http://www.hutchnews.com/news/regional/ ... 2506.shtml

Monday, September 25, 2006 - 03:52 PM

Tuition law is back in courts

10th Circuit will rule not on the merits of the law, but whether or not it can be challenged in court

By Sarah Kessinger

Harris News Service


kessinger@dailynews.net

TOPEKA - Attorneys for the state of Kansas will head to the U.S. Court of Appeals in Denver next week for another round of arguments in a lawsuit challenging a college tuition law for illegal immigrant students.

A Washington, D.C.-based group seeking stricter immigration limits is appealing the case, which it brought on behalf of students from outside Kansas who attend the Sunflower State's public universities.

A federal district judge in Topeka dismissed the case last year saying the plaintiffs lacked standing because the law didn't harm them.

The appeal is set to go before a three-judge panel of the 10th Circuit Court of Appeals on Wednesday.

"It's certainly our view that the case was decided in district court and that the district court judge will be reaffirmed," said California attorney Peter Roos, who argued for immigrant advocacy groups that joined forces to defend the law at the Topeka trial.

The merits of the court challenge won't be considered, only whether plaintiffs have a right to sue. If the appeals court rules, perhaps by early next year, in favor of the plaintiffs, then the case would be sent back to district court in Topeka for consideration on its merits.

"The district court never answered the fundamental question of whether Kansas has violated federal immigration law and the equal protection clause of the U.S. Constitution," said University of Missouri-Kansas City law professor Kris Kobach, the attorney for the Federation for American Immigration Reform that brought the action.

The 2004 law allows undocumented immigrants to pay tuition to the state's public colleges and universities at the in-state rate, which at universities is much cheaper than the out-of-state tuition paid by non-resident students.

The immigrant students must have attended a Kansas high school for three years and graduated or earned a general education development certificate. They also must sign an affidavit pledging to apply for U.S. citizenship when eligible.

FAIR filed the lawsuit shortly after the law passed.

Some of the student plaintiffs have since graduated and are no longer a part of the case, Kobach said.

"If the 10th Circuit rules in our favor, it doesn't mean we win it, it just means the case is remanded back to district court because it never reached the central merits of the case," Kobach said. "There could still be a rather long path ahead."

The arguments in Denver come at the same time that illegal immigration continues to draw attention in this year's race for governor.

GOP gubernatorial candidate Jim Barnett, an Emporia state senator, has criticized Gov. Kathleen Sebelius for her support of the tuition law.

Barnett claims it entices illegal immigrants to move to Kansas.

Sebelius says it's a matter of economic development because the state needs an educated workforce.

In a separate case, FAIR also is attempting to get a state judge to strike down California's in-state tuition law. Kobach argued the case there, but no ruling had been issued as of Friday.

Melinda Lewis, who lobbies for El Centro, an immigrant advocacy organization in Kansas City, said FAIR has had little success so far in its national campaign against such laws.

"They're an organization with pretty deep pockets and through their spending on relatively frivolous lawsuits, they have the ability to keep this issue alive in the press," Lewis said.

The group failed to convince legislators to repeal the statute in Kansas and some of the 10 other states where similar laws exist. The latest was passed last session in Nebraska, where lawmakers overrode a governor's veto.


09/25/2006; 02:35:46 AM