Topeka ? A federal lawsuit challenging a year-old state law giving some illegal immigrants a tuition break at state universities and colleges was dismissed Tuesday, although backers of the case promised to appeal.

Senior U.S. District Judge Richard Rogers ruled the students who filed the lawsuit couldn’t sue because they didn’t face an injury that’s “concrete and imminent.” In dismissing the lawsuit, he didn’t address the merits of the case.

“Hypothetical or conjectural harm is not sufficient,” Rogers wrote in a 38-page opinion. “When a law does not apply to a party, that party has no invasion of a legally protected interest.”

The judge wrote that this likely is the first federal case to challenge such a law. At least eight other states have similar statutes.

Peter Roos, an Oakland, Calif., attorney representing two Hispanic groups helping defend the law, said the ruling set a precedent because similar plaintiffs in other states likely would face the same issue.

“Essentially these plaintiffs were not going to get any benefit out of it other than ideological satisfaction,” Roos said.

Law in question

At issue was a 2004 law allowing illegal immigrants to qualify for lower in-state tuition if they attend a Kansas high school for at least three years and graduate or earn a general education development certificate in Kansas. Also, they must actively be seeking legal immigration status or plan to do so when they are eligible.

Two 1996 federal laws allow states to grant such tuition breaks if they’re not based on residency and only if they’re available to other U.S. citizens.

At KU

Kansas University officials said five students enrolled at the university were receiving lower tuition rates under the law. Lynn Bretz, a KU spokeswoman, referred questions to the Kansas Board of Regents.

Regents spokesman Kip Peterson issued this statement: “The Kansas Board of Regents is pleased that the law was upheld and that it will continue to provide Kansas students with expanded educational opportunities.”

Supporters of the law say many immigrants affected by the law attended school or lived in Kansas for years. Critics say the law rewards those violating immigration laws.

Challenging the law were six parents and 18 students who were residents of other states but attended Kansas institutions and paid higher out-of-state rates. Their case was funded by the Federation for American Immigration Reform, which opposes what it views as lax immigration policies.

Appeal planned

Dan Stein, FAIR president, said the case would be appealed. He said such laws “treat illegal aliens even better than nonimmigrant students, and they cause tuition rates to increase while discriminating in favor of those who’ve broken our laws.”

He said Rogers “decided to use brazen procedural roadblocks to uphold a state law clearly prohibited by Congress under state law.”

He also called the decision “an appalling exercise of judicial activism.”

Overland Park attorney Mike Delaney, who represented the state, dismissed Stein’s criticism as something to be expected.

“This the absolute antithesis of judicial activism,” Delaney said. “These days, when a person doesn’t like what a court does, they accuse it of being an activist court. What Judge Rogers has done in this case is apply well-worn precedents to those people’s claims.”

Big break

The law gives qualified illegal immigrants a substantial break. For example, state residents taking 15 hours of undergraduate classes at KU pay $2,081 a semester in tuition, compared with $5,069 for non-Kansas residents.

The Kansas Board of Regents, which oversees the state higher education system, said it was pleased with the ruling and will continue to provide such tuition breaks.

Aside from Kansas, other states with similar laws are California, Illinois, New Mexico, New York, Oklahoma, Texas, Utah, and Washington. Similar legislation was vetoed in Maryland.

At least two states – Alaska and Mississippi – prohibit illegal immigrants from getting resident tuition rates while a similar plan was vetoed in Virginia.