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paying nonresident tuition — failed to prove they were injured by the Kansas law or that they'd benefit if it were repealed.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."

Evans has argued that Utah's tuition law complies with federal law because it's equally available to U.S. citizens on the basis of where they went to high school, not their state of residence. He has also said it would be difficult for students paying out-of-state tuition to sue because the law doesn't apply to them.

Rep. David Ure, R-Kamas, sponsored Utah's law, which he said doesn't discuss residence, and is "written more tightly and more precisely than (the Kansas) law was. We're on even better legal grounds than they are.

"I think it's going to knock a lot of air out of their arrogance when they bring it to the floor next year," Ure said.

However, Rep. Glenn Donnelson, R-North Ogden, said the ruling hasn't changed his decision to sponsor the repeal of the tuition law, which he says is "still against the law.

"I'm sure that people will say we don't have a problem here, but we still have a problem here," Donnelson said.

U. of U. sophomore Kelly Wolfe, who is among those considering a suit, says it's a matter of principle.

"We are being affected," Wolfe said. "They should not be allowing illegal aliens to have something the federal government says they can't have unless citizens have it."

Kobach said the plaintiffs' key argument is based on a 1996 federal law that doesn't allow illegal immigrants to be given a tuition benefit unavailable to citizens, regardless of residence. The argument was one of six claims, which also included equal protection.

"We believe the judge has got it wrong to rely on financial damages to bring equal protection challenges," Kobach said. "If the judge's ruling were to stand, it would be very difficult for anyone to bring equal protection challenges in the future."

Utah Latino rights activist Tony Yapias said the Kansas ruling "gives us more fuel to the fire" in efforts to persuade lawmakers to keep the law intact.

"I think the biggest thing right now is that a judge has said there isn't a case," Yapias said. "I'm just concerned our legislators could have waited a little bit longer, rather than take an anti-immigrant group and attorney at face value."


E-mail: dbulkeley@desnews.com