Unauthorized Alien Students, Higher Education, and In-State Tuition Rates: A Legal Analysis
Unauthorized Alien Students,
Higher Education, and In-State Tuition Rates:
A Legal Analysis
Jody Feder
Legislative Attorney
American Law Division
Summary
Currently, federal law prohibits states from granting unauthorized aliens certain
postsecondary educational benefits on the basis of state residence, unless equal benefits
are made available to all U.S. citizens. This prohibition is commonly understood to
apply to the granting of “in-state” residency status for tuition purposes. In the 110th
Congress, several bills that would amend this federal law have been introduced (H.R.
Meanwhile, some states have passed laws aimed at making unauthorized state residents
eligible for in-state tuition without violating this provision. This report provides a legal
overview of cases involving immigrant access to higher education, as well as an analysis
of the legality of state laws that make in-state tuition rates available to illegal
immigrants. For a policy analysis of this issue, see CRS Report RL33863, Unauthorized
Alien Students: Issues and “DREAM Act” Legislation, by Andorra Bruno.
As noted above, federal law currently discourages states and localities from granting
unauthorized aliens certain higher education benefits. Specifically, Section 505 of the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) mandates that
unauthorized aliens “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.”1 Although
there is neither report language nor agency regulations available to provide guidance, this
provision appears to be designed to prevent states from offering illegal aliens in-state
tuition at public institutions of higher education. While Section 505 does not explicitly
prohibit states from doing so, the provision could potentially impose a costly penalty on
those who do by requiring them to make cheaper in-state tuition rates available to
nonresidents. Since the enactment of Section 505, there has been debate about whether
1 8 U.S.C. § 1623.
states and localities may offer in-state tuition to unauthorized alien students on some basis
other than residency in order to avoid violating the law. This report provides a legal
overview of cases involving immigrant access to higher education, as well as an analysis
of the legality of state laws that make in-state tuition rates available to illegal immigrants.
Legal Overview
The Supreme Court has, on several occasions, confronted questions regarding access
to education for individuals who are neither citizens or legal immigrants, but these cases
do not directly address whether the government can restrict the access of unauthorized
student aliens to in-state tuition or to higher education more broadly. Nevertheless, these
cases are instructive for purposes of evaluating the legal issues involved in unauthorized
student alien eligibility for higher education admission and/or in-state tuition rates.
Although the Supreme Court has not directly addressed the issue of unauthorized
immigrant access to higher education, the Court has considered the issue of unauthorized
immigrant access to elementary and secondary education. Indeed, in the 1982 Plyler v.
Doe case, the Court held that a Texas statute that would have prohibited unauthorized
student aliens from receiving a free public elementary and secondary education violated
the Constitution.2 In reaching this ruling, the Court determined that unauthorized
immigrants are entitled to protection under the Equal Protection Clause of the Fourteenth
Amendment, which provides that no state shall “deny to any person within its jurisdiction
the equal protection of the laws.”3 Because the Court ruled that unauthorized immigrants
are not a “suspect class” and education is not a “fundamental right” — both findings
would have triggered more intense judicial scrutiny of the Texas statute — the Court
evaluated the Texas statute under a variant of the less stringent rational basis standard of
review, requiring that the statute further a substantial state goal. The Plyler Court,
however, ruled that the state’s interests in enacting the statute — namely, to conserve the
state’s educational resources, to prevent an influx of illegal immigrants, and to maintain
high-quality public education — were not legitimately furthered by the legislation. As a
result, the Court struck down the Texas statute.4
Although the Plyler decision did not explicitly create an entitlement for unauthorized
student aliens to attend public elementary and secondary schools, the case has, in practice,
had the effect of establishing such access to public education, in part because the decision
appears to preclude states from justifying legislation similar to the Texas statute that was
struck down. The logic of the Plyler case, however, does not necessarily extend to
unauthorized immigrant access to higher education. Because Plyler heavily emphasized
the importance of a basic elementary and secondary education, a state could readily
distinguish legislation restricting unauthorized immigrant access to higher education on
the grounds that higher education, unlike elementary and secondary education, is not
essential to “maintaining the fabric of our society.”5 Although the Supreme Court has not
ruled on this question, the distinction between higher education and elementary and public
2 457 U.S. 202 (1982).
3 U.S. Const., amend. XIV.
4 Plyler v. Doe, 457 U.S. at 227-31 (1982).
5 Id. at 221.
education make it appear unlikely that the Court would strike down legislation that
restricted the access of unauthorized student aliens to higher education.
Meanwhile, in Toll v. Moreno,6 the Court considered a challenge to a Maryland state
policy to deny in-state status to non-immigrant aliens holding G-4 visas even if such
aliens were state residents who would have otherwise qualified for in-state tuition rates
at state colleges and universities. Ultimately, the Court held that the state policy was
invalid under the Supremacy Clause of the Constitution, which provides that the laws of
the United States “shall be the supreme law of the land,” and state laws to the contrary are
preempted by federal law.7 Since immigration regulation is an exclusive power of the
federal government, “state regulation not congressionally sanctioned that discriminates
against aliens lawfully admitted to the country is impermissible if it imposes additional
burdens not contemplated by Congress.”8 Because federal law allowed G-4 aliens to
establish residency in the U.S., the Court found that the Maryland policy to deny
residency status for purposes of qualifying for in-state tuition rates conflicted with federal
law and therefore violated the Supremacy Clause.
It is important to note that Toll v. Moreno involved aliens who were lawfully present
in the U.S. and thus may not extend to protect unauthorized student aliens who are denied
state educational benefits such as admission to state colleges and universities or eligibility
for in-state tuition rates. Indeed, as long as a state policy to deny such educational benefits
to unauthorized student aliens is not found to conflict with federal immigration standards,
it is likely to be upheld by the courts, as demonstrated in the Equal Access Education v.
Merten case described below.
Thus far, it appears that only one federal court has addressed the question of whether
it is constitutionally permissible for a state to prohibit unauthorized immigrants from
attending state colleges and universities, let alone from receiving in-state tuition. In Equal
Access Education v. Merten, the plaintiffs claimed that several Virginia public institutions
of higher education had violated the Supremacy, Commerce, and Due Process Clauses of
the Constitution by denying admission to unauthorized student aliens.9 The institutions
adopted this policy in response to a 2002 memorandum from the Virginia Attorney
General that asserted that unauthorized aliens should not be admitted to Virginia’s public
colleges and universities. Although the Court dismissed the Commerce Clause and Due
Process Clause claims,10 it did allow the Supremacy Clause claim to proceed, at least in
part. Since immigration regulation is an exclusive power of the federal government, the
court ruled that the Supremacy Clause would not be violated unless the plaintiffs could
show that the Virginia institutions were using state, not federal, immigration standards in
order to deny admission to unauthorized aliens.11 Although the court ultimately dismissed
6 458 U.S. 1 (1982).
7 U.S. Const. art. VI, cl. 2.
8 Toll v. Moreno, 458 U.S. at 12-13 (citing DeCanas v. Bica, 424 U.S. 351, 358 (1976)).
9 305 F. Supp. 2d. 585 (E.D. Va. 2004).
10 Id. at 608-14.
11 Id. at 608.
the plaintiffs’ Supremacy Clause claims for procedural reasons in a later proceeding,12 the
Equal Access Education case indicates that unauthorized student aliens might have
difficulty in establishing constitutional violations on the part of public institutions that
deny either admission or in-state tuition to unauthorized immigrants.
Legal Analysis of State Laws That Make
In-State Tuition Available to Illegal Immigrants
Other federal litigation regarding unauthorized student aliens has revolved around
the separate question of whether state laws that make unauthorized aliens eligible for in-
state tuition violate Section 505 of the IIRIRA’s prohibition against conferring
educational benefits on the basis of state residency. Indeed, several states have enacted
laws with respect to providing in-state tuition rates for unauthorized alien students.13 For
example, California enacted a law in 2001 that makes unauthorized aliens eligible for in-
state tuition rates at certain state community colleges and universities, but the state statute
bases eligibility on criteria that do not explicitly include state residency. To qualify for in-
state rates, a student must have attended high school in California for at least three years
and graduated from high school. In addition, unauthorized alien students are required to
file an affidavit stating that they have either filed an application to legalize status or will14
file such an application as soon as they become eligible. California officials argue that
by using eligibility criteria other than state residency, their law does not violate the
Section 505 restriction on conferring educational benefits on the basis of state residency.
In what appeared to be the first decision of its kind, a federal court in Kansas
considered whether state laws that make unauthorized immigrants eligible for in-state15
tuition violate Section 505 of IIRIRA. The case, Day v. Sebelius, involved a challenge
to the legality of a Kansas state law that makes unauthorized aliens eligible for in-state
tuition if they attended a Kansas high school for three years, received a high school
diploma or equivalent from a Kansas school, were not a resident of another state, and16
signed an agreement to seek legal immigration status. Specifically, the suit, which was
filed by non-resident students (or parents who support them) who attended Kansas state
institutions but paid out-of-state tuition, alleged that the Kansas law violated, among other
things, Section 505 of the IIRIRA and the Equal Protection Clause of the Constitution.
The court ultimately dismissed six of the seven claims that were asserted in the case,
including the equal protection claim, on the grounds that the plaintiffs lacked the standing
to bring suit. Standing requirements, which are concerned with who is a proper party to
raise a particular issue in the federal courts, are derived from Article III of the
Constitution, which confines the jurisdiction of federal courts to actual “Cases” and
12 Equal Access Educ. v. Merten, 325 F. Supp. 2d 655 (D. Va. 2004).
13 For more information on state legislation, see National Conference of State Legislatures, In-
State Tuition and Unauthorized Student Immigrants, August 26, 2008, [http://www.ncsl.org/
programs /immi g/immi g_InStateT uition0808.htm] .
14 Cal Ed Code § 68130.5.
15 376 F. Supp. 2d. 1022 (D. Kan. 2005).
16 K.S.A. § 76-731a(b)(2).
“Controversies.”17 The case-or-controversy requirement has long been construed to
restrict Article III courts to the adjudication of real, live disputes involving plaintiffs who
have “a personal stake in the outcome of the controversy....”18 Under the Supreme Court’s
jurisprudence, plaintiffs appearing before an Article III court must show three things in
order to meet constitutional standing requirements: (1) he/she has suffered an “injury in
fact” that is concrete and particularized (not common to the entire public), and actual or
imminent; (2) the injury is fairly traceable to the challenged action of the defendant; and
(3) it is likely that the injury will be redressed by a favorable decision.19
According to the Day v. Sebelius court, the plaintiffs failed to establish standing with
respect to most of their claims because the plaintiffs could not demonstrate that they were
injured in fact by the Kansas statute, which did not actually apply to the plaintiffs, who
had paid out-of-state tuition rates both before and after enactment of the statute.20
Furthermore, the court noted that even if the plaintiffs had been found to have suffered
an injury in fact, they had still failed to demonstrate that a favorable court decision with
respect to most of their claims would have redressed that injury. For example, if the court
had found that the Kansas statute violated the Equal Protection Clause of the Constitution,
the plaintiffs would not receive any benefit because the invalidation of the Kansas
legislation would not change the fact that the plaintiffs would still be required to pay out-
of-state tuition rates.21
Although the court rejected six of seven claims on the grounds that the plaintiffs
lacked standing, the court found that the plaintiffs did have standing to sue with regard
to their claim that the Kansas statute violated Section 505 of IIRIRA. The court, however,
dismissed this claim because it found that the plaintiffs did not have a private right of
action, which is a right that authorizes an individual to sue in court. In the statutory
context, administrative agencies, rather than individuals, are typically the only party that
is authorized to bring a lawsuit against entities that violate the law, unless the statute
expressly or impliedly grants a private right of action to individuals to sue to enforce the
statute. Because the Day v. Sebelius court found that IIRIRA neither explicitly nor
implicitly gives individuals a remedy to enforce immigration laws,22 the plaintiffs did not
have a private right of action, and the court dismissed their Section 505 claim. The district
court’s dismissal of the claim was affirmed by a federal appeals court,23 and the Supreme
Court recently declined to consider an appeal.24
Lawsuits that challenge state laws that grant in-state tuition to unauthorized student
aliens may be brought in other states. For example, a California appeals court recently
17 U.S. CONST. art. III, § 2, cl. 1.
18 Baker v. Carr, 369 U.S. 186, 204 (1962).
19 See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
20 Day v. Sebelius, 376 F. Supp. 2d. at 1033, 1039-40.
21 Id. at 1034.
22 Id. at 1039-40.
23 Day v. Bond, 500 F.3d 1127 (10th Cir. 2007).
24 Day v. Bond, 128 S. Ct. 2987 (2008).
reinstated a challenge to the California law, overturning a trial judge’s dismissal of the
suit.25 Although this decision appears to be the first in which a court has found that a state
tuition statute violates Section 505 of IIRIRA, litigation in the case is not yet over, and
plaintiffs in similar lawsuits nevertheless remain likely to face difficulties similar to those
of the Kansas plaintiffs in establishing standing or a private right of action to sue. Given
these difficulties, individual plaintiffs must overcome significant procedural hurdles in
order to successfully challenge such state laws.
In recognition of this problem, a legal advocacy group filed several complaints with
the Department of Homeland Security (DHS) in 2005. In these complaints, the group
argued that certain state tuition laws violate Section 505 of IIRIRA and called on DHS to
enforce the statute against states that offer in-state tuition rates to unauthorized student
aliens since it appears that individuals cannot.26 Thus far, DHS does not appear to have
responded to these complaints. If, however, the agency were to interpret the states’ actions
to be a violation of Section 505, its options could include withholding federal funds from
the states in question or issuing an order that directs the states to comply with the law.
Such action by DHS, if forthcoming, could result in legal challenges by the affected
states. If that were to occur, then it would be up to the federal courts to determine whether
state programs that authorize in-state tuition for unauthorized alien students are a
violation of federal law.
In considering such a question, a court would likely begin by examining the statutory
language at issue. The Supreme Court often recites the “plain meaning rule,” that, if the
language of the statute is clear, there is no need to look outside the statute to its legislative
history in order to ascertain the statute’s meaning,27 and more often than not, statutory text
is the ending point as well as the starting point for interpretation. On its face, the plain
meaning of Section 505 appears clear: unless identical rates are offered to out-of-state
residents, unauthorized aliens are not eligible for in-state tuition rates “on the basis of
residence within a State.” Thus, the statutory language implies that in-state tuition
eligibility may be based on factors other than residency, including factors that are
currently the basis for eligibility under many state statutes. Under this reasoning, a court
might determine that state programs that authorize in-state tuition for unauthorized aliens
are legal as long as eligibility for those programs is based on factors other than residency.
Opponents of this interpretation, however, are likely to argue that certain state eligibility
factors, such as high school attendance within the state, essentially serve as a proxy for
state residency in violation of the congressional intent reflected in Section 505.
25 Martinez v. Regents of Univ. of California, 2008 Cal. App. LEXIS 1425 (Cal. App. 3d Dist.
September 15, 2008).
26 Press Release, Washington Legal Foundation, WLF Files Civil Rights Complaint Against State
of New York Regarding Benefits for Illegal Aliens (September 7, 2005) [http://www.wlf.org/
upload/090705RS.pdf]; Press Release, Washington Legal Foundation, WLF Files Civil Rights
Complaint Against State of Texas Regarding Benefits for Illegal Aliens (August 9, 2005)
[ h t t p : / / www.wl f .or g/ upl oad/ 080905RS.pdf ] .
27 See, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002); Caminetti v. United States,