The Los Angeles Times has this story about a pending California Supreme Court case, Martinez v. Board of Regents of the University of California, that may be of interest in Texas.

The issue involves in-state tuition discounts for public university students. The article notes that ten states, including Texas, offer a discount to in-state residents regardless of citizenship status:

The California Supreme Court case revolves around a 2001 state law, known as AB 540, that permits the tuition breaks. Under the law, illegal immigrant students qualify for in-state rates if they attended a California high school for three years, graduated here and signed an affidavit saying they will apply for permanent residency as soon as they are eligible. The law has remained in effect during the legal challenge.

The plaintiffs argue that the California law violates a federal immigration statute by offering tuition discounts to illegal immigrants on different terms than to U.S. citizens who happen to reside in another state.

Texas has a similar law. And, in fact, a member of the Texas House of Representatives (Rep. Leo Berman of Smith County) has recently requested a Texas AG opinion on whether Texas is also in violation of federal law. (( Like the California law, the Texas statute that permits undocumented immigrants to be classified as residents for tuition purposes was passed in 2001. I haven’t investigated how close the two statutes are in structure. ))

Back to California…

Opponents argue that the California law violates the federal Illegal Immigration Reform and Immigrant Responsibility
Act of 1996
, which provides:


(a) In General.–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.

California counters that its law does not assign lower tuition solely on the “basis of residence” (which federal law prohibits) and that its statute’s requirements can be met just as well even by U.S. citizens.

But Ethan Schulman, who represents the University of California, said California’s law was carefully crafted so it complied with federal law. U.S. citizen students are also eligible for in-state tuition, if, for example, they are from another state but attended a boarding school in California or if they attended high school here but then moved away for college and returned to the state for graduate studies.

In the 2006-07 school year, 1,639 UC undergraduate and graduate students received in-state tuition under AB 540 provisions. 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.

For that reason, California argues, its law does not fall within the preemptive reach of this federal statute.

The trial court sided with the university, dismissing the case. The intermediate court of appeals, reversed and ruled that the California statute violated federal law. The university petitioned the California Supreme Court, which has now granted review in the case. (( Perhaps it’s a tip-off of how the California court is thinking about the case, but — while granting the petition filed by the university appellants — the court also denied a cross-petition filed by Martinez. ))


The plaintiffs here are U.S. citizens that resided outside of California and, accordingly, paid higher out-of-state tuition rates.

Here’s the appellate law question: What standing do these plaintiffs have and (the wrinkle) does their standing depend on what relief they seek?

In federal courts, standing usually requires (1) a legally cognizable “injury” that (2) is caused by the defendant and (3) that can be redressed by the relief sought. Most states have similar limitations on standing.

How were these particular out-of-state students injured? If the “injury” is that they paid higher tuition rates than they themselves should have, it seems that the proper relief would be to strike down California’s ability to impose higher out-of-state tuition on U.S. citizens. That would actually redress an injury. But that relief (wait for it)… would not raise the tuition on illegal immigrants. It would instead lower everyone to the same level, reducing the university’s total tuition take. (( Actually, this would still leave at least one class of people subject to “out-of-state” tuition — residents of other states who are not U.S. citizens. That’s an odd result, but it seems consistent with the federal statute. )) So I suspect that’s not what the plaintiffs here seek. (( It’s also a solution that would in practical terms punt to the California Legislature to decide how it wants to address this problem. California could just scrap the idea of out-of-state tuition and slightly raise all the rates. Or it could tweak the qualifications to comply with the decision. ))

If the plaintiffs ask the court to raise someone else’s tuition, it’s not clear to me that they have standing. If the plaintiffs’ injury is financial, the remedy of raising someone else’s tuition does not “redress” it. (If the “injury” is instead psychological, then it’s not clear to me that it’s a legally cognizable injury for a violation of this statute.)

The plaintiffs seem aware that there is a standing problem at the heart of this case, and they have asked for reimbursement of the additional tuition that they paid as out-of-state students. That’s the tension here between the legal case and the political fight. I’m not sure how these plaintiffs get a tuition refund (i.e., that their tuition is lowered) while at the same time getting a court ruling that raises the tuition on others. It seems like the courts can only award one but not the other.

What the courts can do here is punt this back to the legislature. That seems pretty likely.

Even if I cannot predict how the California Supreme Court will resolve this one, I can predict that we’ll be hearing much more about it during the Texas legislative session this spring — especially when Attorney General Abbott ultimately responds to Rep. Berman’s opinion request.