Illegal aliens who attend California schools may soon have to pay nonresident fees.
On Sep. 15, a state appellate court ruled that a lawsuit challenging AB 540, a California law that allows illegal aliens to pay in-state rates, may go forward in Yolo County Superior Court.
In their ruling, the three justices of the Third District Court of Appeal in Sacramento ruled that AB 540 conflicts with federal law, stating that the California law “manifestly thwarts the will of Congress … that illegal aliens who are residents of a state not receive a postsecondary education benefit that is not available to citizens of the United States.“
Though the court mentioned the defendants prefer the term “undocumented students,” it stated that the term “illegal aliens” is technically correct and less ambiguous.
The suit, Martinez v. Regents, was filed in 2005 by out-of-state students who attended California colleges but did not qualify for the AB 540 exemption. Their attorney, Kris Kobach, a professor of law at the University of Missouri at Kansas City, did not return an e-mail message for comment.
Passed in 2001, AB 540 exempts students from paying out-of-state fees if they attend a California high school for at least three years and graduate from a state high school or receive a GED. Students with valid visas are ineligible for the exemption.
Qualifying AB 540 recipients may include illegal aliens, students who attend boarding school in California, and graduate students who attend an out-of-state college, according to UC’s 2008 report on the law.
Nonresident tuition and fees amount to an additional $19,000, according to UC’s admissions web site. Approximately 7 percent of UC Davis students paid non-resident fees in 2007-2008, said UC Davis Registrar Frank Wada.
The University of California plans to appeal the appellate court’s ruling to the California Supreme Court, said UC spokesperson Ricardo Vázquez.
“When AB 540 was being discussed in the legislature, we supported this legislation and we have also supported other legislation similar to this, because through their hard work and perseverance, [undocumented] students have earned an opportunity to attend UC,” he said.
In a press release, UC stated that the AB 540 exemption will remain in effect “until the appeal process is completed and the case is returned to the trial court for further proceedings.“
According to UC’s annual report on AB 540, of 1,246 students who received the exemption, 803 were documented. The number of students receiving the AB 540 benefit has increased an average of 20 percent annually since the 2002-2003 school year.
While all students are required to complete a Statement of Legal Residence form to determine residency, they are not required to inform the university of their immigration status, Wada said. It is unknown how many undocumented students receive the AB 540 benefit at UC Davis, he said.
However, illegal aliens are ineligible for state or federal money, said Katherine Maloney, interim director of financial aid at UC Davis.
In 2007, Governor Arnold Schwarzenegger vetoed a law that would have made illegal aliens eligible for state aid.
Therefore, if AB 540 is struck down, California college educations will become unaffordable for some students, said Miriam Delgado, an immigrant rights activist.
“AB 540 allows undocumented students an opportunity to attend a post-secondary institution. Most of them are first-generation college students. It’s a social disadvantage,” said Delgado, also a senior Spanish and Chicana/o studies major at UC Davis.
But some students contend AB 540 is illegal.
“This issue is not about finance [and] not about race,” said Tierney Burke, internal vice chair of the Davis College Republicans and an undeclared sophomore. “It is simply about adhering to federal law. The path the courts must take is clear: uphold the established precedent.“
PATRICK McCARTNEY can be reached at email@example.com.