Ct.App. 3 C054124 Yolo County Super. Ct. No. CV052064. Judge: Thomas Edward Warriner.
The opinion of the court was delivered by: Chin, J.
This case involves a controversial subject: persons unlawfully present in this country. The California Legislature has provided that unlawful aliens are exempt from paying nonresident tuition at California state colleges and universities under certain circumstances. (Ed. Code, § 68130.5 (section 68130.5).) Congress has prohibited the states from making unlawful aliens eligible for post-secondary education benefits under certain circumstances. (8 U.S.C. § 1623 (section 1623).) Plaintiffs challenge section 68130.5's validity, largely on the basis that it violates section 1623. Defendants argue section 68130.5 complies with federal law.
This court has received many briefs making policy arguments for and against section 68130.5's tuition exemption. We have received arguments that section 68130.5 affords deserving students educational opportunities that would not otherwise be available and, conversely, arguments that it flouts the will of Congress, wastes taxpayers' money, and encourages illegal immigration. But this court does not make policy. Whether Congress's prohibition or the Legislature's exemption is good policy is not for us to say. Rather, we must decide the legal question of whether California's exemption violates Congress's prohibition or is otherwise invalid. We must decide the statutory question by employing settled methods of statutory construction.
The main legal issue is this: Section 1623 provides that an alien not lawfully present in this country shall not be eligible on the basis of residence within a state for any post-secondary education benefit unless a citizen or national of this country is eligible for that benefit. In general, nonresidents of California who attend the state's colleges and universities must pay nonresident tuition. (Ed. Code, § 68050.) But section 68130.5, subdivision (a), exempts from this requirement students -- including those not lawfully in this country -- who meet certain requirements, primarily that they have attended high school in California for at least three years. The question is whether this exemption is based on residence within California in violation of section 1623.
Because the exemption is given to all who have attended high school in California for at least three years (and meet the other requirements), and not all who have done so qualify as California residents for purposes of in-state tuition, and further because not all unlawful aliens who would qualify as residents but for their unlawful status are eligible for the exemption, we conclude the exemption is not based on residence in California. Rather, it is based on other criteria. Accordingly, section 68130.5 does not violate section 1623.
We also conclude plaintiffs' remaining challenges to section 68130.5 lack merit. Specifically, section 68130.5 does not violate another federal statute (8 U.S.C. § 1621 (section 1621)), is not impliedly preempted by federal law, and does not violate the privileges and immunities clause of the Fourteenth Amendment to the United States Constitution. We reverse the judgment of the Court of Appeal, which had found section 68130.5 invalid on each of these grounds.
Plaintiffs allege that they are United States citizens who are or were students paying nonresident tuition at a California public university or college, and that they have been "illegally denied exemption from nonresident tuition under California Education Code section 68130.5." They have filed this lawsuit against the Regents of the University of California (Regents) and others, including officials representing the California State University System and the California Community Colleges. The complaint also alleges that "[p]laintiffs intend to and hereby maintain the claims reflected herein as a class action. The plaintiff class consists of thousands of former and current nonresident U.S. citizens too numerous to be practically joined."
The complaint states 10 causes of action. The first eight causes of action allege, in order, that section 68130.5 violates the following legal provisions: (1) section 1623; (2) section 1621; (3) 42 U.S.C. section 1983; (4) the equal protection clause of the United States Constitution; (5) the privileges and immunities clause of the Fourteenth Amendment to the United States Constitution; (6) "field preemption"; (7) the equal protection clause of the California Constitution; and (8) the Unruh Civil Rights Act (Civ. Code, § 51 et seq.). The ninth and 10th causes of action are for injunctive relief and declaratory relief, respectively. Plaintiffs seek a determination that section 68130.5 is invalid on each alleged ground, reimbursement of nonresident tuition fees, damages, and attorney fees.
The defendants demurred to the complaint. The trial court sustained the demurrer without leave to amend and dismissed the action. Plaintiffs appealed.
The Court of Appeal reversed the judgment. It held that plaintiffs had forfeited the claim that they have a private right of action to enforce section 1621 or section 1623 by failing to address the matter in their opening brief, and that they failed to show reversible error in the trial court's denial of certain judicial notice requests. It rejected plaintiffs' arguments that section 68130.5 conflicted with other California statutory provisions, and that it violated the due process clauses of the California and United States Constitutions, the Unruh Civil Rights Act, and article I, section 31 of the California Constitution. But the Court of Appeal also held that section 68130.5 is expressly preempted by both sections 1621 and 1623, that section 68130.5 is also impliedly preempted, that plaintiffs should be allowed leave to amend the complaint regarding their equal protection claim, and that the complaint stated a viable claim that section 68130.5 violates the privileges and immunities clause of the Fourteenth Amendment to the United States Constitution.
Plaintiffs, the Regents, and the California Community Colleges all petitioned for review. We denied the plaintiffs' petition and granted the Regents' and the California Community Colleges' petitions. The Regents' petition presents the issues of whether section 1621 or section 1623 preempts section 68130.5, and whether section 68130.5 violates the privileges and immunities clause of the Fourteenth Amendment to the United States Constitution. The California Community Colleges' petition presents the issue of whether "federal immigration laws preempt California's policy of granting in-state tuition to nonresident high school graduates."
"Each student shall be classified as a resident or nonresident at the University of California, the California State University, or the California Maritime Academy or at a California community college." (Ed. Code, § 68040.) "A student classified as a nonresident shall be required, except as otherwise provided in this part, to pay, in addition to other fees required by the institution, nonresident tuition." (Ed. Code, § 68050.) Thus, nonresidents must generally pay nonresident tuition at public universities and colleges in California. The issue of this case revolves around when, if ever, California may exempt aliens not lawfully present in this country from having to pay nonresident tuition.
In 2001, effective January 1, 2002, the Legislature added section 68130.5 to the Education Code. (Stats. 2001, ch. 814, § 2.) It provides:
"Notwithstanding any other provision of law:
"(a) A student, other than a nonimmigrant alien within the meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States Code, who meets all of the following requirements shall be exempt from paying nonresident tuition at the California State University and the California Community Colleges:
"(1) High school attendance in California for three or more years.
"(2) Graduation from a California high school or attainment of the equivalent thereof.
"(3) Registration as an entering student at, or current enrollment at, an accredited institution of higher education in California not earlier than the fall semester or quarter of the 2001-02 academic year.
"(4) In the case of a person without lawful immigration status, the filing of an affidavit with the institution of higher education stating that the student has filed an application to legalize his or her immigration status, or will file an application as soon as he or she is eligible to do so.
"(b) A student exempt from nonresident tuition under this section may be reported by a community college district as a full-time ...