Contending that they are illegally charged higher tuition and fees than undocumented immigrants, a group of out-of-state students and parents filed a class-action lawsuit Wednesday against California's public university and community college systems.
The suit, filed in Yolo County Superior Court, challenges practices based on 2001 state legislation that allows certain undocumented immigrants to pay the same charges for college as other California students. California is one of at least nine states that permit some undocumented immigrants to pay in-state fees, an issue that has drawn fire from advocates of tougher policies against illegal immigration.
The suit contends that 60,000 out-of-state students at University of California, California State University and public community college campuses have illegally been required in recent years to pay higher, nonresident charges. For example, out-of-state undergraduates at UC campuses are paying an average of $24,589 to attend this year, versus the $6,769 charged students who qualify for in-state fees.
In California, the number of undocumented students paying in-state fee levels is believed to be by far the highest at community colleges, but their number, estimated at 15,000, is well below 1% of overall enrollment at the two-year schools. At UC last year, 407 students were counted as "potentially" undocumented immigrants. Cal State provided no estimate.
No specific amount of damages is sought in the suit, but the lead lawyer for the group of 42 named plaintiffs, Redwood City attorney Michael J. Brady, said the amount could total "hundreds of millions" of dollars.
Among the plaintiffs are former San Diego County Rep. Brian Bilbray, the Republican running for the seat vacated by Rep. Randy "Duke" Cunningham, who recently pleaded guilty to corruption charges. Bilbray has been active in efforts against illegal immigration. Also named are Bilbray's two children, Briana and Patrick, who reportedly had to pay out-of-state tuition at San Diego City College after moving back to California from Virginia.
Along with seeking compensation for the out-of-state plaintiffs, the case could galvanize critics of illegal immigration who want to do away with the provisions granting in-state rates for qualifying undocumented students who attended California high schools.
"We think this could be a major, precedent-setting case," said Ira Mehlman, a spokesman for the Federation for American Immigration Reform, a Washington-based group that lobbies for tighter immigration restrictions. Providing in-state fees for undocumented immigrants "is something that rewards illegal immigration [and] encourages more people to violate the immigration law," Mehlman added.
His organization said it has provided legal advice to the plaintiffs' lawyers in the case filed Wednesday. The organization was also an architect of a similar suit brought in Kansas that was dismissed this summer by a federal district judge but remains under appeal.
Bilbray has served as a lobbyist for the federation. But Mehlman said Bilbray did not initiate the California case.
In addition, a University of Missouri-Kansas City law professor and former Bush administration official, Kris Kobach, is serving as a lawyer for the plaintiffs in both the Kansas and California cases.
Immigration rights advocates expressed support for the California law. John Trasvina, senior vice president for law and policy with the Mexican American Legal Defense and Educational Fund, said the states providing similar tuition breaks to undocumented immigrants are "a real tremendous cross-section of the country. They range from California and Texas to Kansas and Utah.... It's rare to have a consensus of opinion among those states. They are very red and very blue states, but each state sees a benefit."
Trasvina called the suit "a mean-spirited effort to deny undocumented students an education."
The lawsuit argues that California's law violates, among other things, federal immigration reform legislation passed in 1996. The suit interprets the federal law as requiring states that provide in-state rates to undocumented immigrant students to offer the same benefit to out-of-state students.
"The key violation is providing a special benefit to someone unlawfully in the United States," Brady said. He contended that California officials are flouting the concepts of fair protection and fairness by allowing "illegal aliens to get greater benefits than American citizens attending school here."
Leaders of California's public colleges and universities defended their policies, known as AB 540 exemptions after the bill that authorized it.