-Santa Barbara who were granted this status, only three were undocumented." [Summary by Prof. Michael A. Olivas, Nov. 15, 2010.]