Mystifying interpretation of “residency” by California’s Supreme Court

Originally posted by me elsewhere onĀ 11/16/2010

There is a federal law which requires any state that offers in-state tuition to illegal immigrants residing in-state to offer the same deal to out-of-state students. California and nine other states appear to be flagrantly violating this law. In California out-of-state students sued because they were being forced to pay up to $23,000 more a year due to their out-of-state status while illegal immigrants were being allowed to pay the lower, in-state tuition. A lower court sided with the out-of-state litigants, but today the California Supreme Court overturned this ruling.

According to the California Supreme Court, the California tuition policy does not violate federal law because the in-state tuition offer was not based on residency (which is forbidden by federal law). Instead it was based on other criteria, such as attending high school in California for three years, or graduating from high school in California, or earning your G.E.D. in California. Could someone explain to me how it is possible to graduate or attend high school for three years in California and not be a resident? As to the G.E.D., you are not allowed to take this exam in California unless you have already established your California residency (see eligibility requirements here). Nonetheless, the judges ruled that since not all illegal immigrants who were residents of California met these criteria, that the tuition dispensation was not based on residency. For instance, illegal immigrants who dropped out of high school after two years and who didn’t get their G.E.D. would not be eligible for this tuition break. Of course such individuals are not going to be admitted into a university anyway.

It is expected that this ruling will be appealed to the U.S. Supreme Court.