AB 540 lawsuit may go to Supreme Court

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Persia Salehi/Staff

After nearly six years of petitions and appeals, a class action suit against the UC Board of Regents may advance to the U.S. Supreme Court by the end of June.

A group of 42 former UC, California State University and California Community College students — all of whom are U.S. citizens — filed a formal request to take Martinez et al. v. UC Board of Regents et al. before the Supreme Court on Feb. 14. The court has yet to announce a decision regarding the petition, but the case has been tentatively scheduled for review at the June 2 conference.

The plaintiffs’ original complaint — filed Dec. 14, 2005, in Yolo County Superior Court in Woodland, Calif. — took issue with California Assembly Bill 540, which was signed into law on Oct. 12, 2001.

AB 540 allows students who complete at least three years of in-state high school, graduate from high school in California or complete a GED program and sign an affidavit to pay in-state tuition for higher education, regardless of citizenship or residency.

The plaintiffs — each of whom paid out-of-state tuition — contend the board owes them damages equal to the difference between residential and nonresidential tuition and that AB 540 unconstitutionally affords illegal immigrants a financial edge over citizens, said Michael Brady, a lawyer who represents the plaintiffs.

Ethan Schulman, a lawyer who works on behalf of the defense, said similar cases have failed elsewhere due to a lack of legal standing.

“The issue is still pending before lower courts in legal challenges in other states,” he said. “It’s gotten so far because our opponents are intent on pushing it that far, and they’ve made no secret of this.”

Schulman added that his opponents for the case include Kansas Secretary of State Kris Kobach, who helped draft Arizona’s SB 1070 — the state’s Senate bill that primarily sought to crack down on those harboring illegal immigrants — and is heavily involved in what Schulman calls the “anti-immigration movement.”

On Oct. 4, 2006, the Yolo County Superior Court ruled in favor of the board. However, that decision was overturned unanimously on Sept. 15, 2008, through the California Court of Appeal’s 3rd District in Sacramento. In 2010, the case was brought to the California Supreme Court, where AB 540 was upheld as the court overturned the 2008 appellate decision.

Not satisfied with the court’s decision, the plaintiffs filed a petition for writ of certiorari — an appeal to a higher court to take up a case — with the U.S. Supreme Court.

Among the issues the plaintiffs find with AB 540 is the disparity between the law and the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The act requires states to provide in-state tuition benefits to all U.S. citizens if such benefits are given to illegal immigrants.

“When the state grants in-state tuition to illegal immigrants, it encourages them to come and stay here,” Brady said. “(AB 540) is directly promoting and incentivizing illegal immigration.”

Distinctions and parallels between the two bills abound as some state the government is entitled to intervene in the case, said UC Hastings School of Law professor David Levine.

“If this is interpreted as an end-run around federal law, trying to box in people who don’t have all their papers, then arguably California does intrude into this area that it is uniquely Congress’s will to interpret,” he said.

This contention might be part of the reason the petition for writ of certiorari might have “been sitting there for a while,” according to Andrea Gunn, a lawyer who represents the CSU system.

According to Schulman, a minimum of four of nine federal Supreme Court justices are required to approve the writ, and a decision should be reached by the end of the month.