By Mountain States Legal Foundation
MichNews.com
Oct 31, 2005

Students and parents of students may sue Kansas officials to enforce a federal law barring states from granting in-state tuition to illegal aliens, the sponsors of the federal legislation argued in a brief filed today at the U.S. Court of Appeals for the Tenth Circuit.

U.S. Senator Alan K. Simpson (R-WY), Retired, and U.S. Representative Lamar S. Smith (R-21 TX) said in a friend of the court brief filed in the Tenth Circuit that Congress intended to create a private right of action allowing citizens to enforce the federal bar. The legislation was adopted as an amendment to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA); the amendment passed the Senate by a vote of 97 to 3 and passed the House of Representatives by a vote of 333 to 87. The brief was filed in support of a number of students and parents whose lawsuit challenging the Kansas law was dismissed for lack of standing, that is, the right to sue.

“The Kansas district court erred when it ruled that these individuals had no right to sue to enforce this federal law, which was adopted to reduce the influx of illegal aliens into this country,� said William Perry Pendley of Mountain States Legal Foundation, which represents Senator Simpson and Congressman Smith. “This matter should proceed to the merits!�

In July 2004, notwithstanding the enactment by Congress of the provision, sponsored by Senator Simpson and Representative Smith, barring illegal aliens from receiving in-state tuition unless U.S. citizens are eligible for such a benefit without regard to residency, Kansas enacted a statute that allows such benefits. According to the Kansas statute: any person (1) who attended an accredited Kansas high school for three years and who either graduated or earned a Kansas general education development certificate and (2) who meets the law’s other criteria is eligible to pay in-state tuition even though the individual is illegally in the United States.

Ms. Kristen Day and others contend that the Kansas statute unlawfully and unfairly allows undocumented or illegal aliens to attend Kansas’ universities and pay resident in-state tuition. On July 19, 2004, Ms. Day and others initiated a lawsuit in U.S. District Court for the District of Kansas challenging the statute. On July 5, 2005, the suit was dismissed for lack of standing and the plaintiffs appealed to the U.S. Court of Appeals for the Tenth Circuit

In their brief, Senator Simpson and Representative Smith said that Congress intended to create a private right of action. In fact, Senator Simpson included an affidavit to that effect.

Mountain States Legal Foundation is a nonprofit, public interest law firm dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in Denver, Colorado, metropolitan area.