Affirmative Action Gone Haywire: Why State Laws Granting College Tuition Preferences to Illegal Aliens are Preempted by Federal Law

BYU Education and Law Journal, Vol. 2, 2009

52 Pages Posted: 3 Dec 2008

Date Written: December 1, 2008

Abstract

This article discusses the case of Martinez v Regents of University of California, a recent California appellate court decision with far reaching implications for illegal aliens in ten states. In defiance of federal immigration law, ten states enacted legislation that forces taxpayers to subsidize the post-secondary education of adult illegal aliens by making them eligible for college in-state tuition. Federal immigration law forbids states from providing postsecondary education benefits to illegal aliens on the basis of state residence unless the same benefit is extended to U.S. citizens from out-of-state without regard to residence. If a state does offer postsecondary education assistance to illegal aliens, the state law must be clearly written to affirmatively alert taxpayers that state funds are being used to provide benefits to illegal aliens. The primary claim by proponents of these state enactments is that federal law is not conflicted because in-state tuition eligibility is not a postsecondary education benefit.

In Martinez v Regents of University of California, a state appellate court held that in-state tuition is indeed a postsecondary education benefit, and that California Education Code Section 68130.5 uses convoluted language to disguise the fact that taxpayer funds are being diverted to subsidize the postsecondary education of adult illegal alien college students. The court unanimously held that the California law granting in-state tuition to illegal aliens thwarts the will of congress and is preempted by federal law.

This article provides a brief history of the California law granting resident tuition to illegal aliens and reviews the appellate court's preemption analysis in Martinez. The analysis from Martinez is then applied to similar laws in nine other states that also grant in-state tuition to illegal aliens to establish that they are all null and void. The article concludes with persuasive policy arguments for why taxpayers should not be required to subsidize the college education of adult illegal aliens.

Keywords: Martinez v. Regents of University of California, illegal aliens, illegal immigration, in-state tuition, preemption, California Education Code 68130.5, 8 U.S.C. 1623, 8 U.S.C. 1621, post-secondary education benefit, De Canas, Plyler, Day v. Bond, AB 540

JEL Classification: J71,J78

Suggested Citation

Kasarda, Ralph W., Affirmative Action Gone Haywire: Why State Laws Granting College Tuition Preferences to Illegal Aliens are Preempted by Federal Law (December 1, 2008). BYU Education and Law Journal, Vol. 2, 2009. Available at SSRN: https://ssrn.com/abstract=1309865

Ralph W. Kasarda (Contact Author)

Pacific Legal Foundation ( email )

930 G Street
Sacramento, CA 95814
United States
916-419-7111 (Phone)

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