Immigrant tuition law on trial

Appeals court to decide legality of Kansas statute

A controversial Kansas law that grants in-state college tuition to some illegal immigrants had another day in court Wednesday.

“What is at stake is whether Kansas is going to get away with violating federal immigration law,” said Ira Mehlman, spokesman for the Federation of American Immigration Reform.

The Washington, D.C., group appealed its case to the U.S. Circuit Court of Appeals in Denver. The organization is challenging the 2004 Kansas law on behalf of students from outside Kansas who pay higher out-of-state tuition. The plaintiffs claim the state is violating federal law by offering some illegal immigrants a benefit some U.S. citizens cannot get.

Last year, a federal judge in Topeka dismissed the suit, saying the students who filed couldn’t sue because they didn’t face “concrete and imminent” injury.

The case on Wednesday was presented to a three-judge panel.

Attorney Mike Delaney, who represents the state, told the appeals court the trial judge was correct in ruling the students had no right to sue.

Kris Kobach, an attorney for the plaintiffs, argued that the simple fact the students cannot qualify for in-state tuition under the law even though they are U.S. citizens is injury enough to give them that right.

“The discrimination is imposed by the barrier itself, and removing that barrier removes discrimination, and that is adequate remedy,” he said.

The hot-button issue has become a major part of Republican Jim Barnett’s campaign against Gov. Kathleen Sebelius, a Democrat seeking re-election.

On Tuesday, Barnett said he would “encourage repeal of the current law.”

Barnett often has criticized Sebelius for signing the 2004 legislation into law.

“What I am primarily concerned with is treating illegal aliens better than American citizens – that is something I cannot and will not support,” he said.

Sebelius has said the tuition law will help longtime Kansas residents who are seeking citizenship. The Sebelius campaign also has noted that Barnett’s lieutenant governor running mate, state Sen. Susan Wagle of Wichita, voted for the measure.

The law allows 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. They also must actively be seeking legal immigration status or plan to do so when they are eligible.

Last fall, 221 students attended Kansas public institutions under the law, the majority attending community colleges.

The Kansas Board of Regents has supported the law and the trial judge’s 2005 decision.

“We need to keep our bright students in Kansas,” Regent Dan Lykins said. “I don’t see why we should punish these innocent children that will have a direct economic impact on our state just because their parents did something wrong.”

Leo Prieto came to the U.S. from Mexico at age 3. He became a U.S. citizen at age 18. Last spring, he graduated from KU’s law school and is now studying for the bar.

He said the tuition law isn’t about immigration.

“It’s kind of getting blown out of proportion,” he said. “The issue is about children and education.”