Trump has also sued Minnesota and Illinois, states with Democrats as governors and attorneys general who are challenging Trump’s lawsuits.
The U.S. Department of Justice says that the federal law in question bars students without legal status from receiving in-state tuition and financial aid benefits based on their living in the state. This, the federal lawyers argue, violates federal law since public campuses in California require U.S. citizens from other states to pay higher tuition rates.
However, California’s law, Assembly Bill 540, doesn’t extend in-state tuition based on where students live, scholars and a previous court ruling say. Instead, students generally need to prove that they attended three years of high school or community college in California; they also need to earn in California a high school diploma or obtain enough community college credits to be eligible for transfer into a public university.
The Department of Justice says those three-year high school or community college requirements are tantamount to an in-state residency criteria and therefore violate the 1996 federal law.
But the California Supreme Court in 2010 already struck down that interpretation. The high court observed that some students living in areas bordering California are permitted to study at California high schools. High school students from out of state enrolled in private boarding schools also satisfy the requirement; they don’t count as residents of California either. And students who were residents of California during high school but moved to a different state could still enroll in California colleges or universities paying in-state tuition.
All of these scenarios require a student to complete the same AB 540 application as students who lack legal status. The only difference is that students without status must also complete an affidavit that they’ll pursue legal residency as soon as they can.
In fact, the University of California enrolled more students under AB 540 who were legal U.S. residents than those who weren’t, the state high court said then.
“If Congress had intended to prohibit states entirely from making unlawful aliens eligible for in-state tuition, it could easily have done so,” the state Supreme Court wrote in 2010. But Congress didn’t do that, the court noted.
Lawmakers in California who passed AB 540 in 2001 knew what the federal law restricted, said Motomura, and they crafted a state law that wouldn’t contravene what Congress intended. “It was drafted to avoid the residency test, and it was drafted to avoid the exclusion of U.S. citizens,” he said.
What’s likely next
California has already signaled that it will fight the lawsuit. “The Trump Administration has once again missed the mark with its latest attack on California, and we look forward to proving it in court,” wrote Nina Sheridan, a spokesperson for the California Department of Justice.
Both the UC and the community college system said their tuition and financial aid policies have always been legally compliant. The Cal State University system did not respond to a request for comment.
