from the Volokh Conspiracy folks: http://volokh.com/

California Statute Allowing In-State College Tuition for Illegal Aliens Is Preempted by Federal Law: So the California Court of Appeal held yesterday in Martinez v. Regents:

[T]he most significant issue [in this case] is whether California's authorization of in-state tuition to illegal aliens violates a federal law, title 8 of the United States Code (U.S.C.) section 1623, which provides as pertinent:

"Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident."

The respondents argue the federal statute is not violated for two reasons:

1. Respondents say in-state tuition is not a "benefit" within the meaning of the federal law. For reasons we shall explain, we conclude in-state tuition, which is some $17,000 per year cheaper than out-of-state tuition at UC, is a "benefit" conferred on illegal aliens within the meaning of the federal law.

2. Respondents argue in-state tuition is not granted "on the basis of residence within a state" as required by federal law. Respondents point to the fact that in-state tuition for illegal aliens is based on a student's having attended a California high school for three or more years and on the student's having graduated from a California high school or having attained "the equivalent thereof." As we shall explain, the three-year attendance requirement at a California high school is a surrogate residence requirement. The vast majority of students who attend a California high school for three years are residents of the state of California. Section 68130.5 thwarts the will of Congress manifest in title 8 U.S.C. section 1623.

The court's bottom line conclusion is simply that the case may "proceed in the trial court," but its legal analysis suggests that the state statute is indeed preempted by the federal statute, as a matter of law with no further factfinding required.