Topeka A state law that allows certain noncitizen immigrants to pay in-state tuition at Kansas colleges will be challenged in court Tuesday.
The case, being heard in U.S. District Court in Topeka, was filed last summer against Gov. Kathleen Sebelius and the Kansas Board of Regents. It is being brought by 24 out-of-state students, who say that a 1996 federal law prevents the state from offering residency-based benefits to illegal immigrants that aren't available to all U.S. citizens.
The regents say the law, which went into effect in October, is not based on residency. They say it offers the in-state rate to immigrants who attended a Kansas high school for three years and obtained either a diploma or Kansas-issued GED. The students must sign an affidavit saying they plan to apply or are currently applying for U.S. citizenship.
Nine states have similar laws offering in-state tuition to noncitizen immigrants who have graduated from state schools. Several others, including Florida, North Carolina and Nebraska, are considering similar laws. At the federal level, lawmakers are considering similar legislation, called the Dream Act.
The students challenging the Kansas law attend the University of Kansas, Kansas State University and Emporia State University. They say they are unhappy at having to pay out-of-state tuition, which is higher than that paid by Kansas residents.
Lashonda Montgomery, a University of Kansas biochemistry student from Omaha, says she plans to transfer back to Nebraska because of her big student loans.
"If you don't have citizenship, then you shouldn't be allowed to pay in-state tuition," Montgomery said. "I don't think someone who can't vote should have more rights than me."
The students are represented by two attorneys who have been deeply involved in the debate over restricting immigration. Kris Kobach, a University of Missouri-Kansas City law professor, was the U.S. attorney general's chief adviser on immigration and border security from 2001 to 2003, and Michael Hethmon is a lawyer for the Washington, D.C.-based Federation for American Immigration Reform.
"They're discriminating against U.S. citizens," Hethmon said. "There's been surprisingly little litigation on this type of issue because it's very difficult for citizens to file in court seeking enforcement of immigration laws."
The defense has received support from lawyers working on behalf of the Hispanic American Leadership Organization and Kansas League of United Latin American Citizens, as well as on behalf of A. Doe, J. Doe and L. Doe, three Kansas college students who immigrated from Mexico in childhood.
Among the lawyers is Peter Roos, who successfully argued in 1982 before the U.S. Supreme Court that undocumented children have a right to attend K-12 public school.
"To deny young people an opportunity to realize their potential on the basis of their national origin is certainly a civil rights concern," Roos said. "The reality is that most of these kids one way or another will get their status legalized. They will be working in this country and paying taxes, and they're going to pay a lot more taxes if they're educated than if they're uneducated."
Last fall, the state said 30 students are benefiting from the law, most of them attending community colleges.
Jose Martinez, a Wichita State University student, is among those. He moved to the U.S. from Mexico when he was 11 on a since-expired tourist visa, and his family is pursuing residency.
"I don't consider myself illegal -- I didn't jump the fence at the border," Martinez told The Wichita Eagle. "I consider myself a resident of Kansas. Except I'm not a legal resident."