17 September 2008

In State Tuition For Non-Citizens Illegal?

An intermediate appellate court in California ruled yesterday that federal law prohibits public colleges from allowing non-citizens to pay in state tuition, even if they are de facto residents of the state.

Colorado has recently faced similar disputes, which were resolved generally in favor of the students seeking in state tuition.

The California ruling is not directly applicable to Colorado and other states, but is persausive authority as other states interpret federal limitations on grants of in state tuition.

Particularly of concern is what exactly public college and universities must do to determine the state residecy of its students, and where the line between a non-residency related tuition break, and one that simply grants de facto in state status to undocumented resident is drawn.

One response could be to eliminate in state tuition preferences for institutions where this would not make much of an economic impact. Less selective high education institutions typically have very few out of state students. For example, 92% of Metropolitan State College of Denver students are residents of the Denver Metropolitan area, and many of the rest of Colorado residents. Moreover, 90% or more of alums stay in Colorado where they contribute to the economy, which is the point of encouraging in state students for the state.

While out of state tuition may be necessary at flagship institutions, like CU-Boulder, where 41% of students are from out of state, the number of public colleges in Colorado where this is concern is small.


Michael Malak said...

This gets into the distinction between a federal citizen and a state citizen.

If a state were to grant state citizenship and voting rights to an immigrant who the federal government declares is here illegally (i.e. a non-federal citizen), it seems to me the cited federal statute barring states from granting in-state tuition to such a state citizen would violate the Tenth Amendment.

But no court would agree with me, as the courts have interpreted the Commerce Clause to nullify the Tenth Amendment.

Michael Malak said...
This comment has been removed by the author.
Andrew Oh-Willeke said...

More importantly, Congress is given the express power to regulate immigration and naturalization.