July 1, 2005
Kansas.com: The Wichita Eagle
Katherine Leal Unmuth
 
A federal judge Tuesday dismissed a lawsuit challenging Kansas' one-year-old law offering in-state tuition to some illegal immigrants, ruling that the out-of-state students who filed the suit had no standing to challenge the law.

Lawyers for the students challenging the law plan to appeal.

In his 38-page ruling, U.S. District Judge Richard Rogers in Topeka said the issue of illegal immigrants at the postsecondary level should be left to the U.S. Congress and state legislatures, not the courts. He said the 18 out-of-state students and six parents at Kansas universities challenging the law were not harmed by it directly.

The challenge is considered a test case for the nation. Kansas is one of nine states with such a law.

Tuition and fees for nonresident students are significantly higher; at Wichita State University they will be about $5,483 per semester next year for a student taking 15 credit hours. An in-state student will pay $2,116.

Mike Hethmon, lawyer for the Washington, D.C. -based Federation for American Immigration Reform, which challenged the law on behalf of the students, vowed Tuesday to appeal the judge's decision.

He also criticized the judge for throwing the case out on a technicality, rather than on the merits of the arguments.

"The judge used procedural roadblocks to keep out students from getting a serious issue heard on the essence of the claims," he said. "Judge Rogers essentially punted by saying, 'I think the Legislature should handle these problems.' "

Hethmon and lawyer Kris Kobach, a constitutional law professor at the University of Missouri-Kansas City, had argued that under a 1996 federal law a state cannot offer residency-based benefits to illegal immigrants that it does not offer to all U.S. citizens.

In defense of the state, lead lawyer Mike Delaney argued that the law is not based on citizenship but upon whether a student has attended a Kansas school for at least three years, holds a Kansas diploma or equivalent, and is pursuing legal status.

Peter Roos, an Oakland, Calif., lawyer who intervened on behalf of the state, said he was satisfied with the ruling. Roos successfully argued the 1982 Plyler v. Doe case in front of the Supreme Court. The court ruled in that case that states must provide illegal immigrant children a K-12 education.

He said the state needs to ensure that illegal immigrant students are educated, since they will likely remain in Kansas for work and will pay taxes. "It makes so much sense even legislatures and legislators that are not traditionally bug-eyed liberal are voting for it," he said. "The plaintiffs were just people who wanted to become Jayhawks, but otherwise are not committed to the state."

Many educators supported Tuesday's ruling.

"The Kansas Board of Regents is pleased that the law was upheld and that it will continue to provide Kansas students with expanded educational opportunities," said Kip Peterson, spokesman for the regents, who oversees the state's higher education system.

In Wichita, North High School guidance counselor Mary Navarro said about 10 students signed affidavits this year stating that they plan to attend college under the law and pledging that they will pursue legal status.

She was happy the suit was dismissed.

"The suit has no value, nothing to stand on," she said. "These kids that have been taking advantage of the law and their parents have been paying state taxes, and those taxes fund the state institutions."

While Rogers indicated Congress should deal with the issue of illegal immigrant college students, it has still taken no action on the proposed Dream Act, which would repeal the 1996 law and offer temporary legal status.

Last Thursday, local students rallied in support of Marie Gonzalez, 19, an honors student from Jefferson City, Mo., who had testified in support of the act and was scheduled to be deported July 5. This weekend, the Department of Homeland Security granted her one more year in the United States.

Stories like hers are not uncommon in Wichita.

Luis, 17, a graduate of North who plans to attend Butler Community College under the law, said even with the law many students struggle to pay because they have no access to federal and state financial aid. Luis asked that his last name not be used.

"It's kind of sad still," he said. "I have a lot of friends who want to study, but they can't because they can't get any money.

"But I think that's good we're going somewhere with the law."