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By NWV News writer Jim Kouri
Posted 1:00 AM Eastern
November 18, 2010

On Monday,the California Supreme Court shocked many legal residents when it unanimously decided that illegal aliens continue to be eligible for in-state college and university tuition rates rather than having to pay the higher out-of state rates charged to citizens who reside in the U.S. legally.

In a ruling announced by Justice Ming Chin, who claims to be a strict constructionist of the U.S. Constitution, the court proclaimed that a California law that guarantees the lower tuition for students who attend California high schools for at least three years and graduate doesn't violate the federal ban on providing illegal aliens with educational benefits based on residency.

In defending the high court's ruling, advocates for illegal aliens in the U.S. pointed out that California is one of several states that permit illegal aliens to take advantage of lower college tuition for students who attend high school and graduate in state. It's believed that close to 30,000 illegal aliens are set to receive in-state tuition, while college-aged citizens from Nevada, Arizona and other states must pay the higher tuition rates.

"This is a clear case of American citizens being punished for being American citizens by a state government, and lawbreakers being given preferential treatment by government bureaucrats and black-robed lawyers," points out political strategist Mike Baker.

"The complainants in the lawsuit contend that the California law usurps a federal prohibition on giving educational benefits based on residency to illegal aliens but not all U.S. citizens. But the court unanimously sided with the lawbreaking illegal aliens in California," Baker said.

College students who are in the country illegally are barred from government financial-aid programs. The U.S. Supreme Court is expected eventually to decide whether the lower tuition rates also violate federal law.

Monday's ruling by the California Supreme Court upholding California's in-state tuition statute ignores both the letter and intent of a law passed by Congress in 1996, charged the Federation for American Immigration Reform (FAIR).


The Court's ruling reverses the earlier unanimous decision of a state appeals court.

In the case of Martinez v. Board of Regents, the California Supreme Court ruled that AB 540 is not expressly preempted by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996, which requires states to make in-state tuition benefits available to all U.S. citizens if they provide such benefits to illegal aliens based on state residence.

The court ruled that California could legally circumvent that congressional intent by offering in-state tuition benefits based on having completed three years and graduating from a California high school. That qualification is easily met by many illegal aliens, while making it impossible for citizens from other states to qualify for the benefit.

FAIR and its legal affiliate, the Immigration Reform Law Institute, helped initiate the suit on behalf of out-of-state students who were denied benefits given to illegal aliens. FAIR president Dan Stein called Monday's ruling "legally flawed and highly political." "The intent of Congress was unmistakable," charged Stein. "In passing IIRAIRA , Congress meant to send a clear message that if a state chose to reward illegal aliens with taxpayer subsidized college tuition, they would have to provide those same benefits 'in no less duration, scope, or amount' to all U.S. citizens regardless of their state residency."

The California legislature in 2001 blatantly attempted to create a loophole in the federal law by using the number of years of high school completed as the basis for conferring tuition benefits on illegal aliens, while denying those benefits to U.S. citizens from other states. In upholding that loophole, the California Supreme Court ignored the intent of Congress to prohibit states from giving post-secondary education benefits to illegal aliens based on residence unless the state gave the same benefit to U.S. citizens.

"It is up to Congress to amend IIRAIRA in a way that precludes states from using the loophole opened by the California Supreme Court. The ruling defies the intent of Congress and allows states to discriminate against law abiding citizens in favor of illegal aliens," declared Stein.

Opponents of this latest ruling said that the California court decision is not likely to have much effect outside of California and the other states that currently offer in-state tuition benefits to illegal aliens.

"Given the fiscal realities faced by state governments and intense public opposition to providing benefits to illegal aliens, it is unlikely that other states are going to be looking for ways to increase the size of their budget deficits.

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California, which now spends $88 million a year on tuition benefits for illegal aliens, and more than $21 billion a year on all benefits and services for illegal aliens and their families, is not the model most states want to emulate," Stein stated.

"The real losers in [Monday's] ruling are the taxpayers of California and thousands of U.S. citizens pursuing their educational goals in California who want nothing more than the same deal illegal aliens get," concluded Stein.

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The Court's ruling reverses the earlier unanimous decision of a state appeals court.