By Dikran Sevlian, 3L
Immigration is an issue that fuels the fires of debate, argument, and just plain fighting. On the front lines of these issues are the ever dedicated, lowly paid soldiers of public interest. Litigating or providing amicus briefs for those who need representation.
All California public universities adhere to a particular statute in regards to in-state tuition. California Education Code § 68130.5 (commonly referred to as A.B. 540) provides in-state tuition for any individual who is not a permanent resident of California so long as such individual meets certain requirements. Made into law in 2001, A.B. 540 requires that an individual 1) has attended a California high school for three or more years 2) graduated from a California high school and 3) attends an accredited California college or university. A student who does not have lawful immigration status can still take advantage of this code if they file an affidavit with their college or university stating that they will legalize or plan to legalize their immigration status.
In 2005 out of state students brought an action against the U.C. Regents. They claimed that the statute discriminated against out of state students by offering cheaper tuition to undocumented immigrant students. Moreover, the state law violates federal statute 8 U.S.C §1623(a) which states that an undocumented immigrant is not eligible for postsecondary education benefits based on his residency in the state unless those benefits are equally available to all out of state citizens. Therefore under federal law, giving cheaper tuition to an undocumented student in California should not be allowed.
Proponents argue that the statute is not federally preempted by law because the statute does not expressly state that tuition benefits will be offered to student on the basis of residence. The statute applies to any prospective college student who merely meets the basic criteria set by the statute. Notwithstanding, the state of California has a legitimate purpose to offer cheaper education to its residence. The average income of a college graduate is significantly higher than a non college grad. Subsequently, a well educated cohort of California residents translates to long term benefits for the state.
Nonetheless, last year around this time (September 15, 2008), the state appellate court reversed and remanded a trial court’s dismissal of the suit challenging the legality of A.B. 540. The court found that the appellants (Martinez) had a claim of federal preemption, violation of equal protection, and violation of privilege and immunities clause. Presently the case is pending in trial court while the U.C. Regents requested the California Supreme Court to review the appellate court decision.
At the end of it all, if A.B. 540 is eliminated, undocumented immigrants will have to pay non-resident tuition but cannot be eligible for any federal or university financial aid. On the flip side, nothing will change for the out of state students who brought the action. They and other out of state students will have to pay the non-resident tuition that can be around $22,000 for public schools. In these trying economic times as well, undergraduate and graduate schools are opportunities to get out of the storm for a while. School becomes necessary to distinguish yourself from others once you get out into the job market.
Yet, you might ask, who is so hell bound are helping take these opportunities from students who by “function over form” are essentially residents of California? The counter to that would be who are those just as hell bound to protect these students? On one side of the ring are the Mexican American Legal Defense and Education Fund and Lawyer’s Committee of Civil Rights. On the other side of the ring are the Immigration Reform Law Institute (IRLI), the Pacific Legal Foundation (PLF), and the Washington Legal Foundation (WLF). Each group describes themselves as a public interest group devoted to giving a voice to the voiceless.
The Lawyer’s Committee of Civil Rights tries to “obtain equal opportunity for minorities by addressing factors that contribute to racial justice and economic opportunity.” Noble causes by any means; I can just see those hard working young attorneys spending hours writing amici. They’re trying to presenting things just right, prevailing, getting something for the small guy.
The Pacific Legal Foundation is “devoted to a vision of individual freedom, responsible government, and color-blind justice . . . to build a future of economic freedom and equal opportunity.” The Pacific Legal Foundation and the Committee of Civil Rights are dedicated to equal opportunity and the eradicating injustice.
Immigration Reform Law Institute is an organization narrowly tailored to protect the rights of U.S. citizens. More specifically, advocating for citizens harmed by illegal immigration. On the other hand, MALDEF “promotes equality and justice through litigation, advocacy, public policy, and community education in the areas of employment, immigrants’ rights, voting rights, education, and language rights.” MALDEF proudly calls itself “the law firm of the Latino community.” However, they still call themselves public interest groups.
It is obvious, and I do love to point out the obvious, that these groups advocate for particular groups within the public. So then I have to ask; what is the public? According to Merriam Webster, public means of, relating to, or affecting all the people or the whole area of a nation or state or relating to people in general. This definition just doesn’t seem to fit. If public meant all the people then wouldn’t the interest these groups focus on be related to all the people of a nation? According to Merriam-Webster, a nation or state does not specify citizenship, so people of a nation do not necessarily require the possession of documentation. Moreover, Black’s Law definition is: 1. relating or belonging to an entire community, state, or nation, 2. Open or available for all to use, share, or enjoy.
From the definition then, one who works for the public’s interest should work for all members of the community. Perhaps the term public interest is a misnomer. If a group represents only a subset of people within the public, should they not be called by some other name? Maybe the term public interest should not be used. Each group should just call themselves by the specific interest they represent. MALDEF has the right idea. But to narrowly categorize each group is inefficient, non-uniform, and too difficult to bother with.
There are different terms to use: specified cause interest, fractional interest, interest of the part, constituent interest. I like constituent interest. One of the definitions of constituent is: one part of something that makes up the whole. Yet Constituent Interest Law doesn’t have the same ring as Public Interest Law. The latter offers the hearer an image of dedication, sacrifice, self gratification of helping the people. The former just lets you know you can’t help everybody. Sometimes you might be hurting them.
