Connecticut laws/regulations; Other States laws/regulations; Federal laws/regulations; Court Cases; Background;

OLR Research Report

December 9, 2010




By: Terrance Adams, Legislative Analyst II

You asked whether other states allow illegal immigrants to pay in-state tuition at public colleges and universities and whether any prohibit it. You also asked for a summary of past legislation in Connecticut on this matter, the fiscal impact of such legislation, and the status of court challenges in other states. This report updates OLR Report 2008-R-0178.


According to the National Conference of State Legislatures (NCSL), 10 states allow illegal immigrants to pay in-state tuition at public colleges and universities, three states explicitly prohibit the practice, and one state allows its colleges and universities to decide for themselves. Additionally, three states prohibit illegal immigrants from attending some or all public colleges and universities.

Connecticut has considered this issue several times in recent years, most notably in 2007 when the legislature passed PA 07-135, which would have allowed illegal immigrants who meet certain criteria to qualify for in-state tuition. However, the governor vetoed it. The Office of Fiscal Analysis (OFA) projected that the act would have produced a revenue loss for UConn but a revenue gain for the Connecticut State University (CSU) system and the community-technical colleges (CTC).

We found four states where in-state tuition laws were challenged in court. The most notable of these was in California, where the state's Supreme Court upheld an in-state tuition law.


Table 1 lists the states that have taken action with respect to in-state tuition for illegal immigrants.

Table 1: State Policies on In-State Tuition for Illegal Immigrants

Allow In-State Tuition

Allow Colleges and Universities Discretion to Award In-State Tuition

Explicitly Prohibit In-State Tuition

Prohibited from Attending Some or All Public Colleges and Universities





New Mexico

New York











South Carolina

Source: NCSL

Generally, laws allowing illegal immigrants to pay in-state tuition require the students to:

1. reside in the state and attend a state high school for one to three years,

2. graduate from a state high school or attain the recognized equivalent,

3. be admitted to a public college or university in the state, and

4. submit an affidavit stating they have filed for legal immigration status or will file when they are eligible. (Currently, illegal immigrants who apply for student visas or lawful permanent resident status are subject to deportation. Thus, they are not eligible to apply until federal law is amended to allow them to do so.)

The first laws allowing in-state tuition were passed in 2001 by California and Texas. The most recent law was passed by Wisconsin in 2009. According to NCSL, New Mexico and Texas also allow illegal immigrants to receive state financial assistance.

Previously, Oklahoma law allowed illegal immigrants to pay in-state tuition. However, in 2007 the legislature repealed this law, instead allowing the Oklahoma Board of Regents the discretion to grant in-state tuition to illegal immigrants who meet certain criteria. These criteria are similar to those listed above, except that a student must graduate from high school; a GED is no longer sufficient. Currently, the board still permits illegal immigrants to pay in-state tuition.

Prohibit Attendance

In 2008, South Carolina passed legislation (the South Carolina Illegal Immigration Reform Act) prohibiting illegal immigrants from attending any of the state's public colleges and universities. According to NCSL, it is currently the only state with such a ban. In Alabama and Georgia, the prohibitions are not codified in state law, but rather were enacted by college and university governing boards and only apply to some of the states' schools.

In Alabama, the State Board of Education in 2008 banned illegal immigrants from attending the state's two-year colleges. Additionally, North Carolina's State Board of Community Colleges enacted such a ban in 2008, but repealed it in 2009.

In Georgia, the Board of Regents of the University System of Georgia voted in October 2010 to prohibit illegal immigrants from attending any school in the system at which academically qualified applicants had been denied admission in the previous two years. Georgia's policy will initially apply to five of the system's 35 schools. According to media reports, state lawmakers will consider legislation in the upcoming session to ban illegal immigrants from all of the state's public colleges and universities.


PA 07-135

In 2007, the legislature passed PA 07-135, An Act Concerning Access to Postsecondary Education. It extended in-state tuition status to illegal immigrants residing in Connecticut who meet certain criteria. By law, with limited exceptions, determination of in-state tuition status is based on an applicant's domicile, that is, his or her “true, fixed and permanent home” and the place where he intends to remain and return to when he or she leaves. Illegal immigrants are not considered to be domiciled in Connecticut.

Under the act, anyone, except a nonimmigrant alien (someone with a visa permitting temporary entrance to the country for a specific purpose), qualified for in-state tuition if he or she:

1. resided in Connecticut;

2. attended any educational institution in the state and completed at least four years of high school here;

3. graduated from a high school in Connecticut, or the equivalent; and

4. was registered as an entering student, or was already a student at, UConn, CSU, CTC, or Charter Oak State College.

By law, “resides” means continuous and permanent physical presence within the state. The establishment of residence is not affected by temporary absence for short periods of time.

An illegal immigrant must also file an affidavit with the college stating that he or she has applied to legalize his or her immigration status or will do so as soon as he or she is eligible to apply.

Governor Rell vetoed the act. In her veto message, she argued that the underlying issue facing the students was that they were not legal U.S. residents and that the act did nothing to address that. She stated that Connecticut should instead wait for federal immigration reform before enacting in-state tuition legislation. She also expressed concern that the act could encourage individuals to circumvent federal immigration law.

Fiscal Impact

According to OFA's fiscal note, the act would have resulted in a potential revenue loss to UConn and a potential revenue gain to the other constituent units of higher education.

It noted that UConn was at or near its enrollment capacity and that providing in-state tuition rates to students that would not otherwise pay such rates would result in lost revenue if these students would have gone to the university regardless of the tuition rate or if they replaced an out-of-state student.

OFA reported that CSU and CTC would potentially gain revenue if additional students chose to attend school as a result of lower tuition rates. It stated that CSU and CTC were not at full capacity and would not be replacing out-of-state students. OFA acknowledged that students currently paying out-of-state rates at CSU and CTC would pay lower rates as a result of the act, but that revenue loss from those students would be minimal in the scope of each unit's tuition fund.


We found four states where in-state tuition laws were challenged in court. The most notable of the cases was in California (Martinez v. Regents of the University of California, 2010 Cal. LEXIS 12298), which thus far is the only case to be decided on a law's merits.


In a unanimous decision, the California Supreme Court on November 15, 2010 upheld the state's in-state tuition law (Ed. Code, 68130.5), reversing a decision by the state's Court of Appeal.

State Law. Section 68130.5 is similar to other states' laws which were described previously. A notable exception is that California's law is not limited to California residents, thus allowing certain nonresident U.S. citizens and other legal residents to qualify for in-state tuition. For example, if an out-of-state student attends and graduates from a California boarding school, he or she would be eligible for in-state tuition. Other eligible students are those who grew up California, moved elsewhere for a period of time, and then return for graduate study.

Issues and Procedural History. The plaintiffs alleged that they were U.S. citizens illegally required to pay nonresident tuition in California instead of paying in-state tuition. They raised a number of challenges to California's law, some of which were rejected by a lower court, the Court of Appeal. However, the Court of Appeal ruled for the plaintiffs on several grounds, the most significant of which was that California's law violated federal law. According to 8 U.S.C. 1623:

Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a state (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident (8 U.S.C. 1623(a)).

Further, federal law requires state laws extending benefits to illegal immigrants to affirmatively state that illegal immigrants are eligible for the benefits (8 U.S.C. 1621(d)).

The Court of Appeal ruled that California's law (1) made illegal immigrants eligible for a benefit (in-state tuition) on the basis of residence without making all U.S. citizens eligible for the same benefit and (2) did not include a sufficient affirmative statement.

The Court of Appeal also ruled that (1) federal law impliedly preempted California's law and (2) California's law violated the privileges and immunities clause of the 14th Amendment of the U.S. Constitution.

Both sides appealed the decision, with the California Supreme Court granting the defendants' petition and denying the plaintiffs'.

Holding. The California Supreme Court reversed the Court of Appeal, holding that California's law did not award in-state tuition on the basis of residence and thus did not violate 8 U.S.C. 1623. It also found that California's law (1) specifically referred to “a person without lawful immigration status,” thus meeting the requirement of 8 U.S.C. 1621; (2) was not impliedly preempted by federal law; and (3) did not violate the privileges and immunities clause.

Analysis. The bulk of the court's analysis focused on the California law's relationship to 8 U.S.C. 1623. The court stated that if Congress had wanted to ban illegal immigrants from receiving in-state tuition, it could have easily done so. Instead, noted the court, while the federal law prohibits in-state tuition from being awarded to illegal immigrants on the basis of residence, it is not a complete ban; it allows states to award in-state tuition based on other factors.

The court found that the state law awarded in-state tuition on factors besides residence, such as attending a California high school for three years and earning a diploma or its equivalent. It overruled the Court of Appeal's holding that the attendance and graduation requirements were surrogates for residence, noting that (1) many nonresidents of California benefit from the law and (2) not all illegal immigrants who reside in California are eligible to benefit from it.

With respect to 8 U.S.C. 1621, the court rejected the Court of Appeal's ruling that the state law must specifically reference the federal statute, noting that, unlike other federal statutes, 1621 contained no such reference requirement. The Supreme Court ruled that California's law, which explicitly stated that “undocumented immigrant students” qualified for the benefit, satisfied 1621's affirmative provision requirement.

The Supreme Court also found that California's law is not impliedly preempted by federal law. The Court of Appeal had ruled that the state law stood as an “obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” However, the Supreme Court noted that 8 U.S.C. 1621 did not impliedly preempt state law. Instead, the federal law went the other way, expressly allowing states to provide certain public benefits if they do so in compliance with federal law (8 U.S.C. 1621(c)).

Lastly, the court rejected the plaintiffs' privileges and immunities clause argument. This clause prohibits states from making or enforcing any law abridging the privileges and immunities of U.S. citizens, and the plaintiffs argued that California's law denigrated U.S. citizens and placed them in a disfavored position compared with illegal immigrants. However, the court stated that “it cannot be the case that states may never give a benefit to unlawful aliens without giving the same benefit to all U.S. citizens.” It also ruled that there is no federal right for nonresidents of a state to pay in-state tuition, noting that the U.S. Supreme Court has upheld the practice of charging different tuition amounts based on residence.

Other States

In 2005, a federal district court in Kansas dismissed a lawsuit (Day v. Sebelius (Case No. 04-4085-RDR)) that challenged the state's in-state tuition law (see OLR Report 2005-R-0586). The case was decided on procedural grounds, as the court dismissed six of the plaintiffs' seven claims for lack of standing and dismissed the remaining claim for lack of a private right of action to sue. In 2007, the Tenth Circuit Court of Appeals upheld this decision.

The other two cases were filed in state courts in Nebraska (Mannschreck v. Board of Regents) and Texas (Immigration Reform Coalition of Texas v. Texas) within the past year and are still pending.