The Pew Charitable Trusts

California lawmakers took a risk seven years ago when they gave college students who are in the country illegally an in-state tuition break. Soon, lawmakers will find out whether their statute - similar to laws in nine other states - holds up in court.

Proponents of the state's 2001 law want the California Supreme Court to look at the issue, after a lower court said the statute violates a 1996 federal law banning states from giving undocumented college students benefits they don't offer to all U.S. citizens. The high court is expected to decide whether to take the case in the next few weeks.

"This is exactly the type of case that really ought to be decided by the (state) Supreme Court. It has national implications," said Christopher M. Patti, a lawyer representing the University of California system, which wants the lower court's ruling overturned.

The lawsuit, Martinez vs. Regents of the University of California , was brought by dozens of U.S. citizens who pay out-of-state tuition at California schools who want the state to stop giving undocumented students in-state rates. They also want reimbursement for the extra tuition they have paid.

A three-judge panel of the California Court of Appeals ruled ( PDF ) in September that the practice violated the federal law and determined the case should go forward.

"Although (the lower court ruling) is not strictly binding, it is very powerful precedent," said Kris Kobach, a law professor at the University of Missouri-Kansas City who represents the plaintiffs. The ruling, which courts outside of California aren't obligated to follow, was the first time any court in the country determined whether the policy violated federal law.

Officials in other states are watching the case closely.

A Texas state lawmaker asked ( PDF ) the attorney general there to review a similar Texas law, in light of the California appeals court's ruling.

In Utah, where undocumented students also can get in-state tuition rates, Attorney General Mark Shurtleff (R) sent a letter urging the California high court to review the lower-court decision.

"Though not legally binding on other states, its (the appeals court decision's) singular presence in the judicial landscape casts a pall over the viability of his public policy, not only in California, but nationwide," wrote Shurtleff, who supports letting undocumented students qualify for in-state tuition.

The intermediary court's decision is the latest in a string of developments making it harder for illegal immigrants to attend college.

This year, state policymakers barred illegal immigrants from enrolling in all South Carolina public universities, taking academic classes at North Carolina community colleges and enrolling in Alabama community colleges. Most Virginia state universities already block the admission of undocumented students, but some schools let them enroll.

Children who are in the country illegally are entitled to free school from kindergarten through high school, according to a 1982 U.S. Supreme Court decision, Plyler v. Doe . But the federal law bars states from providing "a postsecondary education benefit" to undocumented students that they don't also offer to any other U.S. citizen - whether or not they live in the state.

Defenders of California's law say in-state tuition is not a "benefit" under the law - as a scholarship would be - because it is not a monetary award. They also say the law goes beyond illegal immigrants to offer in-state tuition to some non-Californians, too.

The law could also provide cheaper rates, for example, to a student who graduates from a California high school but whose parents then move out of state. Students who went to California boarding schools could also qualify for in-state tuition.

To get in-state tuition under the law, students must have attended high school in California for three years and graduated (or earned an equivalent degree). Undocumented students also must swear they will apply for legal residency as soon as they are eligible for it.

In the 2006-2007 school year, 1,639 students in the University of California's 10 campuses qualified for in-state tuition under the law, with each student saving an average of $16,800 a year. A March report ( PDF ) by the university system said at least 72 percent of those recipients were in the country lawfully.

But the appeals court said the law's aim was clearly to benefit illegal immigrants living in California, not U.S. citizens from other states.

"Defendants ask us to believe that the Legislature enacted (the law) to subsidize the college education of students who were not entitled to free or subsidized education in California's elementary/secondary schools. That makes no sense," the judges wrote.

The condition that students attend California high schools for three years amounted to a "surrogate residence requirement," because school districts usually require students to live in their districts, the court held. That means the lower rates are not available to all U.S. citizens as federal law requires, the judges said.

The court said the required pledge from illegal immigrants to pursue legal residency "an empty, unenforceable promise contingent upon some future eligibility that may or may not occur."

But University of Houston professor Michael Olivas, who helped craft Texas' law and has written extensively on the topic, said the federal government doesn't have the right to tell states who gets in-state tuition.

"In-state residency is entirely a state-determined status. There are no federal funds tied to this status, as opposed to, for example, federal highway programs, where acceptance of the dollars obligates a state to abide by federal speed limits," he and six other law professors wrote in a letter to the Texas attorney general's office.

It will likely be some time before the California case is resolved. If the high court accepts the case, it will take months to decide the matter. If not, the case heads back to a state trial judge to decide a remedy.