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Out-of-State College Fee for Aliens Said Unconstitutional By a California Court

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A state judge has ruled that California's public universities have violated the constitutional rights of undocumented aliens who live in the state by charging them out-of-state tuition.

Judge Ken M. Kawaichi of the California Superior Court for Alameda County ruled last month in Leticia "A" v. The Board of Regents of the University of California that the public-university system violated the right of the undocumented aliens to equal protection of the laws as guaranteed by the state constitution.

The California system, the largest in the nation, had refused to allow undocumented aliens to prove state residency on the grounds that they were in the country illegally, and therefore automatically ineligible for the reduced college tuition available to state residents.

The California case extends to higher education some of the principles upheld in a 1982 case before the U.S. Supreme Court, which decided that the children of undocumented aliens have a right to a public-school education.

Replicate Elsewhere

In that case, Plyler v. Doe, the Supreme Court held that the equal-protection clause of the 14th Amendment of the Constitution applies to those not legally admitted to the United States as well as to U.S. citizens. The majority ruled that the state of Texas could not exclude undocumented aliens from public elementary and secondary schools solely because they were illegal residents.

The exact number of undocumented aliens affected by the California decision is not known, lawyers for the plaintiffs said.

The successful extension of arguments used in the Plyler case to a suit involving higher education could set an important precedent, the lawyers added. They said they intend to pursue similar cases in other states.

Longtime Residents

The five students represented in Leticia "A" are all longtime residents of California who were brought to the United States by4their parents when they were still children, said Susan E. Brown, a lawyer for the plaintiffs and a staff member with the Mexican-American Legal Defense and Education Fund Inc.

Lawyers from the Multi-Cultural Educational Training and Advocacy Project Inc. and the Bay Area Immigration and Refugee Rights Project of the San Francisco Lawyers' Committee for Urban Affairs also aided in representing the plaintiffs.

"For all intents and purposes," the undocumented students are "much more American than Mexican," Ms. Brown said, noting that none of them has been back to Mexico since they came to this country as children--some as long ago as 15 years.

Sonia "V," for example, was brought to the United States when she was 8 and began her American schooling when she was in the 4th grade. She graduated from high school with a 3.9 grade-point average on a 4.0-point scale, according to court documents. She now has a grade-point average of 4.0 at the University of California-Los Angeles.

Sonia's father earns about $9,000 a year as a gardener, but because of her status as an undocumented alien, Sonia has had to pay out-of-state tuition and is ineligible for state or federal student aid.

$3,500 Difference

Students in the University of California system pay annual student fees of approximately $1,366.50, but out-of-state residents must pay an additional $3,500 in tuition each year. The student fees in the California State University system are about $699 annually, and the out-of-state tuition is approximately another $3,510.

Noted Ms. Brown: "Everybody else has an opportunity--after living in California for more than one year--to prove to the university system that they are a state resident. But these students [undocumented aliens] are automatically classified as nonresidents, no matter how long they've lived here and no matter how many years their parents have paid taxes."

Peter D. Roos, a lawyer for the plaintiffs who is associated with meta Inc., added that such policies deter students from applying to col-lege because they know they cannot afford it.

Ms. Brown noted that many of the plaintiffs in the case have immigration documents pending, but a backlog of immigration cases has kept some of them waiting to have those cases processed for as long as eight years.

Supreme Court Precedent

In Plyler, the Supreme Court's 5-4 majority found that the state had failed to present a reason for treating undocumented children differently from other children that was sufficient to outweigh the harm the children would suffer from a lack of education.

The California judge found in Leticia "A" that if higher education is not a fundamental interest in the state of California, it is at least an "important" interest. Therefore, the judge reasoned, the state is obligated to show that a "substantial state interest" is served by its decision to treat undocumented aliens differently from other students in the educational system. It did not do so, he said.

Defendants' Arguments

Lawyers for the California State University system and the University of California system, the two defendants named in the case, had argued that public universities have a right to charge higher fees to out-of-state residents in order to help share the burden of financing higher education and because those individuals cannot be expected to remain in the state and contribute to its economy after graduation.

Undocumented aliens are especially unlikely to make future contributions, the defendants argued, because they can be deported at any time.

The defendants also argued that a college degree increased the employment opportunities for undocumented aliens, and that by discouraging undocumented students from pursuing such a degree by charging higher tuition, the universities were furthering federal immigration policies that discourage the employment of illegal immigrants.

Judge Kawaichi found, however, that the plaintiffs failed to show how much of the higher-education budget is derived from undocumented aliens. He also noted that Hispanic aliens "were shown by a preponderance of evidence" to tend to remain in the United States, to work and pay taxes, and to attain legal status.

Appeal Uncertain

Gordon Zane, deputy state attorney general, said it is too early to know whether the universities will appeal the decision but added that they will probably ask for a new trial on the grounds that the court erred on the law.

Lawyers for the plaintiffs say they would like the judge's decision to be carried out as soon as possible so that it will help those students who are now trying to decide whether to enroll in college. They also argue that undocumented students should now be eligible for state student aid.

The California Maritime Academy and the California Community College system are affected by the decision, although they were not named as defendants in the case.

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