OLR Research Report

August 8, 2005




By: Saul Spigel, Chief Analyst

You asked for an analysis of the recent U.S. District Court decision in Day v. Sibelius (Case No. 04-4085-RDR), a case challenging a Kansas law making undocumented immigrants eligible for in-state tuition at state colleges and universities.


A Kansas law that took effect on July 1, 2004 makes eligible for in-state tuition at Kansas public colleges anyone who (1) attends an accredited high school in the state for at least three years, (2) graduates or earns a general education development (GED) certificate in Kansas, and (3) is admitted to or enrolls in a Kansas college. If the person is “without lawful immigration status” that is, an undocumented alien, he must also have filed an affidavit with the college stating that he or his parents have applied to legalize his immigration status or will do so as soon as he is eligible. This law is similar to a 2005 Connecticut bill, sHB 6793, which failed in a House vote.

U.S. citizens who were nonresident students at Kansas's public colleges and their parents challenged the law in federal district court. They claimed that it violated federal laws and regulations, was preempted by federal immigration law, and unconstitutionally violated their right to equal protection. They asked the court to (1) enjoin the governor, the Board of Regents, and the registrars of three state universities (the defendants) from enforcing the law as it applied to illegal aliens and from discriminating between students classified as legal residents and themselves and (2) invalidate the Kansas law as violating the U.S. constitution and federal law.

On July 5, 2005, Judge Richard D. Rogers granted the defendants' request for summary judgment and dismissed the case on procedural, rather than substantive, grounds. He dismissed six of the counts after concluding that the plaintiffs lacked standing to bring suit. He dismissed the other count after concluding the federal law in question did not give the plaintiffs a private right of action to sue.


The plaintiffs made seven claims concerning the Kansas law (K.S.A. 76-731a). It:

1. violated the federal law (8 U.S.C 1621) that prohibits a state, with limited exceptions, from offering any postsecondary education benefit, including in-state tuition, to illegal aliens;

2. violated another federal law (8 U.S.C. 1623), which the plaintiffs argued prohibits a state from offering any postsecondary education benefit, including in-state tuition, to illegal aliens unless a U.S. citizen is eligible for the same benefit;

3. violated the federal government's comprehensive scheme to govern admission of nonimmigrant aliens to the U.S. to attend college;

4. was preempted by federal law, which clearly intended to “occupy the field” in regulating public benefits for illegal aliens;

5. created residence status for illegal aliens and therefore violated the comprehensive federal scheme for aliens;

6. violated Congress' exclusive power to regulate interstate and foreign affairs; and

7. violated the U.S. Constitution's equal protection clause by giving illegal aliens state postsecondary school benefits to which they are not entitled under federal law while denying to nonresident U.S. citizens identical benefits to which federal law expressly entitles them.


Five Counts Dismissed for Lack of Standing

The court dismissed five counts (1, 3, 4, 5, and 6, above) on the grounds that the plaintiffs did not have “standing” to bring them. In order to bring a suit in federal court, a plaintiff must show

1. that he is “injured-in-fact,” that is, a concrete and specific legally protected interest has been injured or is imminently threatened (i.e., not conjecturally or hypothetically);

2. the cause of the injury is fairly traceable to the defendant's conduct, not some third party who has not been sued; and

3. a favorable court decision can redress the injury.

The court determined that none of the plaintiffs were subject to the Kansas law and consequently had no legally protected interest that could be harmed by it. They paid out-of-state tuition before the law was enacted, and they continued to pay it after. The court dismissed the plaintiffs' arguments that (1) they were forced to pay out-of-state tuition while illegal aliens paid in-state rates and (2) that as out-of-state residents they had a property right in in-state tuition. Even if they did prove the latter contention, the court said, they failed to show that the Kansas law had increased their tuition.

The court also determined that the plaintiffs were not specifically affected by any of the specific immigration laws they cited or by general U.S. immigration law. They stood “in the same shoes as any citizen,” which was not sufficient to give them standing to sue.

Finally, the court found that the plaintiffs failed to show that a favorable decision on these counts would redress any injury to them. If the court held that the Kansas law violated or was preempted by federal law, they would receive no benefit. A favorable decision might cause undocumented aliens to pay higher tuitions, but the plaintiffs' tuition would not change.

Equal Protection Count Dismissed for Lack of Standing

The plaintiffs argued (count 7) that the Kansas law created two classes of similarly situated non-Kansas residents—undocumented aliens and U.S. citizens residing outside Kansas. They claimed that the law gave undocumented aliens in-state tuition benefits to which they

were not entitled under federal law while denying them to nonresident U.S. citizens although federal law expressly entitled them to this benefit. This, they asserted, violated their constitutional right to equal protection.

The court held that the plaintiffs did not have standing to pursue this claim. As in their other claims, the court stated that in pursuing an equal protection claim the plaintiffs had to show that they were injured-in-fact. In equal protection cases it said, citing a U.S. Supreme Court decision, injury-in-fact is the “denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit” (id. p 34).

The court found (1) that the Kansas law did not bar the plaintiffs' admission to Kansas universities and (2) that the exception from the normal tuition scheme Kansas provided illegal aliens was no different than similar exceptions it (and other states) lawfully provides for other people (e.g., university employees, military personnel and their spouses). The court also found that the Kansas law did not increase the plaintiffs' tuition rates. Consequently, it held that the plaintiffs were unable to establish sufficient injury to establish standing.

Count Dismissed for Lack of Private Right to Action

The court agreed that the plaintiffs had standing to pursue their claim (count 2) that the Kansas law violated the federal law prohibiting a state from offering any post-secondary education benefit, including in-state tuition, to illegal aliens unless U.S. citizens are eligible for the same benefit (8 U.S.C. 1623). But it then dismissed the claim on the grounds that the federal law did not permit individuals to sue to enforce it.

The court explained at length the evolution of case law on the subject of determining if a particular law provides a private right of action, eventually indicating that under current judicial thinking the test comes down to “…whether Congress expressly or by implication, intended to create a private cause of action.” Congressional intent is determined by (1) language that explicitly confers rights on a class of people that includes the plaintiff or that identifies the class for whose benefit the statute was enacted or (2) at the relation between the specific provision at issue and the related statutory scheme (id. p. 27).

The court held that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, codified in part at 8 USC 1623, does not explicitly give individuals a remedy to enforce immigration laws and, in fact, specifically makes the Homeland Security secretary responsible for

enforcement. It rejected several plaintiffs' arguments, including that the law expressly gave them a right of action as U.S. citizens granted eligibility for a post-secondary education benefit, even if not a state resident.