U.S. ruling may impact tuition for illegals in Utah

A Weber County lawmaker says he'll probably try again next year to repeal a law allowing certain undocumented students to pay in-state tuition.

However, Rep. Glenn Donnelson, R-North Ogden, said Tuesday that he'll have to review a federal appeals court ruling that threw out a lawsuit over a similar law in Kansas before he can say if it will impact his argument against the 2002 law. It allows undocumented students to pay in-state tuition if they attend a Utah high school for three years and graduate.

"Federal law says they can't offer illegal immigrants tuition, and if they do, they have to offer it to all," Donnelson said.

The ruling last week by the 10th Circuit Court of Appeals, which also oversees Utah, found that students paying out-of-state tuition in Kansas have no cause to sue the state's higher education system.

The ruling says in part, "the record before us is devoid of evidence of any causal relationship between the tuition cost imposed on Kansas' public universities by (the Kansas law) and nonresident tuition rates imposed on the plaintiffs."

The ruling doesn't address the validity of the law.

Kris Kobach, an attorney in the Kansas case, has testified before Utah lawmakers, saying the tuition law violates federal law and could leave the state open to litigation. Meanwhile, Utah assistant attorney general Bill Evans said the tuition law is sound.

Past arguments have centered around whether the tuition law is discriminatory to out-of-state students and whether it violates a federal law that prevents granting tuition benefits unavailable to U.S. citizens.

Amanda Covington, spokeswoman for the Utah System of Higher Education, said the state's tuition law improves access to higher education for all students in Utah.

"We're gratified that the Utah law is less susceptible to a legal challenge," she said.

Kobach, however, says the plaintiffs are considering their options and may appeal for a hearing before the entire 10th Circuit Court of Appeals. The ruling was made by a three-judge panel, he said.

"It's a setback, but it's not decisive," he said. "The case was filed in the summer of 2004. ... Here we are three years later, and the court still hasn't ruled on the merit of whether the state is in violation of federal law or in violation of the Equal Protection Clause."

Kobach said the ruling leaves the door open for other types of students who could sue, such as one mentioned in a friend-of-the-court brief filed by the Washington Legal Foundation. It refers to a student at the University of Kansas who pays out-of-state tuition even though she attended a Kansas high school for four years and graduated from there while living in Missouri.

"She meets all of the criteria except for being an illegal alien," Kobach said.

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