msnbc.com staff and news service reports
updated 11/15/2010 5:12:46 PM ET 2010-11-15T22:12:46

The California Supreme Court weighed in Monday on the politically charged immigration fray when it ruled that illegal immigrants are entitled to the same tuition breaks offered to in-state high school students to attend public colleges and universities.

While the ruling applies only to California, the case was closely watched nationally because nine other states, including New York and Texas, have similar laws.

Republican congressmen Lamar S. Smith of Texas and Steve King of Iowa filed a so-called friends of the court brief urging that illegal immigrants be denied the reduced rate.

The lawsuit considered by the court was part of a broader legal assault led by immigration legal scholar Kris Kobach, who has filed numerous cases across the country seeking to restrict the rights of illegal immigrants.

He represented a group of U.S. students who filed the lawsuit seeking to invalidate the California law.

Vote: Should illegal immigrants be eligible for in-state tuition rates?

Kobach did not return a phone call seeking comment about the ruling in California.

A unanimous state Supreme Court, led by politically conservative Justice Ming Chin, said the California provision was constitutional because U.S. residents also had access to the reduced rates.

The California Legislature passed the controversial measure in 2001 that allowed any student, regardless of immigration status, who attended a California high school for at least three years and graduated to qualify for in-state tuition at the state's colleges and universities. In-state tuition saves each state college student about $11,000 a year and each University of California student about $23,000 a year.

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A state appellate court ruled in 2008 the law was unconstitutional after a group of out-of-state students who are U.S. citizens filed a lawsuit. The suit alleged the measure violated federal prohibitions barring illegal immigrants from receiving post-secondary benefits not available to U.S. citizens based on state residency.

However, the state Supreme Court noted the California law says nothing about state residency, a distinction that foes of the plan said shouldn't matter. The Sacramento-based Pacific Legal Foundation, which supports numerous political efforts, said the spirit of federal law was to deny tuition breaks to illegal immigrants.

"This court has received many briefs making policy arguments for and against section 68130.5's tuition exemption. We have received arguments that section 68130.5 affords deserving students educational opportunities that would not otherwise be available and, conversely, arguments that it flouts the will of Congress, wastes taxpayers' money, and encourages illegal immigration," the Supreme Court ruling noted.

"But this court does not make policy. Whether Congress's prohibition or the Legislature's exemption is good policy is not for us to say. Rather, we must decide the legal question of whether California's exemption violates Congress's prohibition or is otherwise invalid."

Foundation attorney Ralph Kasarda, who submitted a friend-of-the-court brief in the case, said California was not in sync with the federal mandate against showing favoritism to illegal immigrants.

"California's policy is also atrocious financial stewardship," he said.

Read the court ruling (PDF)

The state law also requires illegal immigrants who apply for the in-state tuition to swear they will attempt to become U.S. citizens. The applicants are still barred from receiving federal financial aid.

"Through their hard work and perseverance, these students have earned the opportunity to attend UC," said University of California president Mark G. Yudof. "Their accomplishments should not be disregarded or their futures jeopardized."

Kobach also failed to invalidate a similar law in Kansas. His lawsuit in Nebraska is pending.

The law professor was the chief drafter of Arizona's tough new laws against illegal immigrants, which is pending before a federal appeals court.

He was elected earlier this month to serve as secretary of state in Kansas.

Democratic leaders in Washington, D.C., are mulling whether to try to pass immigration reform measures before they lose control of the House of Representatives in January.

During his re-election campaign, Senate Majority Leader Harry Reid, D-Nev., promised to try to get a vote on the "DREAM Act," which would create a path to citizenship for youth living in the country illegally who attend college or join the military.

White House spokesman Luis Miranda said the administration welcomes any opportunity for Congress to take up the proposal. The legislation "is important to both our national security and our economy," Miranda said.

Meanwhile, retiring Republican Florida Rep. Lincoln Diaz-Balart is seeking a vote on proposed legislation giving states the option to allow illegal immigrant students to pay in-state tuition.

"Allowing undocumented students to attend primary and secondary schools but requiring that they pay out-of-state tuition for college creates an unfair financial burden," Diaz-Balart said.

The Associated Press contributed to this report.

Vote: Should illegal immigrants be eligible for in-state tuition rates?