Victory for California’s Undocumented Immigrant Students

Munger, Tolles & Olson represented The Regents of the University of California (Regents) in persuading the California Court of Appeal, Second District, to reject a challenge to the policies and programs under which certain undocumented immigrants studying at the University of California are eligible for a waiver of nonresident supplemental tuition and for education grants and student loans. The decision in the lawsuit, De Vries v. Regents of the University of California, was issued on Dec. 12, 2016.

The nonresident tuition waiver (established in a law known as AB 540) was previously challenged as preempted by federal immigration law, including 8 U.S.C. § 1621. Section 1621 generally makes undocumented immigrants ineligible for state or local public benefits but contains an exception allowing them to become eligible “through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.” The California Supreme Court rejected that challenge to AB 540 in 2010 in Martinez v. Regents of the University of California, finding that it fell within Section 1621’s exception (and was consistent with other federal immigration laws).

In De Vries, a new challenger raised a question the California Court of Appeal regarded as not already resolved in Martinez: Given that the California Constitution generally places the University under the Regents’ authority and outside the California Legislature’s control, but that Section 1621 requires “the enactment of a State law,” is it possible to satisfy both the California Constitution and Section 1621’s exception in extending tuition and financial aid benefits at the University?

The challenger argued that it is not, because only the state Legislature may invoke Section 1621’s exception, but the Legislature did not and could not make policy for the University. The Regents responded to this Catch-22 theory, explaining that either the Legislature’s actions in AB 540 (and the similar laws authorizing financial aid) sufficiently “provided for eligibility,” as the exception requires, or the Regents’ policies in that area were themselves sufficient (because the Regents possesses lawmaking authority over the University)—and, if nothing else, the actions of the Legislature and the Regents in combination sufficed.

The Court of Appeal concluded that the California Legislature’s actions satisfied the exception in Section 1621. (It expressly left open the question whether the Regents alone could have invoked that exception.) The court explained that the exception in Section 1621 speaks only of conferring “eligibility,” so it was beside the point that, under the California Constitution, the Regents rather than the Legislature had to confer ultimate entitlement to benefits on University students. On that understanding, the court found as a matter of state law that the Legislature had conferred eligibility and thereby satisfied Section 1621, even though the Regents retained ultimate control of whether to confer particular benefits on particular students.

The Munger Tolles attorneys representing the UC Regents were Bradley S. Phillips and Benjamin J. Horwich.