Topeka A California court has ruled against a law similar to the Kansas law that provides a way for some undocumented students to pay lower-cost in-state tuition.
Kris Kobach, the lead attorney challenging the California law, said Tuesday that the decision by a California appellate court was relevant to Kansas. The ruling said the California law was in conflict with federal statute.
"The legal question is now decided," said Kobach, who also is chairman of the Kansas Republican Party and a law professor at the University of Missouri-Kansas City. "This has huge repercussions for Kansas."
Kobach said the Kansas Legislature should repeal the Kansas law when the 2009 session starts in January because it conflicts with federal law.
But Attorney General Steve Six's office disagreed, issuing this statement: "The California court's decision has no legal impact on Kansas' statute. Federal courts have rejected Mr. Kobach's challenge to the Kansas law."
Under the Kansas law, the children of illegal immigrants may have the benefit of paying the lower in-state tuition if they lived in Kansas for three years, graduated from a Kansas high school and promised to seek citizenship. The requirements under the California law were similar in applying to the California higher education system.
Federal law says that illegal immigrants aren't eligible for any postsecondary education benefit on the basis of residence. Supporters of the state laws argued that the in-state tuition was not based on residence but on the high school graduation requirement.
The California appellate court dismissed that reasoning, saying the state law set up a "surrogate residence requirement." The court reversed a lower court dismissal of the lawsuit, and has said a trial should be held. The plaintiffs are U.S. citizens from other states who must pay the higher out-of-state tuition rates.
The legal dispute has produced different results in Kansas.
In the Kansas lawsuit, a federal court in Topeka and later the 10th U.S. Circuit Court of Appeals in Denver said the plaintiffs who challenged the law didn't have legal standing to do so because they couldn't show they would have been affected even if the law were struck down. The U.S. Supreme Court denied a request to reconsider those rulings.
But Kobach, who was also the attorney in that lawsuit, said the courts in the Kansas case had ruled only on the issue of legal standing, and not on the actual merits of the challenge to the law.
In Kansas, approximately 240 students are paying in-state tuition under the law, according to the Kansas Board of Regents. Most are attending community colleges.
Since the law was enacted in 2004, there have been numerous unsuccessful attempts to repeal it.
Gov. Kathleen Sebelius, who signed the law, has in the past said she was confident it would be upheld by the courts.