Unauthorized Alien Students, Higher Education, and In-State Tuition Rates: A Legal Analysis Page: 3 of 6
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society."6 Although the Supreme Court has not ruled on this question, the distinction
between higher education and elementary and public education make it appear unlikely
that the Court would strike down legislation that restricted the access of unauthorized
student aliens to higher education.
Meanwhile, in Toll v. Moreno,7 the Court considered a challenge to a Maryland state
policy to deny in-state status to non-immigrant aliens holding G-4 visas even if such
aliens were state residents who would have otherwise qualified for in-state tuition rates
at state colleges and universities. Ultimately, the Court held that the state policy was
invalid under the Supremacy Clause of the Constitution. Under the Supremacy Clause,
the laws of the United States "shall be the supreme law of the land," and state laws to the
contrary are preempted by federal law.8 Since immigration regulation is an exclusive
power of the federal government, "state regulation not congressionally sanctioned that
discriminates against aliens lawfully admitted to the country is impermissible if it imposes
additional burdens not contemplated by Congress."9 Because federal law allowed G-4
aliens to establish residency in the U.S., the Court found that the Maryland policy to deny
residency status for purposes of qualifying for in-state tuition rates conflicted with federal
law and therefore violated the Supremacy Clause.10
It is important to note that Toll v. Moreno involved aliens who were lawfully present
in the U.S. and thus may not extend to protect unauthorized student aliens who are denied
state educational benefits such as admission to state colleges and universities or eligibility
for in-state tuition rates. Indeed, as long as a state policy to deny such educational benefits
to unauthorized student aliens is not found to conflict with federal immigration standards,
it is likely to be upheld by the courts, as demonstrated in the Equal Access Education v.
Merten case described below.
Thus far, it appears that only one federal court has addressed the question of whether
it is constitutionally permissible for a state to prohibit unauthorized immigrants from
attending state colleges and universities, let alone from receiving in-state tuition. In Equal
Access Education v. Merten, the plaintiffs claimed that several Virginia public institutions
of higher education had violated the Supremacy, Commerce, and Due Process Clauses of
the Constitution by denying admission to unauthorized student aliens."1 The institutions
adopted this policy in response to a 2002 memorandum from the Virginia Attorney
General that asserted that unauthorized aliens should not be admitted to Virginia's public
colleges and universities. Although the Court dismissed the Commerce Clause and Due
Process Clause claims,12 it did allow the Supremacy Clause claim to proceed, at least in
part. Since immigration regulation is an exclusive power of the federal government, the
court ruled that the Supremacy Clause would not be violated unless the plaintiffs could
61d at 221.
458 U.S. 1 (1982).
8 U.S. Const. art. VI, cl. 2.
9 Toll v. Moreno, 458 U.S. at 12-13 (citing DeCanas v. Bica, 424 U.S. 351, 358 (1976)).
10 Toll v. Moreno, 458 U.S. at 13-14.
" 305 F. Supp. 2d. 585 (E.D. Va. 2004).
12 Id. at 608-14.
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Feder, Jody. Unauthorized Alien Students, Higher Education, and In-State Tuition Rates: A Legal Analysis, report, December 8, 2006; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc816188/m1/3/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.