Challenge dismissed on state tuition for illegals

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A federal judge in Kansas has dismissed a case seeking to enforce a 1996 federal law that says states that let illegal aliens pay in-state tuition at state colleges must grant the same rates to out-of-state citizen students.

Over the past decade, nine states have passed laws granting in-state tuition rates to illegal aliens who qualify as in-state residents, but the Kansas case is the first in which a state's law has been challenged as a violation of the federal law.

U.S. District Judge Richard D. Rogers dismissed the challenge on technical grounds, ruling that two dozen out-of-state students did not have standing to sue because they were not harmed personally by in-state tuition rates for illegal aliens. He said he did not rule on the actual merits of the challenge.

"The decision on what to do concerning the education of illegal aliens at the post-secondary level in our country is indeed significant," wrote Judge Rogers, who was nominated by President Ford. "That decision, however, is probably best left to the United States Congress and the Kansas Legislature."

Attorneys for the students have promised to appeal to the 10th U.S. Circuit Court of Appeals.

"Standing" is the issue of whether someone is injured by the law. Kris W. Kobach, attorney for the plaintiffs and a law professor at the University of Missouri at Kansas City, said that certainly applies to out-of-state students, who pay about $8,000 more than in-state students in Kansas.

"My question is, if our plaintiffs really don't have standing, then it's unclear anyone would," he said.

The Kansas law took effect July 1, 2004. It applies to all students who graduated from a Kansas high school after spending three years there, so it does not specifically target illegal aliens.

In the first year, about 30 illegal aliens took advantage of the tuition rate, Mr. Kobach said, while about 20,000 students paid the out-of-state tuition rate.

Michael Hethmon, an attorney for the Federation for American Immigration Reform (FAIR), which helped fund the lawsuit, said Judge Rogers was too cursory.

"On some of the issues, he really just skimmed the surface because he wanted to dispose of the case on standing," Mr. Hethmon said.

Kansas Attorney General Phill Kline, a Republican, defended the state's law in court. His communications director, Whitney E. Watson, did not return a call for comment yesterday.

But Peter D. Roos, who argued in the case on behalf of three anonymous illegal aliens, said the 1996 law was enacted six weeks after another law opened the door for states to offer benefits to illegal aliens. Congress did not overturn the provision in enacting the second law and therefore must have meant to allow Kansas and other states to offer in-state tuition benefits for illegal aliens, he said.

"Our sense is that Congress, if it had wanted to repeal [the earlier law], it would have done so expressly," he said, adding that FAIR was trying to use the courts as an end run.

"I think on the merits they were trying to pull a victory out of a loss they suffered in Congress," he said.

In-state tuition laws also have been enacted in California, Texas, New York, Utah, Washington, Oklahoma, New Mexico and Illinois. Maryland's legislature passed such legislation, but Gov. Robert L. Ehrlich Jr., a Republican, vetoed it.

At least two states -- Alaska and Mississippi -- have laws specifically barring in-state tuition rates for illegal aliens. Virginia's legislature passed such legislation, but Gov. Mark Warner, a Democrat, vetoed it.

Last year, legislation to repeal the 1996 provision passed the Senate Judiciary Committee but never advanced. Its sponsor, Sen. Orrin G. Hatch, Utah Republican, has not reintroduced the bill in this session of Congress.