Michael Brady Makes the Case Against In-state Tuition for “Illegal Aliens”

Michael Brady, plaintiff’s attorney in the landmark case of Martinez v. Regents of the University of California, which seeks to overturn the provision in California state law granting in-state tuition rates to what he consistently called “illegal aliens,” spoke this afternoon with Etopia News, He explained his side of the case and said that he plans to appeal to the U.S. Supreme Court the recent unfavorable judgment against his clients from the California Supreme Court.

Under the law, the plaintiffs in this case have 90 days from the November 15, 2010, date of the California Supreme Court’s ruling to file an appeal with the U.S. Supreme Court. Brady said that he will probably file that appeal “early in February.” He said “there’s a pretty good chance they’ll take it,” in part because it focuses on the currently hot topic of “federal pre-emption.”

Originally filed in December of 2005, in Yolo County, home of the University of California’s Davis campus, Martinez v. Regents of UC represents the objections of 42 plaintiffs from 19 different states to the fact that they must pay out-of-state tuition rates of more than $35,000 per year, while what Brady calls “illegal aliens” are only charged the much-lower in-state tuition of around $8,000. According to Brady, allowing illegal aliens this benefit costs the State of California $300 million annually.

Brady said that nobody he’s spoken to about this case can understand “how an American citizen can end up paying four times more than an illegal alien” to attend UC. The two major purposes of U.S. immigration law, he said, are to 1) discourage illegal aliens from coming to the U.S. and 2) discourage them from staying here. Granting in-state tuition rates to illegal aliens, he says, clearly “rewards and encourages them to stay here” and thus undermines the basic intent of U.S. immigration law.

According to Brady, the U.S. Congress has said that California is free to offer in-state tuition to illegal aliens, but if it does so, it must also offer it to all U.S. citizens, including those resident outside of California. He said that the decision of the California Supreme Court, which relied for its judgment on a provision of California law saying that illegal aliens were eligible for in-state tuition on the basis of their attendance at California high schools, and not on the basis of their residence in the state, clearly flaunts the “will of Congress.”

He cited as precedent the case in which the Supreme Court ruled that universities are free to bar military recruiters from campus, but at the cost of losing all federal funding, saying that UC was similarly entitled to grant in-state tuition to illegal aliens, but at the cost of having to extend that policy to all U.S. citizens, regardless of their residency. “You can go ahead,” he said, “but you’ll pay a price.”

The Regents of the University of California don’t want to pay that price, and the California Supreme Court has said they don’t have to. If the U.S. Supreme Court agrees to consider this case, Mr. Brady will have another chance to argue why they should have to. This case, he said, “has national ramifications. Ten other states have similar laws.”