Kansas ruling felt in Utah

A federal judge has dismissed a Kansas lawsuit challenging that state's law granting in-state tuition to some illegal immigrants at state colleges and universities.

Backers of the suit have promised to appeal to the 10th Circuit Court of Appeals.

The 10th Circuit also oversees Utah, where out-of-state university students considering a legal challenge of a similar law maintain that it isn't fair to give illegal immigrants a tuition break they don't have.

Supporters of Utah's law, meanwhile, say it has opened the door to higher education for students who were brought to Utah as children by their parents and have lived here for years.

In a 38-page decision Tuesday, U.S. District Judge Richard D. Rogers said the Kansas plaintiffs — parents and students paying nonresident tuition — failed to prove they were injured by the Kansas law or that they'd benefit if it were repealed.

"Hypothetical or conjectural harm is not sufficient," Rogers wrote. "When a law does not apply to a party, that party has no invasion of a legally protected interest. . . . The law passed by the Kansas Legislature does not apply to the plaintiffs, and they have made no argument that it does."

Plaintiffs' co-counsel Kris Kobach on Wednesday called the ruling "unduly narrow." Kobach said he plans to appeal the dismissal to the 10th Circuit Court of Appeals, which also oversees Utah. If the ruling is overturned, the case will go back to the Kansas District for arguments on the merits. The Kansas law is similar to one in Utah that grants in-state tuition to illegal immigrants who attend a Utah high school for three years and graduate here, or obtain the equivalent of a diploma. They must also be seeking legal immigration status or plan to do so when they are eligible.

In Utah, the issue came to a head last month when the Joint Education Interim Committee voted to recommend repealing Utah's tuition law after hearing from Kobach and University of Utah students considering a lawsuit.

At the time, many lawmakers expressed concern about the financial risk involved in keeping the law, which in the 2003-04 school year benefitted 117 students.

Higher Education Commissioner Richard E. Kendell said in a statement that "the dismissal of this Kansas lawsuit may alleviate the fears of some Utahns that this law has created a financial risk to the state."

Utah Assistant Attorney General Bill Evans said the ruling sets a legal precedent that "certainly makes it much more difficult for someone wanting to challenge this to do it through the courts."