Topeka The U.S. Supreme Court has refused to hear a lawsuit that challenges a Kansas law that allows some illegal immigrants to pay lower in-state tuition for higher education.
The action essentially ends the case, but the attorney who filed the lawsuit said Monday that the challenge may continue.
"At this point, we are trying to decide what to do," said Kris Kobach. "We're considering all of our options," he said.
At issue was a law approved in 2004 that allows children of some undocumented workers to pay the in-state tuition rate if the student lived in Kansas for at least three years, graduated from a Kansas high school, and sought or promised to seek legal status.
Last year, about 240 students benefited from the law, with most attending community colleges.
After the law was enacted, the Federation for American Immigration Reform, which seeks to limit immigration, filed a lawsuit in federal court.
The plaintiffs, who were classified as out-of-state students and had to pay the higher tuition to attend Kansas schools, argued that the law violated their constitutional rights of equal protection by granting illegal immigrants a benefit that they couldn't receive.
But a federal court in Topeka and later the 10th U.S. Circuit Court of Appeals in Denver said the plaintiffs didn't have legal standing to challenge the law because they couldn't show they would have been affected even if the law was struck down.
Without comment last week, the Supreme Court denied a request by FAIR to re-consider those rulings.
But Kobach, who also is chairman of the Kansas Republican Party, said he could challenge the law again with plaintiffs who are in a different situation, or file a new lawsuit in state court with the same kind of plaintiffs.
He said the courts have ruled only on the issue of legal standing, and not on the actual merits of the challenge to the law.
But Gov. Kathleen Sebelius, who signed the law, said she was confident it would be upheld by the courts.
"Gov. Sebelius has always been confident in this law which makes college accessible," said her spokeswoman Nicole Corcoran. "Those eligible for in-state tuition must prove they're pursuing citizenship and must pay their own way and are not eligible for state or federal financial aid," she said.