5:04-cv-04085-RDR-JPO Document 1-1 Filed 07/19/2004

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

MS. KRISTEN DAY; MRS. SONNA L.

)

DAY; MR. CODY ECHOLS; MR. DAVID cJ

EICHMAN; MS. BRANDI P. GILLETTE; )

MR. CHRISTOPHER 1. HEATH; MS. AMY )

E. HUGHES; MRS JERALDYN L. HUGHES; MR. KENNETH H. HUGHES;

) ~

MS. NICOLE C. KEENE; MS. HEIDI L. )

LANDHERR; MS. ROBERTA K.

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MACGREGOR; MR. ROBERT R. MANZEL;)

MRS. KARLA A. MANZEL; MS. KAYLAL.)

MANZEL; MR. JONATHAN D. MILLER; )

MRS. MARY L. MILLER; MS. LASHONDA)

M. MONTGOMERY; MS. MICHELLE

)

PRAHL; MR. KYLE ROHDE; MS. MARCY)

R. RUTAN; MR. JOSHUA B. SHEADE; MS.)

JAMIE WHITTENBERG; and MS.

)

LINDSEY D. WHITTINGTON,

~

CIVIL ACTION CASE NO. 04-4085-JAR
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

)

Plaintiffs,

)

)

vs.

)

)

MRS. KATHLEEN SEBELIUS, personally )

and in her official capacity as Governor of )

Kansas; MR. REGINALD L. ROBINSON, )

personally and in his official capacity as

)

President and Chief Executive Officer, Kansas)

Board of Regents, MR. ROBERT HEMENWAY, personally and in his official

) ~

capacity as Chancellor ofthe University of )

Kansas; DR. JON WEFALD, personally and )

in his official capacity as President of Kansas )

State University at Manhattan; and DR. KAY )

SCHALLENKAMP, personally and in her )

official capacity as President of Emporia State)

University,

)

)

Defendants.

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INTRODUCTION Plaintiffs, by and through their undersigned attorneys, bring this complaint against the Defendants, their agents and successors in office, and in support thereof aver the following: 1. Plaintiffs are United States citizens enrolled in a course of study for an undergraduate or graduate degree at a public university of the State of Kansas, who have been classified under Kansas law as non-residents for purposes ofpayment of tuition, fees and certain other expenses. 2. Plaintiffs bring this civil action for declaratory and injunctive relief against the Governor, the President of the Board of Regents and the Presidents of the Kansas public postsecondary educational institutions where the plaintiffs, or their dependent children, are enrolled as students. 3. Plaintiffs seek relief from implementation by Defendants of Kansas House Bill 2145 which, effective July 1, 2004, made certain aliens present in Kansas "without lawful immigration status" eligible for valuable post-secondary education benefits, including classification as a legal resident of Kansas for purposes of determining eligibility for payment of tuition, fees and other subsidized expenses at rates not available to nonresidents. 4. Plaintiffs further seek prospective relief from treatment by Defendants as nonresidents, including relief from payment ofnonresident tuition, for so long as Defendants continue the unconstitutional and unlawful practices alleged in this Complaint.

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I. Jurisdiction and Venue 5. This Court has jurisdiction under 28 U.S.C. § 1331 because this case arises under the Constitution and laws of the United States, under 28 U.S.c. § 1343 because this case seeks to redress the deprivation under color of state law of rights guaranteed by the Constitution ofthe United States, and under 28 U.S.c. 2201 (Declaratory Judgment Act). 6. Subject matter jurisdiction is present. Plaintiffs as private parties sue Defendant state officers for prospective injunctive and declaratory relief from an ongoing violation of the Constitution and federal immigration laws. This suit requires the interpretation of federal law . 7. Defendants do not possess Eleventh Amendment immunity or qualified immunity when sued in their official capacity for prospective injunctive or declaratory relief to end the statutory and constitutional violations alleged in this complaint. Ex parte Young, 209 U.S. 123, at 159-60 (l908). See also Timpanogos Tribe v. Conway, 286 F.3d 1195, at 1205 (lOth Cir. 2002); Ramirez v. Oklahoma Dept. ofMental Health, 41 F.3d 584,588-89 (lOth Cir. 1994); Russ v. Uppah, 972 F.2d 300 (lOth Cir. 1992); and Nelson v. Gerringer, 295 F.3d 1082 (lOth Cir. 2002). The Eleventh Amendment does not bar suits brought to end a continuing violation of federal law. Cornforth v. Univ. of Okla Bd. ofRegents (263 F.3d 1129 (10th Cir. 2001). 8. Defendants do not possess qualified immunity in their capacity as government officials from complaints for injunctive relief. Wyatt v. Cole, 504 U.S. 158 (l992). See also Kikamura v. Hurley, 242 F.3d 950, at 956 (10th Cir. 2001). 9. Under 28 U.S.c. 1391, venue is proper in the United States District Court for the District of Kansas because all of the Defendants are located in the District of Kansas.

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II. Plaintiffs 10. KRISTEN DAY is a United States citizen who has been classified as a nonresident undergraduate student at Kansas State University and as a dependent of Sonna L. Day. 11. SONNA L. DAY is a United States citizen who is not a resident of Kansas and is the mother of Kristen Day. CODY ECHOLS, DAVID C. EICHMAN, BRANDI P. GILLETTE, are United States citizens who have been classified as nonresident undergraduate students at Kansas State University. 12. CHRISTOPER J. HEATH, NICOLE C. KEENE, HEIDI L. LANDHERR, KAYLA L. MANZEL LASHONDA M. MONTGOMERY, MICHELLE PRAHL, KYLE ROHDE, and LINDSEY D. WHITTINGTON are United States citizens who have been classified as nonresident undergraduate students at the University of Kansas. 13. AMY E. HUGHES is United States citizen who is a resident of Kansas but who has been classified as a non-resident undergraduate student at Kansas State University because her parents are employed in Texas. 14. KENNETH H. and JERALDYN L. HUGHES are United States citizens and are the parents of Amy E. Hughes. Mr. and Mrs. Hughes are residents of Kansas, but are employed at present in Texas. 15. ROBERTA K. MACGREGOR is a United States citizen who has been classified as a nonresident graduate student at Emporia State University. 16. ROBERT R. and KARLA A. MANZEL are United States citizens who are not residents of Kansas and are the parents of Kay1a L. Manzel.

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17. JONATHAN D. MILLER is a United States citizen who has been classified as a nonresident undergraduate student at the University of Kansas and as a dependent of Mary L. Miller. 18. MARY L. MILLER is a United States citizen who is not a resident of Kansas and is the mother of Jonathan D. Miller. 19. JAMIE WHITTENBERG is a United States citizen who has been classified as a nonresident graduate student at Kansas State University. 20. Student Plaintiffs will suffer significant financial injury, in excess of $1 0,000 per student during the period of study for an undergraduate or graduate degree program, as well as deprivation of constitutionally protected rights, when aliens unlawfully present in the United States are deemed to be residents of Kansas, and thus receive valuable state and local public benefits that are denied to Plaintiffs. 21. Parent Plaintiffs, who are held jointly responsible under Kansas state regulations for the added expenses incurred when their student dependants are denied status as Kansas residents on an equal basis with aliens present in Kansas without lawful immigration status, suffer similar financial and legal injuries to student Plaintiffs.
III. Defendants 22. HONORABLE KATHLEEN SEBELIUS is Governor of Kansas. 23. MR. REGINALD L. ROBINSON is President and Chief Executive Officer of the Kansas Board of Regents. 24. DR. ROBERT HEMENWAY is Chancellor ofthe University of Kansas. 25. DR. JON WEFALD is President of Kansas State University. 26. DR. KAY SCHALLENKAMP is President of Emporia State University.

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27. Defendants, upon information and belief, are responsible for establishing or enforcing regulations and policies to implement the provisions of HB 2145 at Kansas public postsecondary educational institutions.
IV. The Statutory Framework 28. The Kansas statutes applicable to this complaint are as follows: a. KS.A. § 74-3201b(h), defining "postsecondary educational institution." b. KS.A. § 76-729, providing the basic rule, certain authorized exceptions, and
legal definitions regarding the residence of students for fee purposes. c. KS.A. § 76-730 (2003), providing for the adoption by the Board of Regents of
rules and regulations for criteria and guidelines regarding the residence of students for fee purposes, and establishing student residence committees for each postsecondary education institution. d. The full text of these statutes is provided in Exhibit A. 29. The Kansas Administrative Regulations relevant to this complaint are as follows: a. KA.R. § 88-3-1. Student Information. Prescribes the text of an informational statement to be provided to any person whenever a question arises concerning their residence classification for fee purposes. b. KS.A. § 88-3-2. Definition of "residence" for fee purposes. c. KA.R. § 88-3-10. Kansas high school graduates. Provides separate criteria applicable to certain recent high school graduates seeking classification as a resident for fee purposes. d. The full text of these statutes is provided in Exhibit B. 30. The Federal Statutes relevant to this complaint are as follows: a. 8 U.S.c. 1601. Statements of national public policy concerning welfare and immigration.
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b. 8 U.S.C. 1611. Aliens who are not qualified aliens ineligible for Federal public benefits.
c. 8 U.S.C. 1621. Aliens who are not qualified aliens or nonimmigrants ineligible for State and local public benefits.
d. 8 U.S.C. 1623. Limitation on eligibility for preferential treatment of aliens not lawfully present on basis ofresidence for higher education benefits.
e. The full text ofthese statutes is provided in Exhibit C.
V. Factual Allegations
31. On May 20, 2004, Kansas Governor Kathleen Sebelius signed into law Kansas House
Bill (HB) 2145, "An Act concerning public postsecondary education; concerning certain
persons deemed to be residents for purposes oftuition and other fees at postsecondary
educational institutions."
32. The full text ofHB 2145, as enacted, is as follows:
"Section 1. (a) Any individual who is enrolled or has been accepted for admission at a postsecondary educational institution as a postsecondary student shall be deemed to be a resident of Kansas for the purpose of tuition and fees for attendance at such postsecondary educational institution. (b) As used in this section: (1) "Postsecondary educational institution" has the meaning ascribed thereto in K.S.A. 74-3201b, and amendments thereto; and (2) "individual" means a person who (A) has attended an accredited Kansas high school for three or more years, (B) has either graduated from an accredited Kansas high school or has earned a general educational development (GED) certificate issued within Kansas, regardless of whether the person is or is not a citizen of the United States of America; and (C) in the case of a person without lawful immigration status, has filed with the postsecondary educational institution an affidavit stating that the person or the person's parents have filed an application to legalize such person's immigration status, or such person will file such an application as soon as such person is eligible to do so or, in the case of a person with a legal, nonpermanent immigration status, has filed with the postsecondary educational institution an affidavit stating that such person has filed an application to begin the process for citizenship of the United States or will file such application as soon as such person is eligible to do so.
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(c) The provisions of this section shall not apply to any individual who: (1) Has a valid student visa; or (2) at the time of enrollment, is eligible to enroll in a public postsecondary educational institution located in another state upon payment of fees and tuition required of residents of such state. (d) Any individual who: (1) Files an affidavit which contains false information; (2) fails to file an application to legalize such person's immigration status within one year of becoming eligible; (3) fails to begin the process for citizenship within one year of becoming eligible; or (4) fails to maintain an active application for citizenship after filing therefore shall not be deemed a resident of the state of Kansas for the purpose oftuition and fees. In addition, such individual shall be required to repay the difference between the amount of fees and tuition actually paid and the amount such person would have paid as a nonresident of the state of Kansas, plus interest at a rate not to exceed the maximum under K.S.A. 16-201, and amendments thereto, for the time such individual was enrolled as a resident pursuant to this section."
"Sec. 2. This act shall take effect and be in force from and after its publication in the statute book."
33. HB 2145 became effective on July 1, 2004.
34. Upon information and belief, during the Spring 2004 term:
a. The University of Kansas enrolled 27,772 students, of whom
1,675 were classified as non-residents, 1,662 were classified as foreign
students, and 8,512 were identified as non-United States citizens.
b. Kansas State University enrolled 20,490 students, of whom 3,473
were classified as non-residents, 959 were classified as foreign students,
and 959 were identified as non-United States citizens, and
c. Emporia State University enrolled 5,856 students, of whom 655
were classified as non-residents, 144 were classified as foreign students,
and 140 were identified as non-United States citizens.
35. Upon information and belief, undergraduate tuition for twelve credit hours
during the Fall 2004 term, has been set as follows:

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a. For the University of Kansas, at $1,665 for a resident undergraduate, $4,846.80 for a nonresident undergraduate, $2,145.60 for a resident graduate student, and $5,509.20 for a nonresident graduate student. b. For Kansas State University at Manhattan, at $1,921.50 for a resident undergraduate, $5,425.50 for a nonresident undergraduate, $2.605.50 for a resident graduate student, and $6,217.50 for a nonresident graduate student. c. For Emporia State University, at $1,518 for a resident undergraduate, $4,878 for a nonresident undergraduate, $1,758 for a resident graduate student, and $4,942 for a nonresident graduate student.
VI. Claims for Relief FIRST CLAIM FOR RELIEF VIOLATION OF 8 V.S.c. 1621
36. Plaintiffs incorporate by reference ~~ 1 through 35 above. 37. It is the intent of Congress as well as a compelling governrnent interest to remove the incentive for illegal immigration provided by the availability of public benefits. 8 U.S.c. 1601(6). 38. It is a national policy that aliens within the Nation's borders do not depend on public resources to meet their needs, and that the availability of public benefits should not constitute an incentive for immigration to the United States. 8 U.S.c. 1601(2). 39. An alien unlawfully present in the United States ("illegal alien") is not a "qualified alien" as defmed in 8 U.S.c. 1641. 40. Since 1996, aliens who are not "qualified aliens" have been ineligible, with certain narrow exceptions not relevant here, to receive "any" federal public benefits. Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA"), P.L.

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104-193, Title IV, Subtitle A, §401, 110 Stat. 2261 (Aug. 22,1996), codified as 8 U.S.C. 1611(a). 41. The definition ofa federal benefit includes" ... any... postsecondary education... or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States." 8 U.S.C. 1611(c)(1)(B). 42. Since 1996, a non-U.S. citizen who is neither a "qualified alien" as defined in 8 U.S.c. 1641, nor an alien with valid nonimmigrant status under the Immigration and Nationality Act, nor an alien paroled into the United States under INA §212(d)(5), is ineligible for any State or local public benefit. Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA"), P.L. 104-193, Title IV, Subtitle B, §411, 110 Stat. 2268, codified as 8 U.S.c. 1621(a). 43. The defmition ofa State or local benefit includes" ... any... postsecondary education... or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds ofa State or local government." 8 U.S.c. 1621(c). 44. Kansas state government agencies that are classified as "postsecondary educational institutions" under Kansas law K.S.A. § 74-3201b(h), including the University of Kansas and Kansas State University, are bound by the restrictions of 8 U.S.c. 1621. Payment of tuition at greatly reduced rates is therefore as a matter oflaw a state or local benefit forbidden to illegal aliens. 45. PRWORA provided States or local governments with a single loophole by which an alien who is not lawfully present in the United States may be made eligible for a State or local public benefit. Such eligibility may be provided "only through the enactment of
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a State law after August 22, 1996, which affrrmatively provides for such eligibility." 8 U.S.C. 1621(d). 46. The legislative history of8 U.S.C. 1621(d) makes clear that any state seeking to provide public benefits to illegal aliens, and to avoid the general prohibition of such benefits under 8 U.S.C. 1621, must specify that "illegal aliens" are eligible for such benefits and must reference 8 U.S.C. 1621(d). 104th Cong., 2nd Session., Conference Report No. 104-725 on H.R. 3734 (July 31, 1996), at 383:
"No current State law, State constitutional provision, State executive order or decision of any State or Federal court shall provide a sufficient basis for a State to be relieved of the requirement to deny benefits to illegal aliens. Laws, ordinances, or executive orders passed by county, city or other local officials will not allow those entities to provide benefits to illegal aliens. Only the affirmative enactment ofa law by a State legislature and signed by the Governor after the date of enactment ofthis Act, that references this provision, will meet the requirements of this section. The phrase "affirmatively provides for such eligibility" means that the State law enacted must specify that illegal aliens are eligible for State or local benefits. Persons residing under color of law shall be considered to be aliens unlawfully present in the United States and are prohibited from receiving State or local benefits, as defined, regardless of the enactment of any State law." [Emphasis added.]
47. HB 2145 does not meet the statutory requirements of the loophole in 8 U.S.C 1621(d):
a. The terms "illegal alien" and "alien who is not lawfully present in the United States" are used synonymously in 8 U.S.C. 1621(d). In contrast, the undefined term "person without lawful immigration status" is used in HB 2145. b. HB 2145 does not specify that "illegal aliens" are eligible for State or local benefits, thus fails to use the express statutory language required by federal law. c. HB 2145 does not even reference the provisions of8 U.S.c. 1621(d), as intended by Congress.
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d. HB 2145 fails to restrict persons deemed to be residing in Kansas under color of law from receiving State or local benefits. e. HB 2145 requires Defendants to authorize Kansas postsecondary educational institutions to provide State and local benefits to aliens "without lawful immigration status." 48. Plaintiffs are among the classes of United States citizens for whose specific benefit and protection 8 U.S.C. 1621 was enacted by Congress. 49. Implementation ofHB 2145 by the Kansas postsecondary educational institutions directed by the Defendants violates and will continue to violate 8 U.S.C. 1621 unless and until judicial relief is granted.
SECOND CLAIM FOR RELIEF VIOLATION OF 8 V.S.c. 1623 50. Plaintiffs incorporate by reference ~~ 1 through 49 above. 51. 8 U.S.C. 1623(a) expressly bars an alien who is not lawfully present in the United States from eligibility, on the basis of residence within a State or a political subdivision therein, for "any [emphasis added] postsecondary education benefit," unless a United States citizen is eligible for the same benefit (in no less an amount, duration, and scope) without regard to whether the citizen is a resident. 52. 8 U.S.C. 1623 was enacted subsequent to both the enactment and the effective dates of8 U.S.c. 1621(d). Illegal Immigration Reform and Immigrant Responsibility Act ("IIRAIRA") §505, P.L. 1-04-208, Div. C, title V, Subtitle A, §505, 110 Stat. 3009672 (September 30, 1996). Section 1623 applies to benefits provided on or after July 1, 1998. 8 U.S.C. 1623(b).
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53. By subsequently enacting 8 U.S.C. 1623, which contains the phrase "notwithstanding any other provision oflaw, " Congress superceded the provisions of8 U.S.C.1621 in the area of "any postsecondary education benefit" in two ways. 54. First, Congress eliminated the application of8 U.S.c. 1621(d) to "any [state or local] postsecondary education benefit." By enacting 8 U.S.c. 1623, Congress withdrew the fleeting authority to provide a state postsecondary education benefit to an illegal alien that it had delegated (for a period oflitt1e over one month in mid-1996) to the legislature ofthe state of Kansas. 55. Second, Congress significantly expanded the scope of the public secondary education benefits to which the provisions of8 U.S.C. 1623 applied. As used in 8 U.S.c. 1623(a), the scope ofthe phrase "any postsecondary education benefit" is broader than the scope of the phrase" ...any... postsecondary education... or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds ofa State or local government" used in 8 U.S.C. 1621(c). 56. As used in Section 1623, the definition of "any postsecondary education benefit" is thus no longer restricted to those benefits that constitute "payments or assistance ... by an agency of a State or local government or by appropriated funds of a State or local government." Section 1623 sweeps more widely, to encompass "any" postsecondary educational benefit, including benefits that are not "payments" to the non-citizen student or his family. Such benefits vary from institution to institution and must include, but are not necessarily limited to, privileges such as preferences in admission, enrollment, instruction, increased access to financial aid, reduced tuition, exemption from state or local taxation on the basis of admission or enrollment as a student, and other discounted, subsidized, or restricted services or benefits that are from time to time provided to
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students lawfully enrolled at a Kansas postsecondary education institution, but not to the general public. 57. 8 U.S.C. 1623 prohibits States from offering illegal aliens any postsecondary education benefit "on the basis of residence within a State." HB 2145 violates this prohibition and provides such benefits on the basis of residence in three ways. First, as of July 1, 2004, Defendants are now required, under HB 2145, Section 1 (a), to "deem" certain aliens without lawful immigration status "to be legal residents of Kansas." Such deeming is solely for the purpose of making such illegal aliens eligible for postsecondary education benefits. Thus, HB 2145 contravenes 8 U.S.c. 1623 by operating on the basis of residence. 58. Second, under HB 2145, Section 1(b)(2)(A), Defendants are required to offer a postsecondary education benefit to illegal aliens who have attended accredited Kansas high schools for three or more years. Eligibility to attend an accredited Kansas high school is based on residency within the State of Kansas. As the Kansas Supreme Court
noted in Blaine v. Board 0/Education, residency in the state of Kansas triggers a
constitutional and statutory right "to attend our public schools." 502 P.2d 693, 704 (S. Ct. Kan. 1972) (referring to Nutt v. Board o/Education, 278 P. 1065 (S. Ct. Kan. 1929)). Thus, it is an illegal alien's Kansas residency that entitles him to attend a Kansas high school, which in tum entitles him to postsecondary education benefits under HB 2145. In this way as well, HB 2145 contravenes 8 U.S.C. 1623. 59. Third, under HB 2145, Section 1(c)(2), an alien who is eligible for fees and tuition for "residents" of another state is deemed ineligible for the postsecondary education benefit offered by the State of Kansas. Thus, being a resident of another state disqualifies an illegal alien from obtaining this education benefit. Therefore, only an illegal alien who is a resident of Kansas is eligible to receive the postsecondary
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education benefit offered under HB 2145. This eligibility violates 8 U.S.C. 1623. So long as such eligibility exists, Defendants are in violation of federal law. 60. HB 2145 also requires Defendants to deny nonresident U.S. citizen plaintiffs eligibility for those same postsecondary education benefits in the same amount, duration, and scope, as they are offered to the aliens without lawful immigration status who, pursuant to HB 2145, are deemed to be legal residents of Kansas. So long as such denials must occur under color of Kansas state law, Defendants are in violation of federal law. 61. Plaintiff students and parents of dependent students are among the classes of United States citizens for whose specific benefit and protection 8 U.S.C. 1623 was enacted by Congress. 62. Unless and until judicial reliefis granted, implementation ofHB 2145 by Kansas postsecondary educational institutions under the direction of the Defendants violates and will continue to violate 8 U.S.C. 1623.
THIRD CLAIM FOR RELIEF VIOLATION OF REGULATIONS GOVERNING ALIEN STUDENTS 63. By implementing HB 2145, Defendants violate the comprehensive regulatory scheme enacted by the federal government to govern the admission of nonimmigrant aliens to the United States for the purpose of enrolling them as students at postsecondary educational institutions. This comprehensive regulatory scheme is codified at 8 U.S.c. 1101 (a)(15)(F) and (M); P.L. 104-208 (IIRAIRA) §641(1997); 8 C.F.R. 214.2,214.3 and 214.4. 64. Alien students at postsecondary academic institutions are also subject to the general conditions of admissions applicable to all nonimmigrants, in particular the requirement to obtain and maintain legal status. 8 U.S.c. 1182(a)(6)(A); 8 U.S.C.
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1251(a)(1)(C)(i); 8 U.S.C. 1202(g). Each academic institution accepting nonimmigrant alien students must first petition to accept nonimmigrant students on Form 1-17 and designate a foreign student advisor known as a Principal Designated School Official (PDSO) who is responsible to maintain the institution's Student and Exchange Visitor System (SEVIS) in conformity with federa11aw and regulations. 8 C.F.R. 214.3. Approval of an institution may be revoked for failure to comply with federal immigration statutes or regulations. 8 U.S.C. 214.4. 65. The provision of affirmative postsecondary education benefits to aliens who are known to Defendants to have been unlawfully present in the United States for at least three years, by means of an impermissible state determination that such aliens are members of one of five arbitrary state immigration classifications and thereby deemed to be legal state residents, while at the same time Defendants have knowingly waived the requirement that the PDSOs under the Defendant's control observe the federal procedures required to admit such aliens in a nonimmigrant student status (or in some other lawful immigration status which permits attendance at an institution for postsecondary academic study), violates 8 U.S.C. 1101(a)(15)(F) and (M); P.L. 104-208 (IIRAIRA) §641(1997); 8 C.F.R. 214.2, 214.3 and 214.4. 66. The SEVIS registration system was implemented to serve the compelling national interest of preventing alien terrorists from concealing their activities in the United States by posing as university students. HB 2145 frustrates this federal purpose by allowing aliens to illegally pose as students at Kansas institutions of higher education while remaining outside the SEVIS registration system. This not only violates the federal regulations cited above, it endangers U.S. national security.
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FOURTH CLAIM FOR RELIEF PREEMPTION
67. Plaintiffs incorporate by reference ~~ 1 through 66 above. 68. Federal immigration law, codified in Title 8 of the United States Code, is a complex regulatory scheme that regulates, inter alia, the authorized residence status of aliens. Gonzales v. City ofPeoria, 722 F.2d 468, at 474-475 (9th Cir. 1983). 69. HB 2145 is a scheme for the state regulation of immigration that contravenes federal law. For the purposes of determining eligibility for postsecondary education benefits pursuant to HB 2145, Defendants are deliberately prohibited from adhering to mandatory federal standards that determine whether a non-citizen is lawfully resident in the United States. 70. Defendants must instead implement an independent and arbitrary set of statutory criteria that purport to classify applicants to Kansas postsecondary educational institutions based on a state-defined immigration status. HB 2145 requires Kansas postsecondary educational institutions to determine eligibility of applicants for state and local postsecondary education benefits using a new multi-pronged, state-created immigration status classification of "individual." The immigration classification of "individual", as defined by HB 2145, is not found in or recognized under any federal law or regulation, and thus is an illegal regulatory scheme that contravenes federal immigration law. 71. The new state immigration classification of "individual" mandated by HB 2145 subsections 1(b) and 1(c) in fact creates at least five new distinct immigration classifications operative only in Kansas:
(I) A person who is not a United States citizen and does not possess a valid "student" (F) visa, but has some other "lawful immigration status" other than "a legal nonpermanent immigration status," who has attended an accredited Kansas
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high school for at least three years and has either graduated from such high school or has earned a GED certificate issued within Kansas. (2) A person without lawful immigration status who has nonetheless attended an accredited Kansas high school for at least three years, who has either graduated from such high school or has earned a GED certificate issued within Kansas, and who has filed an affidavit with the postsecondary educational institution stating that such person (or the person's "parents") have "filed an application to legalize such person's immigration status." (3) A person described in (2), except that the person (or the person's "parents") has not filed the subject application to "legalize" his or her "immigration status," but will do so "as soon as such person is eligible to do so." (4) A person who is an alien with "a legal, non-permanent immigration status," but who does not possess a valid "student" (F) visa, who has nonetheless attended an accredited Kansas high school for at least three years and has either graduated from such high school or has earned a GED certificate issued within Kansas, and who has filed an affidavit with a Kansas postsecondary education institute stating that he or she "has filed an application to begin the process for citizenship ofthe United States." (5) A person described in (4), except that he or she is not eligible to "file[] an application to begin the process for citizenship of the United States" but will do so "as soon as such person is eligible to do so." 72. The unlawful regulatory scheme ofHB 2145 also prescribes, in subsections l(b) and 1(c), unique State-imposed criteria for eligibility for state or local public benefits that contain the following undefined sub-elements, which are not found in federal law and are not otherwise authorized by Congress:
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(a) "Lawful immigration status."

(b) "Legal nonpermanent immigration status."

(c) "An application to legalize a person's immigration status."

(d) "An application to begin the process for citizenship of the United States."

(e) The "soonest" date a person is "eligible" to file an application described in

(c) or (d).

73. There is no indication in the language ofHB 2145 or its legislative history of the

meaning of the five undefined phrases, although state officials are required to apply

these terms when adjudicating the residency status of certain non-citizen applicants.

74. State law is preempted in any area where Congress intended to "occupy the field." U. S. Constitution Article VI, cl. 2; Gibbons v. Ogden, 9 Wheat. 1, at 211 (1824); Savage v. Jones, 225 U.S. 501, at 533 (1912); California v. ARC America

Corp., 490 U.S. 93, at 101 (1989). 75. Congress clearly intended to "occupy the field" in the area of regulating the

provision of public benefits to aliens without a lawful immigration status. The power to

regulate immigration is unquestionably an exclusively federal power, and any state

statute that regulates immigration is unconstitutional and therefore proscribed. De

Canas v. Bica, 424 U.S. 351, at 354-55 (1976). States can neither add to nor take from

conditions lawfully imposed upon the admission or residence of aliens in the United

States. Takahashi v. Fish & Game Comm 'n, 334 U.S. 410, at 419 (1948). Congress has

frrmly established that there is a significant public interest in the effective enforcement

u.s. of immigration law.

v. Brignoni-Ponce, 422 U.S. 873, at 878 (1975); INS v.

Miranda, 459 U.S. 14, at 19 (1982).

76. Even if Congress had not occupied the field, a state statute is preempted to the

extent it conflicts with an existing federal statute. Hines v. Davidowitz, 312 U.S. 52, at

66-67 (1941); ARC America Corp., supra, at 100-101.

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Case 5:04-cv-04085-RDR-JPO Document 1-1 Filed 07/19/2004 Page 20 of 30
77. HB 2145 is preempted because it is impossible for a person who is an illegal alien or otherwise unlawfully present in the United States to both receive postsecondary education benefits under HB 2145, and to comply with federal immigration law. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, at 142-143 (1963). 78. HB 2145 is also preempted by federal law because it requires officials of Kansas postsecondary educational institutions, under the direction of the Defendants, to define, determine, and adjudicate the application of immigration classifications and procedures that do not exist under federal law to alien applicants for admission. 79. HB 2145 is also preempted because it is "an obstacle to the accomplishment and execution ofthe full purposes and objectives of Congress," in particular the enforcement of immigration law, as articulated in 8 U.S.C. 1601. 80. By deeming certain illegal aliens to be "individuals" who are legal residents of Kansas for purposes of eligibility for postsecondary education benefits, HB 2145 is intended to and in fact resists and impedes the enforcement of immigration law by federal officials, and is therefore generally preempted by the Supremacy Clause of the United States Constitution. U.S. Constitution Article. VI Cl.2; McCulloch v. Maryland, 17 U.S. 316 (1819).
FIFTH CLAIM FOR RELIEF CREATION OF RESIDENCE STATUS CONTRARY TO FEDERAL LAW 81. Plaintiffs incorporate by reference ~~ 1 through 80 above. 82. Prior to the enactment and implementation ofHB 2145, Kansas law, in accordance and conformity with federal law, did not permit illegal aliens to qualify as legal or domiciliary residents of Kansas for purposes of resident tuition payment. KS.A. 76-729.
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Case 5:04-cv-04085-RDR-JPO Document 1-1 Filed 07/19/2004 Page 21 of 30
83. Congress has created a legal disability under federal law that renders illegal aliens incapable of claiming bona fide legal domicile in Kansas, notwithstanding the fact of physical presence or a subjective "intent" to remain indefinitely in the jurisdiction. 84. An alien may only establish his or her legal domicile in a state if not otherwise precluded by the Immigration and Nationality Act from establishing residence in the United States. 8 U.S.C. 1101, et seq.; Elkins v. Moreno, supra, at 666. Only the federal government, pursuant to federal immigration law and regulations, may regulate and determine the authorized residence status of aliens. Gonzales v. City ofPeoria, supra, at 475. 85. Legal residence and domicile in Kansas are based on physical presence and intent, objectively determined, to remain and reside in Kansas indefinitely, and are substantially equivalent in meaning. See Kansas Attorney General Gp. 90-138, 1990 Kan. AG LEXIS 39 (1990). See also the definitions of residence and domicile in K.S.A. 77-201 and K.A.R. 92-12-4. 86. Congress intended that aliens who seek to establish domicile without an adjustment of status, while in an immigration classification which prohibits permanent residence, are to be deported. Elkins v. Moreno, 435 U.S. 647, at 664-65 (1978). Illegal aliens are detainable and deportable, and may be barred for ten years or more from reapplying for legal admission to the United States. 8 U.S.C. 1182(a)(9)(B), INA §212(a)(9)(B). 87. In the case of non-citizens, the existence of a legal disability to the establishment of domicile is exclusively a matter of federal law. Martinez v. Bynum, 461 U.S. 321 (1983), citing Nyquist v. Maudet, 432 U.S. 1 (1977); Carlson v. Reed, 249 F.3d 876 (9th Cir. 2001) [in-state resident tuition denied]; Hein v. Arkansas State Univ., 972 F. Supp 1175 (E.D. AR 1997) [in-state resident tuition denied]. In Elkins v. Moreno, supra, the
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Case 5:04-cv-04085-RDR-JPO Document 1-1 Filed 07/19/2004 Page 22 of 30
U.S. Supreme Court remanded the question of whether an alien without lawful immigration status could possess the required intent to establish domicile to the Maryland Court of Appeals. The Maryland Court of Appeals clearly articulated the principle oflaw at issue, and its application to illegal aliens in the context of eligibility for resident tuition. Toll v. Moreno, 284 Md. 425, at 442-43 (1979):
"If under federal law a particular individual must leave this country at a certain date, or cannot remain here indefinitely, then he could not become domiciled in Maryland. Any purported intent to live here indefinitely would be inconsistent with law. It would at most be an unrealistic subjective intent, which is insufficient under Maryland law." 88. None of the class of alien beneficiaries ofHB 2145 who are illegal aliens possess federal authorization to remain in the United States for even the shortest period of time, and therefore cannot, as a matter of law acquire or possess the requisite intent to be a legal resident or domiciliary of Kansas. Kansas may not deem such non-citizens to possess such intent, nor alternatively waive such intent by exercise of its legislative powers. 89. By arbitrarily deeming certain illegal aliens to be legal residents of Kansas by operation of state law HB 2145, where no provision for such classification exists in federal law or regulation, Defendants violate the comprehensive federal regulatory scheme for aliens contained in Chapter 12 (Immigration and Nationality), Chapter 13 (Immigration and Naturalization Service), and Chapter 14 (Restricting Welfare and Public Benefits For Aliens, and Chapter 15 (Enhanced Border Security and Visa Entry
Reform) of Title 8 ofthe United States Code, popularly known as federal immigration law.
SIXTH CLAIM FOR RELIEF INFRINGEMENT UPON EXCLUSIVE FEDERAL POWERS 90. Plaintiffs incorporate by reference ~~ 1 through 89 above.
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91. Regulation by state statute of the terms and conditions under which illegal

aliens may enter the State of Kansas in violation of federal law and obtain state

postsecondary education benefits, which the State denies to U.S. citizen and alien legal

residents of other states, impermissibly infringes on Constitutional powers reserved to

the federal government.

92. By implementation ofHB 2145, Defendant state executive officers violate

multiple clauses of the United States Constitution that vest the conduct of foreign

affairs in the federal government, almost to the exclusion of individual states and local

governments. U.S. Constitution, Article I Section 8, Clause 1 (General police power to

provide for common defense and general welfare), Clause 3 (Interstate Commerce),

Clause 4 (Naturalization), Clause 10 (Offenses against Law of Nations) and Clause 11

(War and Capture Powers), and Section 10, Clause 1 (Powers denied to States), Clause

2 (Imposts and Duties) and Clause 3 (State compacts); Crosby v. National Foreign

Trade Council, 530 U.S. 363 (2000). Implementation ofHB 2145 by defendants will

impermissibly encourage, induce and abet the travel and transport of aliens into and

across the United States from abroad in violation of federal immigration law and

foreign policy, in order that such aliens may engage in the federally prohibited action

of enrollment and study without federal authorization at a Kansas public postsecondary

educational institution, for the purpose of remaining indefinitely in the United States.

93. By implementation ofHB 2145, Defendants violate, under color of state law,

the exclusive Congressional plenary power over interstate commerce. Such federal

u.s. power applies to the regulation of immigration. Hoke v.

227 U.S. 308, at 320

(1913); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Compagnie

Francaise De Navigation A Vapeur v. Louisiana State Bd. ofHealth, 186 U.S.

380 (1900).

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Case 5:04-cv-04085-RDR-JPO Document 1-1 Filed 07/19/2004 Page 24 of 30
94. Congress has enacted a comprehensive federal scheme (labor certification) for the regulation of interstate and international commerce in immigrant and nonimmigrant alien labor, whose purpose is the protection of wages and working conditions of United States workers. 8 U.S.c. I I53(b)(3)(C), 8 U.S.C. I I54(b), and 8 U.S.c. 1182(a)(5)[employment-based immigrants; 8 U.S.c. IIOI(a)(15)(E), (H) and (L); 8 U.S.c. 1184, and North American Free Trade Act Annex 1603.D.l. [temporary nonimmigrant workers]. Implementation ofHB 2145 by Defendants violates this comprehensive protective scheme by unlawfully providing state-funded financial incentives for illegal aliens to obtain skills with which such aliens may and will unlawfully compete with Plaintiffs for employment opportunities. The classification of illegal aliens as residents of Kansas for purposes of eligibility for postsecondary education benefits has a regulatory effect on commerce both in Kansas, the receiving state, and the foreign states from which the illegal alien applicants have been unlawfully transported. 95. For so long as illegal aliens are permitted, encouraged, and induced by the Defendants to enter Kansas and apply for and receive such benefits, without regard for the federal statutory standards protecting U.S. worker wages and working conditions, the implementation of HB 2145 will constitute an impermissible regulation of interstate
commerce. Heart ofAtlanta Motel, Inc. v. U. s., 379 U.S. 241, at 254 (1964).
SEVENTH CLAIM FOR RELIEF VIOLATION OF EQUAL PROTECTION CLAUSE OF U.S. CONSTITUTION 96. Plaintiffs incorporate by reference ~~ 1 through 95 above. 97. Defendants, by acting under color of state law to implement HB 2145, will extend postsecondary education benefits to a particular class of persons in the United States. Specifically, Defendants will extend such benefits to nonimmigrant aliens
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Case 5:04-cv-04085-RDR-JPO Document 1-1 Filed 07/19/2004 Page 25 of 30
known to be unlawfully present in the United States for at least three years, whom the State of Kansas has impermissibly determined to be members of one of five arbitrary state immigration classifications, and deemed therefore to be legal residents ofthe State of Kansas. 98. Illegal aliens have been deemed by Defendants to be Kansas residents for the express purpose of affording such aliens state postsecondary education benefits to which they are not entitled under federal law. Defendants have further denied nonresident U.S. citizen Plaintiffs the identical postsecondary education benefits to which they are expressly entitled by federal law. 99. State laws that draw distinctions on the basis of alienage must meet the requirements of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Graham v. Richardson, 403 U.S. 365, 367 (1971). State laws that discriminate between U.S. citizens and illegal aliens in the extension of educational benefits are evaluated under "heightened" review, rather than mere rational basis review. Plyer v. Doe, 457 U.S. 202, 238 (1982)(Powell, 1., concurring)(citing Craig v. Boren, 429 U.S. 190 (1976)). Accordingly, the State's discriminatory treatment of Defendants can only withstand constitutional challenge if it serves important governmental objectives and is substantially related to those objectives. Craig v. Boren, 492 U.S. 190, 197 (1976). 100. Discriminating against U.S. citizens in favor of illegal aliens in the provision of postsecondary education benefits does not serve any important government objective. Awarding valuable benefits to individuals whose presence in the United States constitutes an ongoing violation of federal law plainly undermines the general governmental objective ofpromoting the rule of law. Moreover, any purported government interest in encouraging higher education in the State's workforce is
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------------------------------------------------------------------------------------------------,
Case 5:04-cv-04085-RDR-JPO Document 1-1 Filed 07/19/2004 Page 26 of 30
unpersuasive, because the illegal alien recipients of such postsecondary education benefits are not legally eligible to remain in the State of Kansas after completing their courses of study. 101. Defendants, by acting under color of state law to implement HB 2145, will also discriminate in the extension of postsecondary education benefits between illegal aliens and aliens who are lawfully present in the United States and in possession of "a valid student visa." Lawfully present aliens are expressly denied such benefits in HB 2145, Section 1(c)(1). This distinction expressly rewards those aliens who have violated federal law with a benefit that is denied to those aliens who have complied with federal law. Such a distinction constitutes an incentive to violate federal law and cannot even survive rational basis review. 102. Implementation ofHB 2145 by Defendants will violate the constitutional rights of Plaintiff U.S. citizens to equal protection of the law under the Fourteenth Amendment, by denying Plaintiffs eligibility to apply for and receive similar postsecondary education benefits on an equal basis. This Court may grant Plaintiffs declaratory and injunctive relief pursuant to 42 U.S.c. 1983.
PRAYER FOR DECLARATORY RELIEF 103. Plaintiffs incorporate by reference ~~ 1 through 102 above. 104. An actual controversy exists between Plaintiffs and Defendants regarding the legality, constitutionality, and enforceability by the Defendants ofHB 2145. 105. Plaintiffs are entitled to a declaration on the constitutionality and legality of the challenged state statute.
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Case 5:04-cv-04085-RDR-JPO Document 1-1 Filed 07/19/2004 Page 27 of 30
PRAYER FOR INJUNCTIVE RELIEF 106. Plaintiffs incorporate by reference ~~ 1 through 105 above. 107. Plaintiff's claims meet the standard for injunctive relief because (1) they have no adequate remedy at law; (2) they will suffer immediate and continuing harm if required to pay significantly greater tuition and expenses associated with nonresident status; (3) Plaintiffs are likely to succeed on the merits of their claims; and (4) Defendants will suffer no harm in being denied the opportunity to implement HB 2145 in the circumstances alleged in this case pending resolution of the merits of the case. Issuance of the injunction will retain the status quo.
WHEREAS, because of the actions alleged above, Plaintiffs respectfully ask this Court to grant the following relief:
A. That a preliminary and a permanent injunction be issued enjoining the Defendants in perpetuity from enforcing HB 2145 with respect to the provision of postsecondary education benefits to aliens who are unlawfully present in the United States.
B. That HB 2145 be declared to be in violation of federal law and unconstitutional as applied to the provision of postsecondary education benefits to aliens who are unlawfully present in the United States; and
C. That the Defendant's be further enjoined from discriminating between Plaintiffs and students who have been classified as legal residents of Kansas, as regards admission and enrollment practices, charges for tuition and fees, and any other services or facilities provided by Kansas postsecondary educational institutions, until such time as this Court is informed that the illegal and unconstitutional practices embodied in HB 2145 are no longer in effect; and
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Case 5:04-cv-04085-RDR-JPO Document 1-1 Filed 07/19/2004 Page 28 of 30 D. That Plaintiffs recover from Defendants all of Plaintiffs reasonable
attorney's fees, expenses, and costs under 42 U.S.C. 1988, as this Court deems just and proper; and
E. That Plaintiffs be granted any further relief as the Court deems just and proper.
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Dated: July 19, 2004

~~}{{!6 Attorney at Law Kansas Bar No. 17280 9159 Kessler Overland Park, KS 66212 Telephone: 913-638-5567 Facsimile: 816-235-5276 E-mail: kobachk@umkc.edu
Attorney for Plaintiffs
Of Counsel:
Michael M. Hethmon, Esq. **
Maryland Bar District Court Md. #15719 1666 Connecticut Ave. N.W. Washington DC 20009 Telephone: 202-328-7004 Facsimile: 202-387-3447 E-mail: attomey@fairus.org
** Motion for admission pro
hac vice pending.

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Case 5:04-cv-04085-RDR-JPO Document 1-1 Filed 07/19/2004 Page 30 of 30 DESIGNATION OF PLACE OF TRIAL
Plaintiffs hereby designate Topeka, Kansas, as the place of trial.
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 Case 5:04-cv-04085-RDR-JPO Document 38-1 Filed 12/08/2004 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

MS. KRISTEN DAY; MRS. SONNA L.

)

DAY; MR. CODY ECHOLS; MR. DAVID C. )

EICHMAN; MS. BRANDI P. GILLETTE; )

MR. CHRISTOPHER J. HEATH; MS. AMY )

E. HUGHES; MRS JERALDYN L. HUGHES; MR. KENNETH H. HUGHES; MS. NICOLE C. KEENE; MS. HEIDI L. LANDHERR; MS. ROBERTA K.

) ) ) ) )

MACGREGOR; MR. ROBERT R.

)

MANZEL; MRS. KARLA A. MANZEL; MS. )

KAYLA L. MANZEL; MR. JONATHAN D. )

MILLER; MRS. MARY L. MILLER; MS. )

LASHONDA M. MONTGOMERY; MS. )

MICHELLE PRAHL; MR. KYLE ROHDE; )

MS. MARCY R. RUTAN; MR. JOSHUA B. )

SHEADE; MS. JAMIE WHITTENBERG; and MS. LINDSEY D. WHITTINGTON,

) ) )

Plaintiffs,

) )

)

vs.

)

)

MRS. KATHLEEN SEBELIUS, the Governor )

of Kansas; MR. RICHARD BOND, the

)

Chairman of the Kansas Board of Regents; )

MS. DONNA L. SHANK, MS. JANICE

)

DEBAUGE, MR. WILLIAM R. DOCKING, )

MR. LEWIS L. FERGUSON, MR. FRANK GAINES, MR. NELSON GALLE, MR. JAMES GRIER III, AND MR. DERYL W. WYNN, all Members of the Kansas Board of

) ) ) ) )

Regents; DR. CINDY DERRITT, the

)

Registrar of the University of Kansas; DR. )

MONTY NEILSEN, the Registrar of Kansas )

State University at Manhattan; and DR.

)

LEYHMANN F. ROBINSON, the Registrar )

of Emporia State University; all in their

)

official capacities,

)

)

Defendants.

) )

CIVIL ACTION CASE NO. _04-4085-JAR_________
AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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INTRODUCTION Plaintiffs, by and through their undersigned attorneys, bring this amended complaint against the Defendants, their agents and successors in office, and in support thereof aver the following: 1. Plaintiffs are United States citizens enrolled in a course of study for an undergraduate or graduate degree at a public university of the State of Kansas, who have been classified under Kansas law as non-residents for purposes of payment of tuition, fees and certain other expenses. 2. Plaintiffs bring this civil action for declaratory and injunctive relief against the Governor, the Chairman and Members of the Kansas Board of Regents, and the Registrars of the Kansas public postsecondary educational institutions where the plaintiffs, or their dependent children, are enrolled as students. 3. Plaintiffs seek relief from implementation by Defendants of Kansas House Bill 2145 which, effective July 1, 2004, made certain aliens present in Kansas “without lawful immigration status” eligible for valuable post-secondary education benefits, including classification as a legal resident of Kansas for purposes of determining eligibility for payment of tuition, fees and other subsidized expenses at rates not available to nonresidents. 4. Plaintiffs further seek prospective relief from treatment by Defendants as nonresidents, including relief from payment of nonresident tuition, for so long as Defendants continue the unconstitutional and unlawful practices alleged in this Complaint. 5. The original complaint in this matter was filed on July 19, 2004. On November 5, 2004, Defendants filed a Motion to Dismiss and Motion to Dismiss Individual Capacity Claims without Prejudice. On December 2, 2004, this Court issued an Order,
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based on a stipulation and agreement by Plaintiffs and Defendants, to substitute certain parties and withdraw Defendants’ pending motion. This amended complaint is filed in order to comply with the sixth condition of that Order. (Typographical or grammatical errors in the original complaint are also corrected.)
I. Jurisdiction and Venue 6. This Court has jurisdiction under 28 U.S.C. § 1331 because this case arises under the Constitution and laws of the United States, under 28 U.S.C. § 1343 because this case seeks to redress the deprivation under color of state law of rights guaranteed by the Constitution of the United States, and under 28 U.S.C. 2201 (Declaratory Judgment Act). 7. Subject matter jurisdiction is present. Plaintiffs as private parties sue Defendant state officers for prospective injunctive and declaratory relief from an ongoing violation of the U.S. Constitution and federal immigration laws. This suit requires the interpretation of federal law. 8. Defendants do not possess Eleventh Amendment immunity or qualified immunity when sued in their official capacity for prospective injunctive or declaratory relief to end the statutory and constitutional violations alleged in this complaint. Ex parte Young, 209 U.S. 123, at 159-60 (1908). See also Timpanogos Tribe v. Conway, 286 F.3d 1195, at 1205 (10th Cir. 2002); Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 588-89 (10th Cir. 1994); Russ v. Uppah, 972 F.2d 300 (10th Cir. 1992); and Nelson v. Gerringer, 295 F.3d 1082 (10th Cir. 2002). The Eleventh Amendment does not bar suits brought to end a continuing violation of federal law. Cornforth v. Univ. of Okla Bd. of Regents (263 F.3d 1129 (10th Cir. 2001).
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9. Defendants do not possess qualified immunity in their capacity as government officials from complaints for injunctive relief. Wyatt v. Cole, 504 U.S. 158 (1992). See also Kikamura v. Hurley, 242 F.3d 950, at 956 (10th Cir. 2001). 10. Under 28 U.S.C. 1391, venue is proper in the United States District Court for the District of Kansas because all of the Defendants are located in the District of Kansas.
II. Plaintiffs 11. KRISTEN DAY is a United States citizen who has been classified as a nonresident undergraduate student at Kansas State University and as a dependent of Sonna L. Day. 12. SONNA L. DAY is a United States citizen who is not a resident of Kansas and is the mother of Kristen Day. 13. CODY ECHOLS, DAVID C. EICHMAN, BRANDI P. GILLETTE, are United States citizens who have been classified as nonresident undergraduate students at Kansas State University. 14. CHRISTOPER J. HEATH, NICOLE C. KEENE, HEIDI L. LANDHERR, KAYLA L. MANZEL LASHONDA M. MONTGOMERY, MICHELLE PRAHL, KYLE ROHDE, and LINDSEY D. WHITTINGTON are United States citizens who have been classified as nonresident undergraduate students at the University of Kansas. 15. AMY E. HUGHES is United States citizen who is a resident of Kansas but who has been classified as a non-resident undergraduate student at Kansas State University because her parents are employed in Texas. 16. KENNETH H. and JERALDYN L. HUGHES are United States citizens and are the parents of Amy E. Hughes. Mr. and Mrs. Hughes are residents of Kansas, but are employed at present in Texas.
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17. ROBERTA K. MACGREGOR is a United States citizen who has been classified as a nonresident graduate student at Emporia State University. 18. ROBERT R. and KARLA A. MANZEL are United States citizens who are not residents of Kansas and are the parents of Kayla L. Manzel. 19. JONATHAN D. MILLER is a United States citizen who has been classified as a nonresident undergraduate student at the University of Kansas and as a dependent of Mary L. Miller. 20. MARY L. MILLER is a United States citizen who is not a resident of Kansas and is the mother of Jonathan D. Miller. 21. JAMIE WHITTENBERG is a United States citizen who has been classified as a nonresident graduate student at Kansas State University. 22. Student Plaintiffs will suffer significant financial injury, in excess of $10,000 per student during the period of study for an undergraduate or graduate degree program, as well as deprivation of constitutionally protected rights, when aliens unlawfully present in the United States are deemed to be residents of Kansas, and thus receive valuable state and local public benefits that are denied to Plaintiffs. 23. Parent Plaintiffs, who are held jointly responsible under Kansas state regulations for the added expenses incurred when their student dependants are denied status as Kansas residents on an equal basis with aliens present in Kansas without lawful immigration status, suffer similar financial and legal injuries to student Plaintiffs.
III. Defendants 24. HONORABLE MRS. KATHLEEN SEBELIUS is Governor of Kansas. 25. MR. RICHARD BOND is the Chairman of the Kansas Board of Regents. 26. MS. DONNA L. SHANK is a member of the Kansas Board of Regents.
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27. MS. JANICE DEBAUGE is a member of the Kansas Board of Regents. 28. MR. WILLIAM R. DOCKING is a member of the Kansas Board of Regents. 29. MR. LEWIS L. FERGUSON is a member of the Kansas Board of Regents. 30. MR. FRANK GAINES is a member of the Kansas Board of Regents. 31. MR. NELSON GALLE is a member of the Kansas Board of Regents. 32. MR. JAMES GRIER III is a member of the Kansas Board of Regents. 33. MR. DERYL W. WYNN is a member of the Kansas Board of Regents. 34. DR. CINDY DERRITT is the Registrar of the University of Kansas. 35. DR. MONTY NEILSEN is the Registrar of Kansas State University. 36. DR. LEYHMANN F. ROBINSON is the Registrar of Emporia State University. 37. Defendants are sued in their official capacities. 38. Defendants, upon information and belief, are responsible under the Kansas Constitution and statutes for establishing or enforcing regulations and policies to implement the provisions of HB 2145 at Kansas public postsecondary educational institutions.
IV. The Statutory Framework 39. The Kansas Statutes applicable to this complaint are as follows: a. K.S.A. § 74-3201b(h), defining “postsecondary educational institution.” b. K.S.A. § 76-719, authorizing the Board of Regents to fix tuition charges and fees
to be collected by each state educational institution. c. K.S.A. § 76-729, providing the basic rule, certain authorized exceptions, and
legal definitions regarding the residence of students for fee purposes.
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d. K.S.A. § 76-730 (2003), providing for the adoption by the Board of Regents of rules and regulations for criteria and guidelines regarding the residence of students for fee purposes.
e. The text of these statutes is provided in Exhibit A. 40. The Kansas Administrative Regulations relevant to this complaint are as follows: a. K.A.R. § 88-2-1. Residence classification. Provides that the Registrar of each
institution governed by the state board of regents shall determine the residence status for fee purposes of each student who enrolls in the institution. b. K.A.R. § 88-3-1. Student Information. Prescribes the text of an informational statement to be provided to any person whenever a question arises concerning their residence classification for fee purposes. c. K.S.A. § 88-3-2. Definition of "residence" for fee purposes. d. K.A.R. § 88-3-10. Kansas high school graduates. Provides separate criteria applicable to certain recent high school graduates seeking classification as a resident for fee purposes. e. The text of these statutes is provided in Exhibit B. 41. The United States Statutes relevant to this complaint are as follows: a. 8 U.S.C. 1601. Statements of national public policy concerning welfare and immigration. b. 8 U.S.C. 1611. Aliens who are not qualified aliens ineligible for Federal public benefits. c. 8 U.S.C. 1621. Aliens who are not qualified aliens or nonimmigrants ineligible for State and local public benefits. d. 8 U.S.C. 1623. Limitation on eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education benefits. e. The text of these statutes is provided in Exhibit C.
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V. Factual Allegations
42. On May 20, 2004, Kansas Governor Kathleen Sebelius signed into law Kansas House
Bill (HB) 2145, “An Act concerning public postsecondary education;
concerning certain persons deemed to be residents for purposes
of tuition and other fees at postsecondary educational
institutions. ”
43. The full text of HB 2145, as enacted, is as follows:
“ S ection 1. (a) Any individual who is enrolled or has been accepted for admission at a postsecondary educational institution as a postsecondary student shall be deemed to be a resident of Kansas for the purpose of tuition and fees for attendance at such postsecondary educational institution. (b) As used in this section: (1) ‘‘Postsecondary educational institution’’ has the meaning ascribed thereto in K.S.A. 74-3201b, and amendments thereto; and (2) ‘‘individual’’ means a person who (A) has attended an accredited Kansas high school for three or more years, (B) has either graduated from an accredited Kansas high school or has earned a general educational development (GED) certificate issued within Kansas, regardless of whether the person is or is not a citizen of the United States of America; and (C) in the case of a person without lawful immigration status, has filed with the postsecondary educational institution an affidavit stating that the person or the person’s parents have filed an application to legalize such person’s immigration status, or such person will file such an application as soon as such person is eligible to do so or, in the case of a person with a legal, nonpermanent immigration status, has filed with the postsecondary educational institution an affidavit stating that such person has filed an application to begin the process for citizenship of the United States or will file such application as soon as such person is eligible to do so. (c) The provisions of this section shall not apply to any individual who: (1) Has a valid student visa; or (2) at the time of enrollment, is eligible to enroll in a public postsecondary educational
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institution located in another state upon payment of fees and tuition required of residents of such state. (d) Any individual who: (1) Files an affidavit which contains false information; (2) fails to file an application to legalize such person’s immigration status within one year of becoming eligible; (3) fails to begin the process for citizenship within one year of becoming eligible; or (4) fails to maintain an active application for citizenship after filing therefore shall not be deemed a resident of the state of Kansas for the purpose of tuition and fees. In addition, such individual shall be required to repay the difference between the amount of fees and tuition actually paid and the amount such person would have paid as a nonresident of the state of Kansas, plus interest at a rate not to exceed the maximum under K.S.A. 16-201, and amendments thereto, for the time such individual was enrolled as a resident pursuant to this section. ”
“ S ec. 2. This act shall take effect and be in force from and after its publication in the statute book. ”
44. HB 2145 became effective on July 1, 2004.
45. Upon information and belief, during the Spring 2004 term:
a. The University of Kansas enrolled 27,772 students, of whom
1,675 were classified as non-residents, 1,662 were classified as foreign
students, and 8,512 were identified as non-United States citizens.
b. Kansas State University enrolled 20,490 students, of whom 3,473
were classified as non-residents, 959 were classified as foreign students,
and 959 were identified as non-United States citizens, and
c. Emporia State University enrolled 5,856 students, of whom 655
were classified as non-residents, 144 were classified as foreign students,
and 140 were identified as non-United States citizens.
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46. Upon information and belief, undergraduate tuition for twelve credit hours during the Fall 2004 term, has been set as follows:
a. For the University of Kansas, at $1,665 for a resident undergraduate, $4,846.80 for a nonresident undergraduate, $2,145.60 for a resident graduate student, and $5,509.20 for a nonresident graduate student. b. For Kansas State University at Manhattan, at $1,921.50 for a resident undergraduate, $5,425.50 for a nonresident undergraduate, $2.605.50 for a resident graduate student, and $6,217.50 for a nonresident graduate student. c. For Emporia State University, at $1,518 for a resident undergraduate, $4,878 for a nonresident undergraduate, $1,758 for a resident graduate student, and $4,942 for a nonresident graduate student.
VI. Claims for Relief FIRST CLAIM FOR RELIEF VIOLATION OF 8 U.S.C. 1621
47. Plaintiffs incorporate by reference ¶¶ 1 through 46 above. 48. It is the intent of Congress as well as a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits. 8 U.S.C. 1601(6). 49. It is a national policy that aliens within the borders of the United States do not depend on public resources to meet their needs, and that the availability of public benefits should not constitute an incentive for immigration to the United States. 8 U.S.C. 1601(2). 50. An alien unlawfully present in the United States (“illegal alien”) is not a “qualified alien” as defined in 8 U.S.C. 1641.
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51. Since 1996, aliens who are not “qualified aliens” have been ineligible, with certain narrow exceptions not relevant here, to receive “any” federal public benefits. Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”), P.L. 104-193, Title IV, Subtitle A, §401, 110 Stat. 2261 (Aug. 22, 1996), codified as 8 U.S.C. 1611(a). 52. The definition of a federal benefit includes “ …any… postsecondary education… or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States.” 8 U.S.C. 1611(c)(1)(B). 53. Since 1996, a non-U.S. citizen who is neither a “qualified alien” as defined in 8 U.S.C. 1641, nor an alien with valid nonimmigrant status under the Immigration and Nationality Act, nor an alien paroled into the United States under INA §212(d)(5), is ineligible for any State or local public benefit. Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”), P.L. 104-193, Title IV, Subtitle B, §411, 110 Stat. 2268, codified as 8 U.S.C. 1621(a). 54. The definition of a State or local benefit includes “ …any… postsecondary education… or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.” 8 U.S.C. 1621(c). 55. Kansas state government agencies that are classified as “postsecondary educational institutions” under Kansas law K.S.A. § 74-3201b(h), including the University of Kansas, Kansas State University, and Emporia State University, are bound by the restrictions of 8 U.S.C. 1621. Payment of tuition at greatly reduced rates is therefore as a matter of law a state or local benefit forbidden to illegal aliens.
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56. PRWORA provided States or local governments with a single loophole by which an alien who is not lawfully present in the United States may be made eligible for a State or local public benefit. Such eligibility may be provided “only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.” 8 U.S.C. 1621(d). 57. The legislative history of 8 U.S.C. 1621(d) makes clear that any state seeking to provide public benefits to illegal aliens, and to avoid the general prohibition of such benefits under 8 U.S.C. 1621, must specify that “illegal aliens” are eligible for such benefits and must reference 8 U.S.C. 1621(d). 104th Cong., 2nd Session., Conference Report No. 104-725 on H.R. 3734 (July 31, 1996), at 383:
“ No current State law, State constitutional provision, State executive order or decision of any State or Federal court shall provide a sufficient basis for a State to be relieved of the requirement to deny benefits to illegal aliens. Laws, ordinances, or executive orders passed by county, city or other local officials will not allow those entities to provide benefits to illegal aliens. Only the affirmative enactment of a law by a State legislature and signed by the Governor after the date of enactment of this Act, that references this provision, will meet the requirements of this section. The phrase ‘‘affirmatively provides for such eligibility’’ means that the State law enacted must specify that illegal aliens are eligible for State or local benefits. Persons residing under color of law shall be considered to be aliens unlawfully present in the United States and are prohibited from receiving State or local benefits, as defined, regardless of the enactment of any State law.” [Emphasis added.]
58. HB 2145 does not meet the statutory requirements of the loophole in 8 U.S.C 1621(d):
a. The terms “illegal alien” and “alien who is not lawfully present in the United States” are used synonymously in 8 U.S.C. 1621(d). In contrast, the undefined term “person without lawful immigration status” is used in HB 2145.
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b. HB 2145 does not specify that “illegal aliens” are eligible for State or local benefits, and thus fails to use the express statutory language required by federal law. c. HB 2145 does not even reference the provisions of 8 U.S.C. 1621(d), as intended by Congress. d. HB 2145 fails to restrict persons deemed to be residing in Kansas under color of law from receiving State or local benefits. e. HB 2145 requires Defendants to authorize Kansas postsecondary educational institutions to provide State and local benefits to aliens “without lawful immigration status.” 59. Plaintiffs are among the classes of United States citizens for whose specific benefit and protection 8 U.S.C. 1621 was enacted by Congress. 60. Implementation of HB 2145 by the Kansas postsecondary educational institutions directed by the Defendants violates and will continue to violate 8 U.S.C. 1621 unless and until judicial relief is granted.
SECOND CLAIM FOR RELIEF VIOLATION OF 8 U.S.C. 1623 61. Plaintiffs incorporate by reference ¶¶ 1 through 60 above. 62. 8 U.S.C. 1623(a) expressly bars an alien who is not lawfully present in the United States from eligibility, on the basis of residence within a State or a political subdivision therein, for “any postsecondary education benefit,” (emphasis added) unless a United States citizen is eligible for the same benefit (in no less an amount, duration, and scope) without regard to whether the citizen is a resident. 63. 8 U.S.C. 1623 was enacted subsequent to both the enactment and the effective dates of 8 U.S.C. 1621(d). Illegal Immigration Reform and Immigrant Responsibility
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Act (“IIRAIRA”) §505, P.L. 1-04-208, Div. C, title V, Subtitle A, §505, 110 Stat. 3009672 (September 30, 1996). Section 1623 applies to benefits provided on or after July 1, 1998. 8 U.S.C. 1623(b). 64. By subsequently enacting 8 U.S.C. 1623, which contains the phrase “notwithstanding any other provision of law,” Congress superceded the provisions of 8 U.S.C.1621 in the area of “any postsecondary education benefit” in two ways. 65. First, Congress eliminated the application of 8 U.S.C. 1621(d) to “any [state or local] postsecondary education benefit.” By enacting 8 U.S.C. 1623, Congress withdrew the fleeting authority to provide a state postsecondary education benefit to an illegal alien that it had delegated (for a period of little over one month in mid-1996) to the legislature of the state of Kansas. 66. Second, Congress significantly expanded the scope of the public secondary education benefits to which the provisions of 8 U.S.C. 1623 applied. As used in 8 U.S.C. 1623(a), the scope of the phrase “any postsecondary education benefit” is broader than the scope of the phrase “ …any… postsecondary education… or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government” used in 8 U.S.C. 1621(c). 67. As used in Section 1623, the definition of “any postsecondary education benefit” is thus no longer restricted to those benefits that constitute “payments or assistance… by an agency of a State or local government or by appropriated funds of a State or local government.” Section 1623 sweeps more widely, to encompass “any” postsecondary educational benefit, including benefits that are not “payments” to the non-citizen student or his family. Such benefits vary from institution to institution and must include, but are not necessarily limited to, privileges such as preferences in admission, enrollment,
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instruction, increased access to financial aid, reduced tuition, exemption from state or local taxation on the basis of admission or enrollment as a student, and other discounted, subsidized, or restricted beneficial services or benefits that are from time to time provided to students lawfully enrolled at a Kansas postsecondary education institution, but not to the general public. 68. 8 U.S.C. 1623 prohibits States from offering illegal aliens any postsecondary education benefit “on the basis of residence within a State.” HB 2145 violates this prohibition and provides such benefits on the basis of residence in three ways. First, as of July 1, 2004, Defendants are now required, under HB 2145, Section 1 (a), to “deem” certain aliens without lawful immigration status “to be legal residents of Kansas.” Such deeming is solely for the purpose of making such illegal aliens eligible for postsecondary education benefits. Thus, HB 2145 contravenes 8 U.S.C. 1623 by operating on the basis of residence. 69. Second, under HB 2145, Section 1(b)(2)(A), Defendants are required to offer a postsecondary education benefit to illegal aliens who have attended accredited Kansas high schools for three or more years. Eligibility to attend an accredited Kansas high school is based on residency within the State of Kansas. As the Kansas Supreme Court noted in Blaine v. Board of Education, residency in the state of Kansas triggers a constitutional and statutory right “to attend our public schools.” 502 P.2d 693, 704 (S. Ct. Kan. 1972) (referring to Nutt v. Board of Education, 278 P. 1065 (S. Ct. Kan. 1929)). Thus, it is an illegal alien’s Kansas residency that entitles him to attend a Kansas high school, which in turn entitles him to postsecondary education benefits under HB 2145. In this way as well, HB 2145 contravenes 8 U.S.C. 1623. 70. Third, under HB 2145, Section 1(c)(2), an alien who is eligible for fees and tuition for “residents” of another state is deemed ineligible for the postsecondary
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education benefit offered by the State of Kansas. Thus, being a resident of another state disqualifies an illegal alien from obtaining this education benefit. Therefore, only an illegal alien who is a resident of Kansas is eligible to receive the postsecondary education benefit offered under HB 2145. This eligibility violates 8 U.S.C. 1623. So long as such eligibility exists, Defendants are in violation of federal law. 71. HB 2145 also requires Defendants to deny nonresident U.S. citizen plaintiffs eligibility for those same postsecondary education benefits in the same amount, duration, and scope, as they are offered to the aliens without lawful immigration status who, pursuant to HB 2145, are deemed to be legal residents of Kansas. So long as such denials must occur under color of Kansas state law, Defendants are in violation of federal law. 72. Plaintiff students and parents of dependent students are among the classes of United States citizens for whose specific benefit and protection 8 U.S.C. 1623 was enacted by Congress. 73. Unless and until judicial relief is granted, implementation of HB 2145 by Kansas postsecondary educational institutions under the direction of the Defendants violates and will continue to violate 8 U.S.C. 1623.
THIRD CLAIM FOR RELIEF VIOLATION OF REGULATIONS GOVERNING ALIEN STUDENTS 74. Plaintiffs incorporate by reference ¶¶ 1 through 73 above. 75. By implementing HB 2145, Defendants violate the comprehensive regulatory scheme enacted by the federal government to govern the admission of nonimmigrant aliens to the United States for the purpose of enrolling them as students at postsecondary educational institutions. This comprehensive regulatory scheme is codified at 8 U.S.C.
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1101(a)(15)(F) and (M); P.L. 104-208 (IIRAIRA) §641(1997); 8 C.F.R. 214.2, 214.3 and 214.4. 76. Alien students at postsecondary academic institutions are also subject to the general conditions of admissions applicable to all nonimmigrants, in particular the requirement to obtain and maintain legal status. 8 U.S.C. 1182(a)(6)(A); 8 U.S.C. 1251(a)(1)(C)(i); 8 U.S.C. 1202(g). Each academic institution accepting nonimmigrant alien students must first petition to accept nonimmigrant students on Form I-17 and designate a foreign student advisor known as a Principal Designated School Official (PDSO) who is responsible to maintain the institution’s Student and Exchange Visitor System (SEVIS) in conformity with federal law and regulations. 8 C.F.R. 214.3. Approval of an institution may be revoked for failure to comply with federal immigration statutes or regulations. 8 U.S.C. 214.4. 77. The provision of affirmative postsecondary education benefits to aliens who are known to Defendants to have been unlawfully present in the United States for at least three years, by means of an impermissible state determination that such aliens are members of one of five arbitrary state immigration classifications and thereby deemed to be legal state residents, while at the same time Defendants have knowingly waived the requirement that the PDSOs under the Defendant’s control observe the federal procedures required to admit such aliens in a nonimmigrant student status (or in some other lawful immigration status which permits attendance at an institution for postsecondary academic study), violates 8 U.S.C. 1101(a)(15)(F) and (M); P.L. 104-208 (IIRAIRA) §641(1997); 8 C.F.R. 214.2, 214.3 and 214.4. 78. The SEVIS registration system was implemented to serve the compelling national interest of preventing alien terrorists from concealing their activities in the United States by posing as university students. HB 2145 frustrates this federal purpose
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by allowing aliens to illegally pose as students at Kansas institutions of higher education while remaining outside the SEVIS registration system. This not only violates the federal regulations cited above, it endangers U.S. national security.
FOURTH CLAIM FOR RELIEF PREEMPTION
79. Plaintiffs incorporate by reference ¶¶ 1 through 78 above. 80. Federal immigration law, codified in Title 8 of the United States Code, is a complex regulatory scheme that regulates, inter alia, the authorized residence status of aliens. Gonzales v. City of Peoria, 722 F.2d 468, at 474-475 (9th Cir. 1983). 81. HB 2145 is a scheme for the state regulation of immigration that contravenes federal law. For the purposes of determining eligibility for postsecondary education benefits pursuant to HB 2145, Defendants are deliberately prohibited from adhering to mandatory federal standards that determine whether a non-citizen is lawfully resident in the United States. 82. Defendants must instead implement an independent and arbitrary set of statutory criteria that purport to classify applicants to Kansas postsecondary educational institutions based on a state-defined immigration status. HB 2145 requires Kansas postsecondary educational institutions to determine eligibility of applicants for state and local postsecondary education benefits using a new multi-pronged, state-created immigration status classification of “individual.” The immigration classification of “individual”, as defined by HB 2145, is not found in or recognized under any federal law or regulation, and thus is an illegal regulatory scheme that contravenes federal immigration law. 83. The new state immigration classification of “individual” mandated by HB 2145 subsections 1(b) and 1(c) in fact creates at least five new distinct immigration
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classifications operative only in Kansas: (1) A person who is not a United States citizen and does not possess a valid “student” (F) visa, but has some other “lawful immigration status” other than “a legal nonpermanent immigration status,” who has attended an accredited Kansas high school for at least three years and has either graduated from such high school or has earned a GED certificate issued within Kansas. (2) A person without lawful immigration status who has nonetheless attended an accredited Kansas high school for at least three years, who has either graduated from such high school or has earned a GED certificate issued within Kansas, and who has filed an affidavit with the postsecondary educational institution stating that such person (or the person’s “parents”) have “filed an application to legalize such person’s immigration status.” (3) A person described in (2), except that the person (or the person’s “parents”) has not filed the subject application to “legalize” his or her “immigration status,” but will do so “as soon as such person is eligible to do so.” (4) A person who is an alien with “a legal, non-permanent immigration status,” but who does not possess a valid “student” (F) visa, who has nonetheless attended an accredited Kansas high school for at least three years and has either graduated from such high school or has earned a GED certificate issued within Kansas, and who has filed an affidavit with a Kansas postsecondary education institute stating that he or she “has filed an application to begin the process for citizenship of the United States.” (5) A person described in (4), except that he or she is not eligible to “file[] an application to begin the process for citizenship of the United States” but will do so “as soon as such person is eligible to do so.”
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84. The unlawful regulatory scheme of HB 2145 also prescribes, in subsections 1(b) and 1(c), unique State-imposed criteria for eligibility for state or local public benefits that contain the following undefined sub-elements, which are not found in federal law and are not otherwise authorized by Congress:
(a) “Lawful immigration status.” (b) “Legal nonpermanent immigration status.” (c) “An application to legalize a person’s immigration status.” (d) “An application to begin the process for citizenship of the United States.” (e) The “soonest” date a person is “eligible” to file an application described in (c) or (d). 85. There is no indication in the language of HB 2145 or its legislative history of the meaning of the five undefined phrases, although state officials are required to apply these terms when adjudicating the residency status of certain non-citizen applicants. 86. State law is preempted in any area where Congress intended to “occupy the field.” U.S. Constitution Article VI, cl. 2; Gibbons v. Ogden, 9 Wheat. 1, at 211 (1824); Savage v. Jones, 225 U.S. 501, at 533 (1912); California v. ARC America Corp., 490 U.S. 93, at 101 (1989). 87. Congress clearly intended to “occupy the field” in the area of regulating the provision of public benefits to aliens without a lawful immigration status. The power to regulate immigration is unquestionably an exclusively federal power, and any state statute that regulates immigration is unconstitutional and therefore proscribed. De Canas v. Bica, 424 U.S. 351, at 354-55 (1976). States can neither add to nor take from conditions lawfully imposed upon the admission or residence of aliens in the United States. Takahashi v. Fish & Game Comm’n, 334 U.S. 410, at 419 (1948). Congress has firmly established that there is a significant public interest in the effective enforcement of immigration law. U.S. v. Brignoni-Ponce, 422 U.S. 873, at 878 (1975); INS v.
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Miranda, 459 U.S. 14, at 19 (1982). 88. Even if Congress had not occupied the field, a state statute is preempted to the extent it conflicts with an existing federal statute. Hines v. Davidowitz, 312 U.S. 52, at 66-67 (1941); ARC America Corp., supra, at 100-101. 89. HB 2145 is preempted because it is impossible for a person who is an illegal alien or otherwise unlawfully present in the United States to both receive postsecondary education benefits under HB 2145, and to comply with federal immigration law. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, at 142-143 (1963). 90. HB 2145 is also preempted by federal law because it requires officials of Kansas postsecondary educational institutions, under the direction of the Defendants, to define, determine, and adjudicate the application of immigration classifications and procedures that do not exist under federal law to alien applicants for admission. 91. HB 2145 is also preempted because it is “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” in particular the enforcement of immigration law, as articulated in 8 U.S.C. 1601. 92. By deeming certain illegal aliens to be “individuals” who are legal residents of Kansas for purposes of eligibility for postsecondary education benefits, HB 2145 is intended to and in fact resists and impedes the enforcement of immigration law by federal officials, and is therefore generally preempted by the Supremacy Clause of the United States Constitution. U.S. Constitution Article. VI Cl.2; McCulloch v. Maryland, 17 U.S. 316 (1819).
FIFTH CLAIM FOR RELIEF CREATION OF RESIDENCE STATUS CONTRARY TO FEDERAL LAW 93. Plaintiffs incorporate by reference ¶¶ 1 through 92 above.
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94. Prior to the enactment and implementation of HB 2145, Kansas law-- in accordance and conformity with federal law-- did not permit illegal aliens to qualify as legal or domiciliary residents of Kansas for purposes of resident tuition payment. K.S.A. 76-729. 95. Congress has created a legal disability under federal law that renders illegal aliens incapable of claiming bona fide legal domicile in Kansas, notwithstanding the fact of physical presence or a subjective “intent” to remain indefinitely in the jurisdiction. 96. An alien may only establish his or her legal domicile in a state if not otherwise precluded by the Immigration and Nationality Act from establishing residence in the United States. 8 U.S.C. 1101, et seq.; Elkins v. Moreno, supra, at 666. Only the federal government, pursuant to federal immigration law and regulations, may regulate and determine the authorized residence status of aliens. Gonzales v. City of Peoria, supra, at 475. 97. Legal residence and domicile in Kansas are based on physical presence and intent, objectively determined, to remain and reside in Kansas indefinitely, and are substantially equivalent in meaning. See Kansas Attorney General Op. 90-138, 1990 Kan. AG LEXIS 39 (1990). See also the definitions of residence and domicile in K.S.A. 77-201 and K.A.R. 92-12-4. 98. Congress intended that aliens who seek to establish domicile without an adjustment of status, while in an immigration classification which prohibits permanent residence, are to be deported. Elkins v. Moreno, 435 U.S. 647, at 664-65 (1978). Illegal aliens are detainable and deportable, and are automatically barred from reapplying for legal admission to the United States for up to ten years. 8 U.S.C. 1182(a)(9)(B), INA §212(a)(9)(B).
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99. In the case of non-citizens, the existence of a legal disability to the establishment of domicile is exclusively a matter of federal law. Martinez v. Bynum, 461 U.S. 321 (1983), citing Nyquist v. Mauclet, 432 U.S. 1 (1977); Carlson v. Reed, 249 F.3d 876 (9th Cir. 2001) [in-state resident tuition denied]; Hein v. Arkansas State Univ., 972 F. Supp 1175 (E.D. AR 1997) [in-state resident tuition denied]. In Elkins v. Moreno, supra, the U.S. Supreme Court remanded the question of whether an alien without lawful immigration status could possess the required intent to establish domicile to the Maryland Court of Appeals. The Maryland Court of Appeals clearly articulated the principle of law at issue, and its application to illegal aliens in the context of eligibility for resident tuition. Toll v. Moreno, 284 Md. 425, at 442-43 (1979):
“If under federal law a particular individual must leave this country at a certain date, or cannot remain here indefinitely, then he could not become domiciled in Maryland. Any purported intent to live here indefinitely would be inconsistent with law. It would at most be an unrealistic subjective intent, which is insufficient under Maryland law.” 100. None of members of the class of alien beneficiaries of HB 2145 who are illegal aliens possesses federal authorization to remain in the United States for even the shortest period of time, and therefore cannot, as a matter of law acquire or possess the requisite intent to be a legal resident or domiciliary of Kansas. Kansas may not deem such noncitizens to possess such intent, nor alternatively waive such intent by exercise of its legislative powers. 101. By arbitrarily deeming certain illegal aliens to be legal residents of Kansas by operation of state law HB 2145, where no provision for such classification exists in federal law or regulation, Defendants violate the comprehensive federal regulatory scheme for aliens contained in Chapter 12 (Immigration and Nationality), Chapter 13 (Immigration and Naturalization Service), and Chapter 14 (Restricting Welfare and Public Benefits For Aliens, and Chapter 15 (Enhanced Border Security and Visa Entry
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Reform) of Title 8 of the United States Code, popularly known as federal immigration law.
SIXTH CLAIM FOR RELIEF INFRINGEMENT UPON EXCLUSIVE FEDERAL POWERS 102. Plaintiffs incorporate by reference ¶¶ 1 through 101 above. 103. Regulation by state statute of the terms and conditions under which illegal aliens may enter the State of Kansas in violation of federal law and obtain state postsecondary education benefits, which the State denies to U.S. citizen and alien legal residents of other states, impermissibly infringes on Constitutional powers reserved to the federal government. 104. By implementation of HB 2145, Defendant state executive officers violate multiple clauses of the United States Constitution that vest the conduct of foreign affairs in the federal government, almost to the exclusion of individual states and local governments. U.S. Constitution, Article I Section 8, Clause 1 (General police power to provide for common defense and general welfare), Clause 3 (Interstate Commerce), Clause 4 (Naturalization), Clause 10 (Offenses against Law of Nations) and Clause 11 (War and Capture Powers), and Section 10, Clause 1 (Powers denied to States), Clause 2 (Imposts and Duties) and Clause 3 (State compacts); Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000). Implementation of HB 2145 by defendants will impermissibly encourage, induce and abet the travel and transport of aliens into and across the United States from abroad in violation of federal immigration law and foreign policy, in order that such aliens may engage in the federally prohibited action of enrollment and study without federal authorization at a Kansas public postsecondary educational institution, for the purpose of remaining indefinitely in the United States. 105. By implementation of HB 2145, Defendants violate, under color of state law,
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the exclusive Congressional plenary power over interstate commerce. Such federal power applies to the regulation of immigration. Hoke v. U.S. 227 U.S. 308, at 320 (1913); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Compagnie Francaise De Navigation A Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380 (1900). 106. Congress has enacted a comprehensive federal scheme (labor certification) for the regulation of interstate and international commerce in immigrant and nonimmigrant alien labor, whose purpose is the protection of wages and working conditions of United States workers. 8 U.S.C. 1153(b)(3)(C), 8 U.S.C. 1154(b), and 8 U.S.C. 1182(a)(5)[employment-based immigrants; 8 U.S.C. 1101(a)(15)(E), (H) and (L); 8 U.S.C. 1184, and North American Free Trade Act Annex 1603.D.1. [temporary nonimmigrant workers]. Implementation of HB 2145 by Defendants violates this comprehensive protective scheme by unlawfully providing state-funded financial incentives for illegal aliens to obtain skills with which such aliens may and will unlawfully compete with Plaintiffs for employment opportunities. The classification of illegal aliens as residents of Kansas for purposes of eligibility for postsecondary education benefits has a regulatory effect on commerce both in Kansas, the receiving state, and the foreign states from which the illegal alien applicants have been unlawfully transported. 107. For so long as illegal aliens are permitted, encouraged, and induced by the Defendants to enter Kansas and apply for and receive such benefits, without regard for the federal statutory standards protecting U.S. worker wages and working conditions, the implementation of HB 2145 will constitute an impermissible regulation of interstate commerce. Heart of Atlanta Motel, Inc. v. U. S., 379 U.S. 241, at 254 (1964).
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SEVENTH CLAIM FOR RELIEF VIOLATION OF EQUAL PROTECTION CLAUSE OF U.S. CONSTITUTION 108. Plaintiffs incorporate by reference ¶¶ 1 through 107 above. 109. Defendants, by acting under color of state law to implement HB 2145, will extend postsecondary education benefits to a particular class of persons in the United States. Specifically, Defendants will extend such benefits to nonimmigrant aliens known to be unlawfully present in the United States for at least three years, whom the State of Kansas has impermissibly determined to be members of one of five arbitrary state immigration classifications, and deemed therefore to be legal residents of the State of Kansas. 110. Illegal aliens have been deemed by Defendants to be Kansas residents for the express purpose of affording such aliens state postsecondary education benefits to which they are not entitled under federal law. Defendants have further denied nonresident U.S. citizen Plaintiffs the identical postsecondary education benefits to which they are expressly entitled by federal law. 111. State laws that draw distinctions on the basis of alienage must meet the requirements of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Graham v. Richardson, 403 U.S. 365, 367 (1971). State laws that discriminate between U.S. citizens and illegal aliens in the extension of educational benefits are evaluated under “heightened” review, rather than mere rational basis review. Plyer v. Doe, 457 U.S. 202, 238 (1982)(Powell, J., concurring)(citing Craig v. Boren, 429 U.S. 190 (1976)). Accordingly, the State’s discriminatory treatment of Defendants can only withstand constitutional challenge if it serves important governmental objectives and is substantially related to those objectives. Craig v. Boren, 492 U.S. 190, 197 (1976).
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112. Discriminating against U.S. citizens in favor of illegal aliens in the provision of postsecondary education benefits does not serve any important government objective. Awarding valuable benefits to individuals whose presence in the United States constitutes an ongoing violation of federal law plainly undermines the general governmental objective of promoting the rule of law. Moreover, any purported government interest in encouraging higher education in the State’s workforce is unpersuasive, because the illegal alien recipients of such postsecondary education benefits are not legally eligible to remain in the State of Kansas after completing their courses of study. 113. Defendants, by acting under color of state law to implement HB 2145, will also discriminate in the extension of postsecondary education benefits between illegal aliens and aliens who are lawfully present in the United States and in possession of “a valid student visa.” Lawfully present aliens are expressly denied such benefits in HB 2145, Section 1(c)(1). This distinction expressly rewards those aliens who have violated federal law with a benefit that is denied to those aliens who have complied with federal law. Such a distinction constitutes an incentive to violate federal law and cannot even survive rational basis review. 114. Implementation of HB 2145 by Defendants will violate the constitutional rights of Plaintiff U.S. citizens to equal protection of the law under the Fourteenth Amendment, by denying Plaintiffs eligibility to apply for and receive similar postsecondary education benefits on an equal basis. This Court may grant Plaintiffs declaratory and injunctive relief pursuant to 42 U.S.C. 1983.
PRAYER FOR DECLARATORY RELIEF 115. Plaintiffs incorporate by reference ¶¶ 1 through 114 above.
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116. An actual controversy exists between Plaintiffs and Defendants regarding the legality, constitutionality, and enforceability by the Defendants of HB 2145. 117. Plaintiffs are entitled to a declaration on the constitutionality and legality of the challenged state statute.
PRAYER FOR INJUNCTIVE RELIEF 118. Plaintiffs incorporate by reference ¶¶ 1 through 117 above. 119. Plaintiff’s claims meet the standard for injunctive relief because (1) they have no adequate remedy at law; (2) they will suffer immediate and continuing harm if required to pay significantly greater tuition and expenses associated with nonresident status; (3) Plaintiffs are likely to succeed on the merits of their claims; and (4) Defendants will suffer no harm in being denied the opportunity to implement HB 2145 in the circumstances alleged in this case pending resolution of the merits of the case. Issuance of the injunction will retain the status quo.
~ * * * ~ WHEREAS, because of the actions alleged above, Plaintiffs respectfully ask this Court to grant the following relief:
A. That a preliminary and a permanent injunction be issued enjoining the Defendants in perpetuity from enforcing HB 2145 with respect to the provision of postsecondary education benefits to aliens who are unlawfully present in the United States.
B. That HB 2145 be declared to be in violation of federal law and unconstitutional as applied to the provision of postsecondary education benefits to aliens who are unlawfully present in the United States; and
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Case 5:04-cv-04085-RDR-JPO Document 38-1 Filed 12/08/2004 Page 29 of 30 C. That the Defendant’s be further enjoined from discriminating between
Plaintiffs and students who have been classified as legal residents of Kansas, as regards admission and enrollment practices, charges for tuition and fees, and any other services or facilities provided by Kansas postsecondary educational institutions, until such time as this Court is informed that the illegal and unconstitutional practices embodied in HB 2145 are no longer in effect; and
D. That Plaintiffs recover from Defendants all of Plaintiff’s reasonable attorney’s fees, expenses, and costs under 42 U.S.C. 1988, as this Court deems just and proper; and
E. That Plaintiffs be granted any further relief as the Court deems just and proper.
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Dated: December 8, 2004

s/ Kris W. Kobach Kris W. Kobach, Esq. Attorney at Law Kansas Bar No. 17280 9159 Kessler Overland Park, KS 66212 Telephone: 913-638-5567 Facsimile: 816-235-5276 E-mail: kobachk@umkc.edu s/ Michael M. Hethmon Michael M. Hethmon, Esq. Federation for American Immigration Reform 1666 Connecticut Ave. N.W. Washington DC 20009 Telephone: 202-328-7004 Facsimile: 202-387-3447 E-mail: attorney@fairus.org
Attorneys for Plaintiffs

DESIGNATION OF PLACE OF TRIAL Plaintiffs hereby designate Topeka, Kansas, as the place of trial.

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 Case 5:04-cv-04085-RDR-JPO Document 48 Filed 02/21/2005 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

KRISTEN DAY, et al., Plaintiffs,
vs. KATHLEEN SEBELIUS, et al.,
Defendants.

CIVIL ACTION
CASE NO. 5:04-4085-RDR MOTION FOR PRELIMINARY INJUNCTION

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
Plaintiffs respectfully submit this memorandum of points and authorities in support of their motion for a preliminary injunction.
The Nature of the Case 1. Kansas House Bill 2145 (“H.B. 2145”) was enacted by the Kansas Legislature and became effective on July 1, 2004. Amended Complaint, at ¶¶ 31-33. 2. Plaintiffs, who are United States citizen students at Kansas public universities who have been classified as non-residents for purposes of payment of tuition and fees and their parents
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filed suit on July 19, 2004 against Defendant state officials, seeking prospective declaratory and injunctive relief under 28 U.S.C. §§ 1331, 1343, and 2201. Plaintiffs seek preliminary protection against irreparable financial harm and impairment of their constitutional rights and federal statutory rights. This harm is ongoing, and is a direct and foreseeable consequence of the implementation by Defendants of H.B. 2145. 3. Plaintiffs now seek a preliminary injunction that will return the situation at Kansas postsecondary educational institutions to the status quo ante, existing as of the end of the 2003-2004 academic year, prior to July 1, 2004. 4. Under the status quo ante, existing prior to July 1, 2004, illegal aliens could not be deemed to be residents of Kansas for purposes of eligibility for post-secondary educational benefits, in particular in-state tuition. Amended Complaint, at ¶ 82. 5. At all times since July 1, 1998, Congress has, “notwithstanding any other provision of law,” prohibited the state of Kansas and all political subdivisions therein from offering any postsecondary educational benefit to an illegal alien unless all United States citizens are also eligible for the same benefit in no less an amount, duration, and scope, without regard to whether the citizen is a resident of Kansas. 8 U.S.C. 1623(a); Amended Complaint, at ¶ 51. 6. There is no dispute that the Defendants are now offering certain illegal aliens postsecondary education benefits, for which illegal aliens would have been ineligible prior to July 1, 2004, the effective date of H.B. 2145. There is also no dispute that, but for the claim by Defendants that H.B. 2145 utilizes a purported semantic loophole in federal law to circumvent the mandate of 8 U.S.C. 1623, Plaintiffs would be entitled to treatment as residents of Kansas for purposes of eligibility for postsecondary educational benefits, including payment of tuition and fees at state resident rates, pursuant to that federal law.
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Argument 6. The injuries claimed by Plaintiffs in this case arise from a fact pattern that is straightforward, although somewhat novel to this Court, in the sense that Defendants’ actions constitute an impermissible attempt to grant privileges to a class of illegal aliens while denying them to U.S. citizen Plaintiffs. The Plaintiffs’ legal and factual claims clearly meet the wellestablished standard for issuance of a preliminary injunction in this Judicial District. 7. A central question in this litigation is the legal domicile of the illegal alien beneficiaries of H.B. 2145. It is important to point out that, regardless of the position taken on this point by Defendants, Plaintiffs can show prima facie constitutional injuries arising from implementation of H.B. 2145 that justify the granting of preliminary injunctive relief. Only the granting of a preliminary injunction will maintain the status quo ante, existing prior to enactment of H.B. 2145.
Standard of Review 8. A plaintiff seeking a preliminary injunction in this Court bears the burden of showing: (1) irreparable harm unless the injunction is issued; (2) that the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; (3) that the injunction, if issued, will not adversely affect the public interest; and (4) a substantial likelihood of prevailing on the merits. Fed. Lands Legal Consortium ex rel. Robart Estate v. United States, 195 F.3d 1190, at 1194 (10th Cir. 1999); Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163, at 1171 (10th Cir. 1998). If the plaintiff can establish that the first three requirements tip strongly in his favor, the test is modified, and the plaintiff may meet the requirement for showing success on the
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merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation. 9. When a constitutional question is raised for preliminary injunction, the Tenth Circuit applies a decreased burden within the four factors. If a plaintiff can meet the first three factors, then the fourth factor is met if the plaintiff raises "questions so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry." Neal v. Lewis, 259 F. Supp. 2d 1178 (D.C. KS 2003), citing Longstreth v. Maynard, 961 F.2d 895, at 903 (10th Cir. 1992) and Lundgrin v. Claytor, 619 F.2d 61, at 63 (10th Cir. 1980); see also Davis v. Mineta, 302 F.3d 1104, at 1111 (10th Cir. 2002).
Factor 1: Irreparable Injury Unless the Injunction Is Issued. 10. A plaintiff suffers irreparable injury when the Court would be unable to grant an effective monetary remedy after a full trial because damages would be inadequate or difficult to ascertain. Tri-State Generation & Transmission Ass'n, Inc., v. Shoshone River Power, Inc., 874 F.2d 1346, 1354 (10th Cir. 1989). Plaintiffs may meet their burden under this factor by showing a strong threat of irreparable injury before trial, and need not establish an actual injury or the certainty of an injury occurring. Hill's Pet Nutrition, Inc. v. Nutro Prods., 258 F. Supp. 2d 1197, 1206 (D. Kan., 2003). The Tenth Circuit has stated that where constitutional rights are implicated, irreparable injury is shown because a monetary award after a trial would not adequately compensate for the denial of a constitutional right. Neal v. Lewis, supra, at 1181 (D. Kan., 2003), citing 11A Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 2948.1 (2d ed. 1995), and Kikumura v. Hurley, 242 F.3d 950, at 963 (10th Cir. 2001). See also Haynes v. Office of the AG, 298 F. Supp. 2d 1154, at 1159 (D. Kan., 2003) (Plaintiff's harm from denial of
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preliminary injunction is irreparable if it is not fully compensable by monetary damages. Irreparable harm is established when plaintiff's claim is based upon violation of plaintiff's constitutional rights.). 11. Defendants have violated and will continue to violate Plaintiffs’ rights to equal protection of the laws under Section I of the Fourteenth Amendment to the U.S. Constitution. Implementation of a system of classification for eligibility for postsecondary educational benefits under color of state law that is conditioned on a durational residency requirement of attendance for three years at a Kansas high school and acceptance of a lifetime contractual agreement to retroactively seek lawful status. The provisions of H.B. 2145 are intended to and in fact do discriminate against U.S. citizens in favor of certain illegal aliens in the provision of postsecondary educational benefits. See Amended Complaint, at ¶ 58. 12. These injuries occur regardless of whether Defendants argue before this Court that the illegal alien beneficiaries of H.B. 2145 are—or are not—lawfully domiciled in Kansas. If the illegal alien beneficiaries are deemed residents of the state for benefits eligibility purposes, Kansas has violated 8 U.S.C. 1623 and treated Plaintiffs in an impermissibly discriminatory fashion by refusing to deem them residents of Kansas for such purposes as well, as required by 8 U.S.C. 1623. If, on the other hand, Defendants theorize that H.B. 2145 permits them to deem illegal aliens as eligible for postsecondary educational benefits despite their nonresident status, Kansas will have extended certain privileges of residents of Kansas to nonresident illegal aliens, but denied them to equally- or better-qualified nonresident U.S. citizens from other states on the
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impermissible basis of a durational residence requirement during the Plaintiff’s secondary education career.1 13. Discrimination against U.S. citizens in favor of illegal aliens in the provision of postsecondary education benefits—regardless of the period of time during which the aliens have been present in Kansas in violation of federal law of—does not serve any important government objective and therefore fails the heightened review of state law based on immigration classifications required by the Equal Protection Clause of the Fourteenth Amendment. See Amended Complaint at ¶¶ 99-100. 14. Plaintiffs further seek the protection of a preliminary injunction based on the duty of the federal courts to protect and defend Plaintiffs against failure by agencies of the state of Kansas to recognize and comply with federal immigration law. The obligations of the state of Kansas to defer to the plenary power of the federal government over immigration arise under multiple provisions of the federal Constitution: Article VI, Clause 2 (Supremacy Clause); Article I, Section 8, Clause 1 (general police power to provide for common defense and general welfare), Clause 3 (Interstate Commerce Clause), Clause 4 (naturalization), and Clause 10 (offenses against law of nations); and Section 10, Clause 1 (powers denied to States), Clause 2 (Imposts and Duties Clause), and Clause 3 (State compacts). 15. By implementing H.B. 2145, Defendants’ actions have contravened the comprehensive federal regulatory scheme in the area of immigration of foreign students, an area where federal power is plenary and preemptive, and where Congress has determined that there is a compelling
1 In this circumstance, Defendants may not argue both that the illegal alien beneficiaries of H.B. 2145 are not residents of Kansas, and that granting the illegal aliens in-state tuition constitutes a legitimate and permissible state interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis, as noted in Vlandis v. Kline, 412 U.S. 441, at 453 (1973).
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national interest in removing benefits that constitute incentives for illegal immigration. These federal laws include: 8 U.S.C. 1601, 8 U.S.C. 1611, 8 U.S.C. 1621, and 8 U.S.C. 1623 (prohibiting the provision of postsecondary educational benefits to the illegal alien beneficiaries of H.B. 2145); 8 U.S.C. 1101(a)(15), P/L. 104-208 §641, 8 U.S.C. 1182(a)(6)(A), 8 U.S.C. 1182(a)(9)(B), 8 U.S.C. 1202(g), 8 U.S.C. 1227(a)(1)(C)(i) (regulating the lawful entry and presence of aliens for purposes of study at postsecondary educational institutions); 8 U.S.C. 1153(b)(3), 8 U.S.C. 1154(b), 8 U.S.C. 1182(a)(5), and 8 U.S.C. 1324a (protecting United States workers against employment of unauthorized aliens). In addition to violating federal law directly, H.B. 2145 expressly creates disparate state classifications based on immigration status and alienage that do not exist in federal immigration law. See Amended Complaint, at ¶¶ 68-73. These state classifications conflict with federal immigration law and cannot be reconciled with federal immigration classifications. Such state defiance of federal law contravenes the Supremacy Clause of the U.S. Constitution. U.S. Constitution, Art. VI, Cl.2. 16. Defendant Sebelius and her legal counsel have stated that the intent of H.B. 2145 is to improve the educational preparation of the Kansas workforce.2 To assert that the illegal alien beneficiaries of H.B. 2145 are an important and legitimate component of that workforce is to suggest that the State of Kansas intends to train illegal aliens for future employment in Kansas, disregarding federal laws that prohibit such aliens from working or remaining in the United
2 “‘I just think we need all the talent that we should get from this growing part of our economy,’ Sebelius said of the state's large immigrant Hispanic population.” Chris Moon, “Governor Speaks to Hispanics: Sebelius Favors Immigrant Tuition Bill,” TOPEKA CAPITAL-JOURNAL, March 19, 2003. “And it doesn't make a whole lot of sense when you have that young person who has worked hard to graduate from high school, who wants to contribute more to the economy, to say, ‘No, you can't afford that.’ We want to help them afford it, we want them to contribute more to our economy, and we think this law helps do that.” Statement of Matt All, Counsel to Governor Kathleen Sebelius, “Immigration Watchdog Group Files Lawsuit Challenging Kansas College Tuition Provision Benefiting Illegal Immigrants,” All Things Considered, NATIONAL PUBLIC RADIO, July 19, 2004.
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States. These federal laws protect U.S. citizen workers and lawfully-admitted alien workers alike, from the adverse effect on wages and working conditions caused by employment of inadmissible aliens. Congress retains plenary power over immigration, with exclusive authority to set the standards by which aliens may enter or remain in the United States. Congress has prohibited and preempted state action in this area. See, supra, at ¶ 15. In this respect as well, Defendants’ defiance of federal law contravenes the Supremacy Clause of the U.S. Constitution. U.S. Constitution, Art. VI, Cl.2. 17. Although the plaintiff bears the burden of persuasion, it is up to Defendants in this case, as the parties upholding the statute, to establish a strong basis in evidence showing that the statute meets the appropriate constitutional standard. Concrete Works of Colorado v. City and County of Denver, 36 F.3d 1513, at 1521-22 (10th Cir. 1994), cert. denied, 115 S. Ct. 1315 (1995). 18. The injuries to Plaintiffs by state resistance to federal immigration law are irreparable. Plaintiffs have no recourse other than injunctive relief to remedy these current and prospective constitutional injuries. 19. The foreseeable harm to Plaintiffs is not fully compensable by monetary damages. The deprivation of a financial public benefit that represents a significant portion of a plaintiff’s income also constitutes irreparable harm, where Plaintiffs have limited incomes or are otherwise impecunious. It is well established that the ongoing denial of benefits constitutes a judiciallycognizable injury. For example, numerous cases have held that reductions in AFDC benefits,
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even relatively small reductions, impose irreparable harm on eligible beneficiaries. Beno v. Shalala, 30 F.3d 1057, at 1064 (9th Cir.1994).3
20. In this case, affidavits submitted by student Plaintiffs indicate that nearly all are young
persons of limited means who are unable to finance the costs of a college education from their
personal resources without reducing their current incomes below the poverty level. The
difference between the expense of nonresident tuition demanded by Defendants of each student
plaintiff and the amount they are lawfully entitled to pay pursuant to 8 U.S.C. 1623 is huge,
ranging between 280 percent and 320 percent of the in-state rates in effect at the Kansas
universities under the authority of Defendants. Amended Complaint, at ¶ 35. In both absolute
and relative terms, the denial of eligibility for payment of tuition on the same basis as U.S.
citizens who are legal domiciliaries of Kansas constitutes a financial injury. This financial injury
has an immediate, significant, and harmful effect on Plaintiffs’ lives.
21. Plaintiffs anticipate that final injunctive relief awarded at the conclusion of this litigation
will enable them to seek reimbursement of excess tuition and fees paid during the course of the
litigation. However, preliminary injunctive relief is especially appropriate in this case because it
3 See, e.g., Chu Drua Cha v. Noot, 696 F.2d 594, 599 (8th Cir. 1982) ("We have no doubt that irreparable harm is occurring to the plaintiff class as each month passes . . . [even if the 11th amendment would permit a court order requiring retroactive benefits payments, because] for people at the economic margin of existence, the loss of $ 172 a month and perhaps some medical care cannot be made up by the later entry of a money judgment."), mod. on other grounds, 701 F.2d 750 (8th Cir. 1982); Banks v. Trainor, 525 F.2d 837, 842 (7th Cir. 1975), cert. denied, 424 U.S. 978, 47 L. Ed. 2d 748, 96 S. Ct. 1484 (1976); Smith v. Babcock, 748 F. Supp. 501, 508-09 (E.D. Mich. 1990), rev'd on other grounds, 19 F.3d 257 (6th Cir. 1994); Gorrie v. Heckler, 606 F. Supp. 368, 374 (D. Minn. 1985); Moore v. Miller, 579 F. Supp. 1188, 1191-92 (D. Ill. 1983) ("For those in the grip of poverty, living on the financial edge, even a small decrease in payments can cause irreparable harm."); Williamson v. Gibbs, 562 F. Supp. 687, 688 (D. Wash. 1983); RAM v. Blum, 533 F. Supp. 933, 940 (D.N.Y. 1982); Crane v. Mathews, 417 F. Supp. 532, 539-40 (N.D. Ga. 1976) (imposition of $ 2 co-payment for medical treatment is irreparable injury to welfare recipients living at subsistence level); Nelson v. Likins, 389 F. Supp. 1234, 1237, 1242 (D. Minn. 1974) (loss of $80 to $100 a month in AFDC benefits is sufficient irreparable injury to justify a preliminary injunction and a denial of a stay of preliminary injunction pending appeal because "while the
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is the only means of protection available to Plaintiffs against ongoing financial losses, including interest, opportunity costs, and compensatory damages that cannot be fully recovered from Defendants due to Eleventh Amendment limitations.
Factor 2: Harm to Movant Outweighs Any Harm to Opposing Party 22. The second factor requires this Court to weigh the harm to Plaintiffs (students and parents) against any harm to the Defendants (the Governor, the Members of the Board of Regents, and the Registrars of the three named Kansas public universities) that is reasonably foreseeable should the motion for a preliminary injunction be granted by this Court. 23. The harm claimed by Plaintiffs is (1) the infringement of Plaintiff’s constitutional rights and protections, (2) the immediate and irreparable harm to parent and student Plaintiffs of payment of tuition and other fees at nonresident rates, (3) the future injuries to student Plaintiffs who must endure the financial hardship of repaying burdensome student loans, and (4) the prospective injuries to the student Plaintiff’s future economic earning power caused by state subsidy of post-secondary education and training for illegal aliens. 24. Plaintiff’s economic injuries during the litigation of this issue are substantial. Plaintiffs have detailed in their affidavits the activities or opportunities that they have foregone, and the debt they have incurred, in order to pay the non-resident tuition and fees unlawfully demanded by Defendants. See Affidavits of student and parent Plaintiffs Kristen M. Day, Cody R. Echols, David C. Eichman, Brandi P. Gillette, Christopher J. Heath, Amy E. Hughes, Heidi L. Landherr, Karla A. Manzel and Robert R. Manzel, Kayla L. Manzel, Jonathan D. Miller, Michelle K. Prahl,
loss of money is normally not considered irreparable, . . . in this case those affected are not the average citizens but those in the grip of poverty."), aff'd per curiam, 510 F.2d 414 (8th Cir. 1975).
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Kyle M. Rohde, Jamie L. Whittenburg, Lindsey D. Whittington, attached to this memorandum as Exhibit A. 25. Both the Defendants and the illegal alien beneficiaries of H.B. 2145 intend that the illegal aliens will use their postsecondary education benefits to compete for employment and work in Kansas without federal employment work authorization. See supra, at ¶ 16. Every week and month that illegal aliens continue to receive these unlawful benefits improves their ability to compete for employment that by law is reserved for United States workers and lawfully present alien workers with employment authorization. 26. Plaintiffs’ constitutional injuries are twofold. First, H.B. 2145 infringes upon Plaintiffs’ right to equal protection of the laws as a consequence of the discriminatory and unlawful classification scheme enacted by the states of Kansas, which grants publicly-funded postsecondary education benefits to certain illegal aliens, based on an arbitrary state immigration classification, while at the same time denying U.S. citizen Plaintiffs the same benefits. H.B. 2145, by its definitions and terms, does not make such benefits available to U.S. citizens. However, even if one were to suppose that H.B. 2145 could somehow be applied to U.S. citizens, the statutory exclusions of H.B. 2145 operate to exclude virtually every U.S. citizen who might seek its benefits. In one of the most common circumstances, a U.S. citizen who graduates from a Kansas high school and then resides in another state for several years loses his eligibility for instate tuition at a Kansas university under H.B. 2145, Section 1(c)(2) because he has established residency qualifying him for in-state tuition in another state. In contrast, an illegal alien may graduate from a Kansas high school and then move to the same state. But the illegal alien will still qualify for in-state tuition at a Kansas University, because the second state does not attempt to unlawfully make the illegal alien eligible for in-state tuition.
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27. Second, H.B. 2145 violates the Supremacy Clause of the U.S. Constitution in numerous ways. See supra, at ¶¶ 14-16. In this case, the Supremacy Clause serves as a constitutional protection of the Plaintiffs’ rights that are defined by federal statute. Most importantly, Plaintiffs enjoy the federal statutory right to the same postsecondary education benefits provided to any illegal alien by a State, “in no less an amount, duration, and scope.” 8 U.S.C. 1623(a). The defiance of federal law by Defendants results in a constitutional violation with direct and injurious consequences for Plaintiffs. 28. In contrast, it is difficult to identify any measurable harm to any of the Defendants should the status quo ante be retained until this litigation runs its course.
Factor 3: Injunction Will Not Adversely Affect the Public Interest 29. The “public interest” has been defined as meaning the consequences to non-parties of granting or denying the injunction. Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, at 12 (7th Cir. 1992). In this case, the interests of the Plaintiffs and those members of the public who are not parties to this lawsuit, in Kansas as well as in other States whose citizens attend Kansas postsecondary educational institutions in significant numbers, are closely aligned. 30. At the broadest level, the public as a whole has an interest in protecting constitutional rights. Adams v. Baker, 919 F. Supp. 1496, 1505 (D. Kan. 1996). 31. Congress has specifically defined the public interest this area by statute. It is the national policy of the United States that aliens within the United States shall not depend on public resources to meet their needs, and “[i]t is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits.” 8 U.S.C. 1601(6). See Amended Complaint, at ¶¶ 37-38. Congress has firmly established that there is a
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substantial public interest in the effective enforcement of immigration law. U.S. v. BrignoniPonce, 422 U.S. 873, at 878 (1975); INS v. Miranda, 459 U.S. 14, at 19 (1982). Accordingly, a wealth of federal case law recognizes the substantial public interest in the enforcement of immigration laws and the effective removal of illegal aliens. See Lucacela v. Reno, 161 F. 3d 1055, 1059 (7th Cir. 1998) (recognizing “the clear public interest (as expressed by Congress) in deporting illegal aliens without delay”); Odon Pereira do Vale v. INS, 2002 U.S. Dist. LEXIS 12595, 27 (D. R.I. 2002) (“[T]here is a strong public interest in removing illegal aliens from the country, particularly those who have been deemed removable.”); Blackie’s House of Beef v. Castillo, 659 F.2d 1211, 1220-21 (D.C. Cir. 1981) (congressional deliberation “attests to the seriousness of the public interest in enforcement of the immigration laws”). Although immigration is a federal matter, local and state government agencies may not turn a blind eye to any illegal activity – including violations of immigration law. U.S. v. Ontoniel Vasquez-Alvarez, 176 F.3d 1294 (10th Cir.1999).4 32. Although Defendants may assert a policy interest in subsidizing the higher education of illegal aliens pursuant to H.B. 2145, the express statement of public policy and national interest by Congress which has been affirmed by numerous federal courts renders Defendants’ asserted policy interest irrelevant for the purposes of this Court’s inquiry.
33. The California Court of Appeals has described a state’s public interest in denying in-state tuition to undocumented aliens as “manifest and important.” Regents of the University of California v. Superior Ct. of Los Angeles County, 225 Cal. App. 3d 972, at 982 (1990). That Court articulated nine important public interests at stake that are also implicated by this complaint:
4 Cert. denied, SC 99-5643, WL 624389 (Oct. 4, 1999).
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1. Interest in not subsidizing violations of law. 2. Interest in preferring to educate the states’ own lawful residents. 3. Interest in avoiding enhancement of the employment prospects of those to whom
employment is forbidden by law. 4. Interest in conserving state fiscal resources for the benefit of its lawful residents. 5. Interest in avoiding accusations that it unlawfully harbors illegal aliens in its classrooms
and dormitories. 6. Interest in not subsidizing the university education of those who may be deported. 7. Interest in avoiding discrimination against citizens of sister states and aliens lawfully
present. 8. Interest in maintaining respect for government by not subsidizing those who break the
law. 9. Interest in not subsidizing the university education of students whose parents, because of
the risk of deportation if detected, are less likely to pay taxes.5 34. Congress has prohibited States from providing any federal post-secondary educational
benefit to an illegal alien. 8 U.S.C. 1611; 8 U.S.C. 1641. See Amended Complaint, at ¶¶ 39-41.
35. Although this suit is not filed as a class action, the consequences of preliminary and
permanent injunctive relief will only be beneficial for both United States citizens and lawfully
admitted alien students seeking to attend Kansas institutions of higher education. Whether or not
they are domiciled in Kansas, U.S. citizens, legal permanent resident aliens, and nonresident
aliens admitted to the United States in an appropriate visa status for university study will benefit
by not being obliged to compete for limited state postsecondary educational resources with
persons who are not authorized or entitled to consume such public resources. The scarcity of
postsecondary education resources in Kansas is pervasive and significant. It is manifest in the dramatic increases in tuition rates at Kansas postsecondary institutions in recent years.6 U.S.
citizens will benefit by reduced competition for employment from illegal aliens, who are more
likely to accept inferior wages and working conditions.
5 Id., also cited in Virginia Office of the Attorney General, Immigration Law Compliance Update, Sept. 5, 2002. 6 In 2004, the Kansas Board of Regents voted to raise tuition rates 18 percent at Kansas University and 17 percent at Kansas State University; university officials complained of inadequate financial support from the state legislature. Chris Moon, “Regents Raise Cost of College,” TOPEKA CAPITAL-JOURNAL, June 25, 2004.
14

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36. In contrast, the language of H.B. 2145 contains no express statement of any public interest to be protected by enactment of this measure, and fails to identify non-party beneficiaries of the legislation other than certain illegal aliens who have been unlawfully present in Kansas for extended periods of time. 37. The public policy rationales articulated by sponsoring legislator Representative Sue Storm in testimony before the Kansas Senate Education Committee fail to demonstrate that preferences to the illegal alien beneficiaries of H.B. 2145 will serve the public interest as a whole. Rep. Storm testified:
“These students, most of them Hispanic, aren’t going anywhere…. They are going to remain in Kansas. They will work in Kansas…. This is a workplace development issue. Regardless of what we might believe about their parent’s reasons or methods of coming to the United States, the real question is: ‘Will they be educated workers or uneducated ones?’”7 President of the Kansas Board of Regents Reginald L. Robinson offered essentially the same policy rationale in his testimony: “The Board supports the concept of expanded educational opportunity that Sub. H.B. 2145 represents…. Given the increasingly global and increasingly competitive economic environment that confronts us, the state truly needs a highly educated workforce if it is to remain competitive and reach its full potential. Measures such as this one, which remove barriers to access, are helpful and important in that regard.”8 38. In summary, the public interests served by granting the preliminary injunction—(1) the protection of Plaintiffs’ constitutional and statutory rights, (2) the congressionally- and judicially-recognized compelling interest in promoting the enforcement of immigration laws, and (3) the preservation of the state’s limited educational, employment, and fiscal resources for the benefit of citizens and other lawful residents—far outweigh the single interest served by the denial of the requested injunction, as stated by Representative Storm: a better-trained state
7 Written Testimony on House Bill 2145, Senate Education Committee, March 11, 2003. 8 Testimony Regarding Substitute for House Bill 2145, Senate Education Committee, Feb. 11, 2004.
15

Case 5:04-cv-04085-RDR-JPO Document 48 Filed 02/21/2005 Page 16 of 18
workforce of unauthorized alien workers. This workforce would be of little value to the state of Kansas, due to its illegal and evanescing nature. It would be composed of aliens who are subject to removal by federal immigration authorities at any time; and such aliens may become fugitive in order to evade enforcement of the law.
Factor 4: Substantial Likelihood of Success on The Merits. 39. Plaintiffs in this case have established the first three requirements for issuance of a preliminary injunction and have further established that multiple constitutional questions are raised by this case. Thus, Plaintiffs need only show that the issues presented are so serious, substantial, difficult, and doubtful as to make them fair ground for litigation. Zsamba ex rel. Zsamba v. Community Bank, 56 F. Supp. 2d 1207, at 1210 (D. Kan. 1999) (quoting Resolution Trust Corp. v. Cruce, 972 F.2d 1195, at 1199 (10th Cir. 1992)). 40. Plaintiffs in their Amended Complaint seek declaratory and injunctive relief to restore the constitutional, statutory, and financial status quo ante that existed in Kansas prior to July 1, 2004, the effective date of H.B. 2145. Plaintiffs also seek injunctive relief compelling reimbursement of the excess tuition and fees charged to Plaintiffs since July 1, 2004, in violation of 8 U.S.C. 1623. 41. In this case of apparent first impression, the preliminary injunctive relief and permanent injunctive relief sought are substantially similar. The only reason to disfavor a preliminary injunction that grants substantially all the relief sought is if it would render a trial on the merits largely or completely meaningless. Aid for Women v. Foulston, 2004 U.S. Dist. LEXIS 14238 (D.Kan., July 26, 2004) quoting Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, at 1247 (10th Cir. 2001). In this case, the questions raised by this litigation are clearly so serious, substantial, difficult, and doubtful that the creation of a full documentary record and a trial on the
16

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merits are not only meaningful, but also imperative. Plaintiffs raise important questions about federalism and the respective authorities of the state and federal governments. The declaratory relief sought will have wide-ranging legal and practical consequences for similarly-situated United States citizens throughout the United States, including the States in which Plaintiffs in this matter who are non-residents of Kansas for purposes of post-secondary education benefits reside, and for agencies of the state and federal governments that encounter large numbers of illegal aliens within their jurisdictions.
Conclusion. 42. Plaintiffs have met their burden of demonstrating that irreparable harm will occur unless the injunction is granted, that the injury to Plaintiffs outweighs any harm the proposed preliminary injunction may impose on Defendants, and that preliminary relief for the Plaintiffs is not only not adverse to, but is in accord with, the public interest. Plaintiffs have further shown that the questions raised in this case, concerning the relative role of state and federal officials in protecting the public against the adverse effects of illegal immigration, are clearly so serious, substantial, difficult and doubtful as to merit further inquiry. 43. Having met their burden of persuasion, Plaintiffs respectfully request that the Court grant the preliminary injunction described in the motion supported by this memorandum.
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Dated: February 21, 2005.

Respectfully submitted, s/ Kris W. Kobach Kris W. Kobach, Esq. Attorney at Law Kansas Bar No. 17280 9159 Kessler Overland Park, KS 66212 Telephone: 913-638-5567 Facsimile: 816-235-5276 E-mail: kobachk@umkc.edu s/ Michael M. Hethmon Michael M. Hethmon, Esq. Federation for American Immigration Reform 1666 Connecticut Ave. N.W. Washington DC 20009 Telephone: 202-328-7004 Facsimile: 202-387-3447 E-mail: attorney@fairus.org
Attorneys for Plaintiffs

18

 
 376 F.Supp.2d 1022 (2005)
Kristen DAY, et al., Plaintiffs, v.
Kathleen SEBELIUS, personally and in her official capacity as Governor of Kansas, et al., Defendants.
No. 04-4085-RDR.
United States District Court, D. Kansas.
July 5, 2005.
102345 *1023 *1024 *1025 Kris W. Kobach, UMKC School of Law, Kansas City, MO, Michael M. Hethmon, Federation for American Immigration Reform, Washington, DC, for Plaintiffs.
E. Linton Joaquin, National Immigration Law Center, Los Angeles, CA, Lee Gelernt, Lucas Guttentag, American Civil Liberties Union, New York, NY, Peter D. Roos, META, Inc., Tanya Broder, National Immigration Law Center, Oakland, CA, J. Eugene Balloun, Shook, Hardy & Bacon L.L.P., Overland Park, KS, for Defendants.
MEMORANDUM AND ORDER
ROGERS, District Judge.
This is an action brought by the plaintiffs challenging K.S.A. 76-731a (formerly known as House Bill 2145), which became law on July 1, 2004. Plaintiffs contend that K.S.A. 76-731a unlawfully and unfairly allows undocumented or illegal aliens to attend Kansas universities and pay resident or in-state tuition.[1] Plaintiffs are either students at Kansas regents schools or parents of those students. The students are United States citizens who have been classified as non-residents of Kansas for tuition purposes at their respective schools. The defendants are the Governor of Kansas, the members of the Board of Regents, and the registrars of the University of Kansas, Kansas State University and Emporia State University. Two groups, Kansas League of United Latin American Citizens (KLULAC) and Hispanic American Leadership Organization, Kansas State Chapter (HALO), have been allowed to intervene as defendants in this action.
In their complaint, plaintiffs object to the ability of undocumented or illegal aliens[2] to avail themselves of K.S.A. 1026 76-731a. Plaintiffs seek injunctive relief and *1026 declaratory relief. They seek injunctive relief enjoining the
defendants from enforcing K.S.A. 76-731a as it applies to "aliens who are unlawfully present in the United States." They also ask the court to enjoin the defendants from discriminating between students who have been classified as legal residents of Kansas and them. Finally, they ask the court to declare that K.S.A. 76-731a violates federal law and is unconstitutional as it applies to "aliens who are unlawfully present in the United States."
On May 10, 2005 the court held a hearing in this matter. The following motions were considered at that time: (1) defendants' motion to dismiss; (2) intervenors' motion to dismiss; and (3) plaintiffs' motion to dismiss intervenordefendants. Prior to that hearing, the court had conducted several telephone conferences with the parties. The parties were advised that all evidence on the issues in this case should be presented prior to the May 10th hearing or at that hearing. All parties were in agreement that the hearing on May 10th would constitute the final hearing in this matter. The court subsequently received materials outside the pleadings from all parties. Under these circumstances, the court shall convert the pending motions to dismiss to motions for summary judgment. See Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 713 (10th Cir.2005); Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir.2004). Having considered all of the evidence presented and heard extensive argument from the parties, the court is now prepared to rule.

This litigation arises from the passage of two laws by Congress in 1996 restricting immigration and the status of immigrants: the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). These laws were passed by the same Congress only about six weeks apart. They were passed in part in response to the Supreme Court's decisions in Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (Texas statute which denies free education to alien children violates Equal Protection Clause) and Toll v. Moreno, 458 U.S. 1, 102 S.Ct. 2977, 73 L.Ed.2d 563 (1982) (University of Maryland's policy of denying treaty organization aliens the opportunity to pay reduced, in-state tuition constituted a violation of the Supremacy Clause).
The Kansas legislature passed the instant statute in 2004. The court is aware of least seven other states that have passed legislation to provide in-state tuition rates to illegal aliens: California, Illinois, New York, Oklahoma, Texas, Utah and Washington. The legislature of Maryland passed legislation to allow in-state tuition to illegal aliens, but the legislation was vetoed by the governor. At least two states have specifically passed statutes that do not allow illegal aliens to gain resident tuition status: Alaska and Mississippi. The legislature of Virginia passed legislation prohibiting illegal aliens from receiving resident tuition, but the legislation was vetoed by the governor. The court believes this is the first case to challenge the type of legislation passed by Kansas.
Plaintiffs' complaint consists of seven claims for relief. The court shall spend some time analyzing the claims made by the plaintiffs due to arguments that have been made about the confusing nature of the claims.
In Count 1, which is entitled "Violation of 8 U.S.C. § 1621," plaintiffs contend that K.S.A. 76-731a violates 8 1027 U.S.C. § 1621.[3]*1027 According to plaintiffs, § 1621 prohibits any state from offering any post-secondary
educational benefit, including instate tuition, to illegal aliens. Plaintiffs further allege that K.S.A. 76-731a does not meet the statutory loophole set forth in 8 U.S.C. § 1621(d), which allows states under certain circumstances to provide eligibility for illegal aliens to state benefits, because it does not contain the express statutory language required by federal law.
In Count 2, which is entitled "Violation of 8 U.S.C. § 1623," plaintiffs assert that K.S.A. 76-731a violates 8 U.S.C. 1028 § 1623(a).[4] According to plaintiffs, § 1623 *1028 prohibits any state from providing any postsecondary
education benefit, including in-state tuition, to an illegal alien unless a United States citizen is eligible for the same benefit. Plaintiffs further assert that § 1623 eliminated the application of 8 U.S.C. § 1621(d).
In Count 3, which is entitled "Violation of Regulations Governing Alien Students," plaintiffs contend that K.S.A. 76-731a violates the comprehensive regulatory scheme enacted by the federal government to govern the admission of nonimmigrant aliens to the United States for the purpose of enrolling them as students at postsecondary educational institutions. They specifically point to the Student and Exchange Visitor Information System (SEVIS), a comprehensive computerized system designed to track international students and exchange students. Plaintiffs contend that K.S.A. 76-731a frustrates this federal purpose by allowing aliens to illegally pose as students at Kansas institutions of higher education while remaining outside the SEVIS registration system.
In Count 4, which is entitled "Preemption," plaintiffs claim that K.S.A. 76-731a is preempted by the federal regulation of immigration. Plaintiffs suggest that Congress clearly intended to "occupy the field" in the area of regulating the provision of public benefits to aliens without a lawful immigration status. They assert: "The power to regulate immigration is unquestionably an exclusively federal power, and any state statute that regulates immigration is unconstitutional and therefore proscribed.... States can neither add to nor take from conditions lawfully imposed upon the admission or residence of aliens in the United States.... [K.S.A. 76-731a] is preempted because it is impossible for a person who is an illegal alien or otherwise present in the United States to both receive postsecondary education under [K.S.A. 76-731a], and to comply with federal immigration law."
In Count 5, which is entitled "Creation of Residence Status Contrary to Federal Law," plaintiffs allege that K.S.A. 76-731a creates residence status for illegal aliens contrary to federal law. Plaintiffs assert: "Congress has created a legal disability under federal law that renders illegal aliens incapable of claiming bona fide legal domicile in Kansas, notwithstanding the fact of physical presence or a subjective `intent' to remain indefinitely in the jurisdiction." They further allege: "None of the members of the class of alien beneficiaries of [K.S.A. 76-731a] who are illegal aliens possesses federal authorization to remain in the United States for even the shortest period of

time, and therefore cannot, as a matter of law acquire or possess the requisite intent to be a legal resident or domiciliary of Kansas. Kansas may not deem such non-citizens to possess such intent, nor alternatively waive such intent by exercise of its legislative powers." By doing so, plaintiffs argue that K.S.A. 76-731a violates the comprehensive scheme established by federal law for aliens.
In Count 6, which is entitled "Infringement Upon Exclusive Federal Powers," plaintiffs assert that K.S.A. 76-731a impermissibly infringes on Constitutional powers reserved to the federal government. They contend that the challenged Kansas law violates Congress' power over the regulation of interstate commerce and foreign affairs.
1029 *1029 Finally, in Count 7, which is entitled "Violation of Equal Protection Clause of U.S. Constitution," plaintiffs contend that K.S.A. 76-731a violates the Equal Protection Clause of the United States Constitution. Plaintiffs assert that equal protection is denied them based upon the following argument: "Illegal aliens have been deemed by Defendants to be Kansas residents for the express purpose of affording such aliens state postsecondary education benefits to which they are not entitled under federal law. Defendants have further denied nonresident U.S. citizens Plaintiffs the identical postsecondary education benefits to which they are expressly entitled by federal law." They further state:
Discriminating against U.S. citizens in favor of illegal aliens in the provision of postsecondary education benefits does not serve any important government objective. Awarding valuable benefits to individuals whose presence in the United States constitutes an ongoing violation of federal law plainly undermines the general governmental objective of promoting rule of law. Moreover, any purported government interest in encouraging higher education in the State's workforce is unpersuasive, because the illegal alien recipients of such postsecondary education benefits are not legally eligible to remain in the State of Kansas after completing their courses of study.
The court has provided a thorough explanation of the claims in order to respond to some of the arguments that have been made by the parties. The court will discuss these contentions as we address the pending motions.
PLAINTIFFS' MOTION TO DISMISS INTERVENOR-DEFENDANTS
Plaintiffs seek to dismiss the three anonymous illegal alien intervenors and the two organizational intervenordefendants.[5] Plaintiffs suggest the three individual intervenors should be dismissed because they failed to disclose their real names as required by Judge O'Hara's order of February 24, 2005. The court finds this issue moot. The intervenors have not included these individuals in their amended answer. Since they are no longer a part of this case, this aspect of the plaintiffs' motion is moot.
Plaintiffs also suggest that the association intervenors KLULAC and HALO should be dismissed because they lack associational standing. They initially argued that these organizations had not disclosed sufficient information to ascertain their standing to intervene. In response to that argument, KLULAC and HALO agreed to provide in camera information to the court for consideration of their standing. They have recently provided that information to the court.
In response to the information provided to the court, plaintiffs argue that KLULAC and HALO have failed to demonstrate they have standing in this case. They assert that (1) the organizations need to show that they have at least two members who have standing to intervene in this case; (2) these members cannot be one of the individual intervenors who failed to comply with Judge O'Hara's order; (3) the members must have been 1030 members of the organizations on October 20, 2004, the date the associations sought to intervene; (4) *1030 the members must be individuals as defined by K.S.A. 76-731a(b)(2); and (5) the members must be illegal aliens who have filed or will file the affidavits described in K.S.A. 86-731a(b)(2)(C).
The question initially presented by plaintiffs' motion is whether a party seeking to intervene must satisfy not only the requirements of Rule 24, but also the standing requirements of Article III. The Supreme Court has declined to determine this issue. See Diamond v. Charles, 476 U.S. 54, 68-9, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). The circuits have reached differing conclusions with some requiring that intervenors must independently meet Article III standing requirements, EEOC v. National Children's Center, Inc., 146 F.3d 1042, 1046 (D.C.Cir.1998); Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th Cir.1996); while others have held that intervenors need not show standing, Ruiz v. Estelle, 161 F.3d 814, 830 (5th Cir.1998); Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir.1989). The

Tenth Circuit has not considered the issue. This court finds itself in agreement with those courts that have determined that intervenors need not make a showing of standing. Rule 24 does not require a proposed intervenor to prove standing, but only that, as a practical matter, its interest could be impaired. In addition,
Article III represents a limitation on the power of the federal courts 0907 not a requirement of all who seek to come before them. If, at the outset, a federal court has correctly determined that it has an actual "case" or "controversy" before it, the purpose of Article III is not frustrated by allowing intervenors to subsequently participate in the proceedings.
Habitat Education Center, Inc. v. Bosworth, 221 F.R.D. 488, 493 (E.D.Wis.2004) (citation omitted).
Even if the court were to find that a showing of standing was necessary, we would conclude that the intervenors have demonstrated standing. An organization must satisfy three requirements to have associational standing: (1) its members must otherwise have standing to sue in their own right; (2) the interests it seeks to protect must be germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Roe No. 2 v. Ogden, 253 F.3d 1225, 1230 (10th Cir.2001). The court has reviewed the information filed by the intervenors. The court is confident that the in camera information, as well as the other information submitted by the intervenors, demonstrates that the organizations have associational standing. Contrary to the argument of the plaintiffs, there is no requirement of multiple members, one member of each organization is sufficient to confer standing. Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); American Library Ass'n v. FCC, 401 F.3d 489, 492 (D.C.Cir.2005); Doe v. Porter, 370 F.3d 558, 561 (6th Cir.2004). Moreover, the court fails to find any support for plaintiffs' position that the members of the associations cannot be one of the individual intervenors who failed to comply with Judge O'Hara's order. Accordingly, this motion shall be denied.
DEFENDANTS'/INTERVENORS' MOTIONS TO DISMISS
The defendants make the following arguments in their motion to dismiss. First, they contend the plaintiffs lack standing to assert Counts 1, 3, 4, 5 and 6 because they have failed to establish the three necessary elements of Article III standing. Second, they further assert that Counts 1 through 6 should be dismissed because the statutes 1031 and regulations relied upon by the plaintiffs do not create private causes of action. *1031 Third, they argue that K.S.A. 76-731a is not preempted by any federal statutes or regulations. Finally, they contend that Count 7 should be dismissed because plaintiffs have not pled an equal protection violation. The defendants have also suggested that Governor Sebelius should be dismissed because she is not a proper party. They assert she has no responsibility in enforcing K.S.A. 76-731a.
The intervenors make the following arguments in their motion to dismiss. First, they contend that the court lacks standing to assert Counts 1, 3, 4, 5 and 6. Second, they contend that Count 1 through 6 should be dismissed because the statutes and regulations relied upon by the plaintiffs do not create private causes of action. Finally, they contend that all claims asserted by the plaintiffs either fail to state a claim upon which relief can be granted or simply legally lack merit.
Governor Kathleen Sebelius
The defendants contend that Governor Sebelius is not a proper party to this lawsuit. They contend she should be dismissed because she has no role in enforcing K.S.A. 75-731a. "In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party." Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908). "Under United States Supreme Court precedent, when a plaintiff challenges the constitutionality of a rule of law, it is the state official designated to enforce that rule who is the proper defendant, even when that party has made no attempt to enforce the rule." American Civil Liberties Union v. Florida Bar, 999 F.2d 1486, 1490 (10th Cir.1993).
Under Kansas law, the Governor has no involvement with the enforcement of K.S.A. 76-731a. The Kansas Constitution merely gives the Governor generalized responsibility for "enforcement of the laws of this state." Kansas Const. Art. 1, § 3. This general enforcement power, however, is not sufficient to establish the connection

to the statute required to meet the Ex parte Young exception to Eleventh Amendment immunity. See Women's Emergency Network v. Bush, 323 F.3d 937, 949-50 (11th Cir.2003) (where enforcement of state statute is the responsibility of parties other than governor, the governor's general executive power to enforce the statute is insufficient to confer jurisdiction over him in an action challenging statute as unconstitutional); Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 331 (4th Cir.2001) (mere fact governor is under general duty to enforce laws does not make him a proper defendant in every action attacking constitutionality of a state statute), cert. denied, 535 U.S. 904, 122 S.Ct. 1203, 152 L.Ed.2d 142 (2002). Accordingly, the court shall dismiss Governor Sebelius as a defendant in this action.
Standing 0907 Counts 1, 3, 4, 5 and 6
The defendants and intervenors contend that plaintiffs lack standing to assert claims in Count 1 and Counts 3 through 6. Both parties initially agreed that plaintiffs do have standing to assert the claim under § 1623 in Count 2 and the claim under equal protection in Count 7.[6]
1032 It is well established that to litigate a justiciable controversy under Article III, a *1032 plaintiff must have standing to maintain suit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Morgan v. McCotter, 365 F.3d 882, 887 (10th Cir.2004). A party "raising only a generally available grievance about government 0907 claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large 0907 does not state an Article III case or controversy." Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130. As explained recently by the Tenth Circuit:
Although the standing question is often dressed in the dazzling robe of legal jargon, its essence is simple 0907 what kind of injuries are courts empowered to remedy and what kind are they powerless to address. Standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy. Heath v. Board of County Commissioners of Boulder County, 92 Fed.Appx. 667, 671-72 (10th Cir.2004) (quotations and citations omitted).
There are three requirements to Article III standing: (1) injury-in-fact, (2) causation, and (3) redressability. Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1280 (10th Cir.), cert. denied, 537 U.S. 947, 123 S.Ct. 411, 154 L.Ed.2d 291 (2002). An injury-in-fact is an "`invasion of a legally protected interest' that is (a) concrete and particularized and (b) actual or imminent, i.e., not conjectural or hypothetical." Id. (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). Causation requires that the injury is fairly traceable to the defendant's conduct, rather than some third party not before the court. Id. Redressability means that it is likely that a favorable court decision will redress the injury of the plaintiff. Id. If a party satisfies the minimal constitutional requirements, then a court may still deny standing for prudential reasons, "a judicially created set of principles that, like constitutional standing, places `limits on the class of persons who may invoke the courts' decisional and remedial powers.'" Board of County Commissioners of Sweetwater County v. Geringer, 297 F.3d 1108, 1112 (10th Cir.2002) (quoting Warth, 422 U.S. at 499, 95 S.Ct. 2197). The burden of establishing standing rests on the party invoking federal jurisdiction, and the evidence needed to carry that burden depends on the stage of the litigation. Id. At the summary judgment stage when standing is at issue, a plaintiff must demonstrate that there exists no genuine issue of material fact as to justiciability, and "mere allegations" of injury, causation, and redressability are not sufficient. Id.
The defendants and the intervenors argue initially that plaintiffs have no injury in fact. They point out that plaintiffs are not affected in any way by K.S.A. 76-731a. They assert:
[K.S.A. 76-731a] only affects the price certain students pay to attend a regents school. Thus, the only people affected by the amount of Tuition charged to certain students under [K.S.A. 76-731a] are the students who satisfy each of its requirements 0907 and plaintiffs are not among them. Plaintiffs do not have personal rights which are affected.
The defendants and intervenors further argue that a favorable decision will not benefit plaintiffs. Defendants and intervenors argue that striking down K.S.A. 76-731a as preempted by federal law will not benefit plaintiffs. They state: "Instead, Plaintiffs would simply deny certain Kansas high school graduates the right to pay in-state tuition."

Plaintiffs respond that they "possess a property right to the tuition premiums charged to them by Defendants 1033 under color of state law [K.S.A. 76-731a], a right *1033 arising under 8 U.S.C. § 1621." The position of plaintiffs is
that they have suffered an injury by being forced to pay out-of-state tuition while illegal aliens under K.S.A. 76-731a have been allowed to pay in-state tuition. They further contend that college education is a scarce resource and that competition for that resource gives them standing. Finally, they assert that, beyond their specific injury of having to pay more tuition, they are part of a larger group of individuals who possess standing to challenge K.S.A. 76-731a, "namely all citizens and lawfully-admitted aliens paying tuition at Kansas postsecondary educational institutions." In support of this argument, they make the following claim: "The more illegal aliens take advantage of the state subsidy under [K.S.A. 76-731a], the more likely it is that such subsidies will increase the financial burdens on Kansas universities and necessitate greater tuition hikes than would have otherwise occurred."
After a careful review of the evidence and the arguments, the court finds that plaintiffs have failed to demonstrate that they are injured in fact by K.S.A. 76-731a. Injury-in-fact must be concrete and imminent. Essence, Inc., 285 F.3d at 1281. Hypothetical or conjectural harm is not sufficient. Id. When a law does not apply to a party, that party has no invasion of a legally protected interest. Id. Here, none of the plaintiffs are subject to the provisions of K.S.A. 76-731a. Prior to the passage of the law, plaintiffs paid out-of-state tuition. With the passage of K.S.A. 76-731a, plaintiffs continued to pay out-of-state tuition. The law passed by the Kansas legislature does not apply to plaintiffs, and plaintiffs have made no argument that it does.
Plaintiffs' suggestion that they somehow have standing based on some property right in their tuition or based upon increased tuition rates is completely unfounded. They have provided no support for the contention that they, as out-of-state residents, have a "property right" in in-state tuition rates. In addition, they have failed to provide any evidentiary support for the contention that K.S.A. 76-731a has led to an increase in tuition rates. Plaintiffs have provided affidavits in which they show that their tuition rates have increased. They have also cited to newspaper articles that show that tuition rates did rise at Kansas universities in the time period following the passage of K.S.A. 76-731a. However, the record is barren of any evidence that the resulting tuition increases were the product of K.S.A. 76-731a. In fact, the anecdotal evidence before the court suggests otherwise. First, we note that the newspaper articles noted by plaintiffs also indicate that tuition rates at Kansas universities increased in the two years preceding the passage of K.S.A. 76-731a. Second, the information provided to the court suggests that the impact of K.S.A. 76-731a has been minimal. The parties have only identified a handful of students who have been able to take advantage of K.S.A. 76-731a, and most of those are not illegal aliens. As a result, we fail to find that plaintiffs have identified any injury-in-fact resulting from the passage of K.S.A. 76-731a.
Moreover, plaintiffs are unable to establish any legally connected interest to 8 U.S.C. § 1621, SEVIS or the general immigration laws. Plaintiffs are not affected by any of the specifically cited immigration laws or the general immigration laws in any particularized way. Plaintiffs are unable to assert or demonstrate any personal injury resulting from their violation. They stand in the same shoes as any citizen. Such circumstances fail to establish standing. See Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130 (plaintiff "claiming only harm to his and every 1034 citizen's interest in proper application of the Constitution and laws, *1034 and seeking relief that no more directly and tangibly benefits him than it does the public at large 0907 does not state an Article III case or controversy.").
Finally, plaintiffs have failed to show that a favorable decision on Counts 1, 3, 4, 5 and 6 will redress the injury to them. If the court were to find K.S.A. 76-731a is preempted by federal law or in violation of federal law as suggested in Counts 1, 3, 4, 5 and 6, plaintiffs will not receive any benefit. A favorable decision for the plaintiffs would require those who have received the benefit of K.S.A. 76-731a to pay more, but plaintiffs' tuition bills would not change. Since the relief that could be granted to plaintiffs by the court will provide them with no personal benefit, they lack standing. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ("The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. III requirement.").
In sum, plaintiffs are in a situation similar to others who have challenged other immigration policies and laws. See, e.g., Federation for American Immigration Reform, Inc. v. Reno, 93 F.3d 897 (D.C.Cir.1996) (immigration reform group lacks standing to challenge government's scheme for parole and adjustment of Cuban nationals as violation of federal immigration law), cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997);

Sadowski v. Bush, 293 F.Supp.2d 15 (D.D.C.2003) (individual lacks standing to challenge government's failure to fully enforce immigration laws and to allow illegal immigrants into United States); Ridge v. Verity, 715 F.Supp. 1308 (W.D.Pa.1989) (members of U.S. House of Representatives, certain states and immigration reform group lack standing to challenge inclusion of illegal aliens in 1990 census for purposes of congressional apportionment). Accordingly, the court finds that plaintiffs lack standing to bring the claims asserted in Counts 1, 3, 4, 5 and 6 of their amended complaint.
Private Right of Action 0907 Count 2
With the aforementioned decision, the court turns to consideration of the defendants'/intervenors' argument concerning Count 2. The defendants/intervenors contend that Count 2 should be dismissed because 8 U.S.C. § 1623 does not create a private right of action.
In briefs and arguments made after the defendants/intervenors filed their motions to dismiss, plaintiffs sought to recharacterize their claims. Although only one of the claims in the amended complaint appeared to be a preemption claim, plaintiffs suggested that the first six claims were all preemption claims. The court notes that none of the claims other than Count 4 use the word preemption or preempt in them. Plaintiffs apparently chose to take this approach because they believed they had clear Tenth Circuit authority, Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir.2004), that allowed them to proceed on preemption claims without the requirement that the particular statute or series of statutes provided a private cause of action. This plan, however, did not cure the standing problem they faced on their claims. To the extent that the plaintiffs contend that their first six claims are causes of action based upon preemption, the court finds that the plaintiffs lack standing to pursue them for the reasons previously stated. The defendants and intervenors conceded that plaintiffs had standing to pursue a claim based upon a violation of 8 U.S.C. § 1623. They recognized that plaintiffs' cause of action based upon a claim of enforcing § 1623, if meritorious, would meet the Article III standing requirements. The court agrees that 1035 plaintiffs do have standing on this claim. *1035 Accordingly, we must consider whether § 1623 creates a private right of action so that plaintiffs can pursue a claim to enforce it.
In Boswell v. Skywest Airlines, Inc., 361 F.3d 1263, 1266 (10th Cir.2004), the Tenth Circuit summarized the law for determining when a statute creates a private right of action as follows:
The test for determining whether a statute creates a private right of action has evolved substantially over the last thirty years. Supreme Court cases decided early in this period focused on Congressional purpose. See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) (stating that "under the circumstances here it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose" and concluding that sections 14(a) and 27 of the Securities Exchange Act, 15 U.S.C. §§ 77n(a), 77aa, authorized a federal cause for rescission or damages to a stockholder). Subsequently, the Court formulated a four-part inquiry, asking whether: (1) the plaintiff is part of the class for whose benefit the statute was enacted; (2) there is any indication of legislative intent, explicit or implicit, either to create or to deny a private right of action; (3) it would be consistent with the underlying purpose of the legislative scheme to imply a private right of action for the plaintiff; and (4) the cause of action is one traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); see also Southwest Air Ambulance, Inc. v. City of Las Cruces, 268 F.3d 1162, 1169 (10th Cir.2001) (discussing Cort).
Later Supreme Court decisions have shifted the inquiry again. Now, "Cort's four factors have been effectively condensed into one 0907 whether Congress expressly or by implication, intended to create a private cause of action." Sonnenfeld v. City & County of Denver, 100 F.3d 744, 747 (10th Cir.1996) (citing Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) and Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979)). Thus, in its recent decisions, the Supreme Court has emphasized that the private right of action inquiry focuses on the Congressional intent underlying the particular statute at issue:
Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative.

Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.
Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (internal quotation marks and citations omitted). This circuit's decisions have emphasized that Congressional intent is determinative. See, e.g., Davis-Warren Auctioneers, J.V. v. FDIC, 215 F.3d 1159, 1162 (10th Cir.2000) ("To decide whether a private right of action is implicit in a statute, we must determine `whether Congress', expressly or by implication, intended 1036 to create a private cause of action.") (internal quotation marks omitted); Chemical Weapons *1036 Working Group, Inc. v. U.S. Dep't of the Army, 111 F.3d 1485, 1493 (10th Cir.1997) ("In determining whether an implied private right of action exists under a particular statute, the focus is solely on congressional intent.").
In determining Congressional intent under this newer standard, we examine the statute for "rights-creating language," Sandoval, 532 U.S. at 288, 121 S.Ct. 1511, 149 L.Ed.2d 517, 0907 that which "explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff." Cannon v. Univ. of Chicago, 441 U.S. 677, 690 n. 13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), and language identifying "the class for whose especial benefit the statute was enacted," id. at 688 n. 9, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (internal quotation marks omitted). We also consider the relation between the specific provision at issue and the related statutory scheme. Love, 310 F.3d at 1353; see, e.g., Southwest Air, 268 F.3d at 1170 (examining the general regulatory structure of the Federal Aviation Act, 1958, 49 U.S.C. § 40101 et seq, in determining that the Anti-Head Tax Act, 49 U.S.C. § 40116, does not create a private cause of action); Chemical Weapons, 111 F.3d at 1494 (examining the "general regulatory scheme, comprised in this instance by the myriad of environmental statutes that regulate the Army's operations [at the facility at issue]" in concluding that the 1986 Defense Authorization Act did not establish a private cause of action).
The defendants begin by arguing that IIRIRA, of which 8 U.S.C. § 1623 is part, does not explicitly give individuals a remedy to enforce immigration laws. In fact, it specifically provides that the Secretary of Homeland Security has the responsibility to enforce it. See 8 U.S.C. § 1103(a)(1).[7] The intervenors concur in these arguments and assert that no support can be found for the idea that Congress intended to grant enforcement rights to any private citizens for the alleged violation asserted in Count 2.
Plaintiffs initially suggest that they have a private cause of action under § 1623 because "[n]o federal statute or regulation forecloses a right of action by U.S. citizens who are injured by a State violation of the requirements of [the statute]." They further argue that the language of the statute grants them express rights. They assert "[t]he language of the statute makes the U.S. citizen or national who is granted eligibility for a state postsecondary education benefit the beneficiary of the provision, even if he or she is not a resident of the state."
Plaintiffs have further suggested that they have a private cause of action under § 1623 because a private right of action is implied where a "compelling federal interest" dictates a reason for implementing civil remedies. They rely upon two Tenth Circuit cases from 1972 and 1973 for support of the "compelling federal interest" test. However, as pointed out by the defendants, the "compelling government interest" test is no longer used. As pointed out previously, the test has evolved from the four-factor Cort test to one factor: whether Congress, expressly or by implication, intended to create a private right of action.
1037 With the application of that test, the court fails to find any support that *1037 Congress intended to create a private right of action through the passage of 8 U.S.C. § 1623. Congress specifically designated the Secretary of Homeland Security as the individual in charge of enforcing immigration laws. There is nothing in § 1623 or the other immigration statutes that demonstrates an intent by Congress to create a private right of action. As pointed out by the defendants, the focus of § 1623 is illegal aliens, not citizens. This focus on aliens, rather than plaintiffs or citizens in general, "creates no implication of an intent to confer rights on [the plaintiffs]." Alexander v. Sandoval, 532 U.S. 275, 290, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Accordingly, the court finds that Count 2 must be dismissed because 8 U.S.C. § 1623 does not create a private right of action.
Equal Protection 0907 Count 7

Finally, the court shall turn to the equal protection claim asserted by plaintiffs in Count 7. The Fourteenth Amendment to the United States Constitution guarantees that "[n]o state shall... deny to any person within its jurisdiction the equal protection of the laws." This means the state must treat similarly situated individuals similarly, in the absence of an adequate reason to distinguish between them. As a general rule, however, "`legislatures are presumed to have acted within their constitutional power despite the fact, in practice, their laws result in some inequality.'" Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (quoting McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961)).
The court must consider the type of equal protection challenge asserted by plaintiffs. In Count 7 of their amended complaint, plaintiffs appear to allege only a facial equal protection challenge. However, in their briefs and during argument before the court, plaintiffs have suggested that they are also asserting an as-applied equal protection claim. The court would ordinarily be reluctant to consider the as-applied claim given its absence in the amended complaint. However, the court believes that the as-applied claim should be considered here for two reasons. First, the defendants/intervenors, although complaining about the lack of an as-applied claim in the amended complaint, have thoroughly responded to the claim. The court sees no prejudice to the defendants/intervenors in addressing this claim. Second, in the context of the present equal protection claim, a facial challenge would logically include within it an as-applied challenge. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 478, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (Marshall, J., concurring in part and dissenting in part) ("The formal label under which an equal protection claim is reviewed is less important than careful identification of the interest at stake and the extent to which society recognizes the classification as an invidious one."); Ramos v. Town of Vernon, 353 F.3d 171, 174 n. 1 (2nd Cir.2003).
Although the defendants/intervenors initially conceded standing on the plaintiffs' equal protection claim, the court directed the parties to submit briefs on that issue. The parties have since provided the court with new arguments on this issue. The court has previously discussed standing in some detail, but we shall further discuss the law as it relates to standing where equal protection claims are asserted.
In their equal protection claim, plaintiffs assert that K.S.A. 76-731a creates two classes of non-Kansas residents: 1038 illegal or undocumented aliens and United States citizens.[8] According to plaintiffs' allegations, *1038 although
these two classes are equally situated, the illegal aliens can receive in-state tuition rates under K.S.A. 76-731a while the United States citizens cannot. Plaintiffs suggest that the unavailability of in-state tuition to United States citizens from other states is the statute's discriminatory feature.
In addressing the issue of standing, plaintiffs point to several arguments. First, they rely upon affirmative action cases in support of their position that they have standing to assert their equal protection claim. Specifically, they point to Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663-64, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) for support. Second, they assert they are injured by K.S.A. 76-731a because they are forced to pay the higher out-of-state tuition rates. This argument is two-fold. They initially point out that they are required to pay higher rates simply by their status as out-of-state residents, but they also contend that the passage of K.S.A. 76-731a "places upward cost pressure on the tuition rates paid by all students, driving nonresident tuition rates higher."
In City of Jacksonville, an association of contractors challenged an ordinance that gave preferential treatment to certain minority-owned businesses in the award of city contracts. The Supreme Court held that the injury in fact constitutionally required for standing to challenge on equal protection ground a racially discriminatory procedure for distributing a scarce governmental benefit, such as public works contracts, is the "inability to compete on an equal footing" for the rationed benefit, not the deprivation of the benefit itself. City of Jacksonville, 508 U.S. at 666, 113 S.Ct. 2297.
Plaintiffs seem to believe that City of Jacksonville applies to every case where an equal protection claim is asserted. We must disagree. The Court in City of Jacksonville was concerned with standing in the context of an equal protection claim where plaintiffs claimed they had been disadvantaged by a governmental program that limited opportunities. The Court made clear that its decision was limited to these circumstances: "The `injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit." Id. (emphasis added).

The nature of the equal protection claim here differs from that asserted in City of Jacksonville. K.S.A. 76-731a establishes no barriers precluding plaintiffs from admission to Kansas universities. The fact that K.S.A. 76-731a allowed undocumented aliens to pay in-state tuition rates did nothing to change the situation of plaintiffs. From this standpoint, the exception created by K.S.A. 76-731a does not differ from the myriad of other exceptions created by Kansas law to allow some individuals to pay in-state tuition. See, e.g., K.S.A. 76-729(b)(1) (persons which includes spouses and dependents who are employees of a state educational institution); K.S.A. 76-729(b) 1039 (2) (persons which include *1039 spouses and dependents who are in military service); K.S.A. 76-729(b)(4) (persons which includes spouses and dependents having special domestic relations circumstances).
Plaintiffs have not been denied any benefit by K.S.A. 76-731a because they cannot fulfill the lawful, nondiscriminatory requirements or qualifications for the benefit. As explained by the defendants and the intervenors, the reason that plaintiffs must pay out-of-state tuition is K.S.A. 76-729, not K.S.A. 76-731a. There is no dispute that states can force out-of-state residents to pay more in tuition. Vlandis v. Kline, 412 U.S. 441, 452-53, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) ("We fully recognize that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis."). None of the plaintiffs meet the first two requirements for the application of K.S.A. 76-731a. Plaintiffs have made no suggestions that these requirements are unlawful or discriminatory. As noted by the Tenth Circuit:
[A] person who fails to satisfy lawful, nondiscriminatory requirements or qualifications for the benefit lacks standing to raise claims of discrimination in the denial of the benefit.... "[A] mere abstract denial of equal opportunity does not constitute injury in fact. A general denial of equal opportunity does not confer standing on a particular individual unless that individual would have had access to the benefit at stake in the absence of discrimination." N.A.A.C.P., Boston Chapter v. Harris, 607 F.2d 514, 520 (1st Cir.1979). Discrimination cannot be the cause of injury to an applicant who could not have obtained the benefit even in the absence of the discrimination.
Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 593-94 (10th Cir.1996).
Under these circumstances, the court finds that plaintiffs cannot demonstrate that K.S.A. 76-731a has any application to them. Accordingly, they are unable to demonstrate sufficient injury to establish standing. See Petit v. City of Chicago, 352 F.3d 1111, 1113 (7th Cir.2003) (officers who would have been rejected for promotion even without allegedly discriminatory process lacked standing to bring equal protection claim against that process because they failed to suffer cognizable injury), cert. denied, 541 U.S. 1074, 124 S.Ct. 2426, 158 L.Ed.2d 984 (2004); see also Rector v. City and County of Denver, 348 F.3d 935, 945 (10th Cir.2003) (named representatives of class of parking ticket recipients lacked standing to pursue claim that tickets deprived class of due process by giving erroneous impression the recipients would necessarily incur late fee if they tried to contest ticket; neither representative claimed to have legal basis for contesting ticket, and so could claim no injury in fact).
The court's earlier comments on the injury suffered by the plaintiffs concerning increased tuition rates are applicable here. Plaintiffs have made no showing that K.S.A. 76-731a has or will increase tuition rates in Kansas. Thus, the court fails to find that plaintiffs have established any injury in fact on their equal protection claim.
In addition, the court's prior discussion on redressability for the purposes of standing on Counts 1, 3, 4, 5 and 6 is equally applicable to plaintiffs' equal protection claim. The court cannot provide any relief that would be beneficial to the plaintiffs. See, e.g., Doe v. Pryor, 344 F.3d 1282, 1285-87 (11th Cir.2003) (lesbian mother, who lost child 1040 custody suit in state court *1040 based in part on the use of Alabama statute criminalizing "deviate sexual intercourse," lacked standing to challenge the statute on equal protection grounds because injury could not be redressed). Plaintiffs will still pay out-of-state tuition rates even if the court found that K.S.A. 76-731a violated the Equal Protection Clause. Accordingly, for all of the aforementioned reasons, the court finds that plaintiffs lack standing to assert their equal protection claim.
In reaching the decisions in this case, the court did not reach the issues of most of the claims asserted by the plaintiffs. This is both regrettable and fortunate. The issues raised by this litigation are important ones. The decision on what to do concerning the education of illegal aliens at the postsecondary level in our country is

indeed significant. That decision, however, is probably best left to the United States Congress and the Kansas legislature.
IT IS THEREFORE ORDERED that defendants' and intervenors' motions to dismiss (Doc. # 41 and 43), which the court has converted to motions for summary judgment, be hereby granted. The court hereby dismisses Counts 1 and 3 through 7 due to plaintiffs' lack of standing. The court further dismisses Count 2 because plaintiffs have no private right of action under 8 U.S.C. § 1623. Finally, the court also dismisses Governor Kathleen Sebelius as a party to this action.
IT IS FURTHER ORDERED that plaintiffs' motion to dismiss intervenor-defendants (Doc. # 81) be hereby denied.
IT IS SO ORDERED.
[1] The statute in general provides that any individual who attended an accredited Kansas high school for three years and either graduated or earned a Kansas general education development certificate, and meets the law's other criteria, is eligible to pay tuition rates equivalent to Kansas resident rates at regents schools. Although plaintiffs contend that the statute applies only to undocumented or illegal aliens, the statute appears to apply to all, with a few minor exceptions, who meet the designated criteria "regardless of whether the person is or is not a citizen of the United States of America." K.S.A. 76-731a(b)(2).
[2] All parties have referred to individuals who are not United States citizens who have entered this country unlawfully without documentation as "undocumented" or "illegal" aliens. The court intends to use these terms interchangeably during the course of this opinion.
[3] This statute provides as follows:
(a) In general Notwithstanding any other provision of law and except as provided in subsections (b) and (d) of this section, an alien who is not 0907
(1) a qualified alien (as defined in section 1641 of this title),
(2) a nonimmigrant under the Immigration and Nationality Act [8 U.S.C.A. § 1101 et seq.], or
(3) an alien who is paroled into the United States under section 212(d)(5) of such Act [8 U.S.C.A. § 1182(d)(5)] for less than one year, is not eligible for any State or local public benefit (as defined in subsection (c) of this section).
(b) Exceptions
Subsection (a) of this section shall not apply with respect to the following State or local public benefits:
(1) Assistance for health care items and services that are necessary for the treatment of an emergency medical condition (as defined in section 1396b(v)(3) of Title 42) of the alien involved and are not related to an organ transplant procedure.
(2) Short-term, non-cash, in-kind emergency disaster relief.
(3) Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease.
(4) Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the Attorney General, in the Attorney General's sole and unreviewable discretion after consultation with appropriate Federal agencies and departments, which (A) deliver in-kind services at the community level, including through public or private nonprofit agencies; (B) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and (C) are necessary for the protection of life or safety.
(c) "State or local public benefit" defined

(1) Except as provided in paragraphs (2) and (3), for purposes of this subchapter the term "State or local public benefit" means 0907
(A) any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government; and
(B)
(2) Such term shall not apply 0907
(A) to any contract, professional license, or commercial license for a nonimmigrant whose visa for entry is related to such employment in the United States, or to a citizen of a freely associated state, if section 141 of the applicable compact of free association approved in Public Law 99-239 or 99-658 (or a successor provision) is in effect;
(B) with respect to benefits for an alien who as a work authorized nonimmigrant or as an alien lawfully admitted for permanent residence under the Immigration and Nationality Act [8 U.S.C.A. § 1101 et seq.] qualified for such benefits and for whom the United States under reciprocal treaty agreements is required to pay benefits, as determined by the Secretary of State, after consultation with the Attorney General; or
(C) to the issuance of a professional license to, or the renewal of a professional license by, a foreign national not physically present in the United States.
(3) Such term does not include any Federal public benefit under section 1611(c) of this title.
(d) State authority to provide for eligibility of illegal aliens for State and local public benefits
A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.
[4] This portion of the statute provides as follows:
(a) In general
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.
[5] Procedurally, the court is puzzled by this motion. Many of the issues raised by plaintiffs in this motion were raised during the proceedings on the intervenors' motion to intervene. Judge O'Hara considered them and rejected them. Plaintiffs, however, failed to seek review of the magistrate's decision. This failure to seek review generally waives any further consideration of these issues by this court or on appeal. See Fed.R.Civ.P. 72(a). Nevertheless, the court shall review the matters.
[6] Following oral argument, the court directed the parties to provide supplemental briefs on the issue of plaintiffs' standing to assert their equal protection claim. In light of the court's request, the defendants and intervenors have taken different positions on this issue. The court shall consider this issue in our discussion of the equal protection claim.
[7] This statute reads as follows:
"The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers...."

[8] The defendants and intervenors argue strenuously that plaintiffs' primary flaw in its equal protection argument is that there is no classification based on alienage. They point out that K.S.A. 76-731a applies equally to all individuals, aliens or U.S. citizens. They contend: "There is no unequal or disparate treatment based on alienage and both groups or classes are treated equally. Since both undocumented aliens and nonresident U.S. citizens can obtain tuition rates equivalent to resident rates through [K.S.A. 76-731a] on the identical basis, Count VII should be dismissed." The court leaves this issue for another day, because we do not find that plaintiffs have standing to assert their equal protection claim even under the manner in which they contend K.S.A. 76-731a must be interpreted.
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 Day v. Sebelius, 227 F.R.D. 668 (2005)
227 F.R.D. 668 United States District Court,
D. Kansas.
Kristen DAY, et al., Plaintiffs, v.
Kathleen SEBELIUS, et al., Defendants.
No. 04–4085–RDR. | Feb. 24, 2005.
Attorneys and Law Firms
*670 Kris W. Kobach, UMKC School of Law, Kansas City, MO, Michael M. Hethmon, Federation for American Immigration Reform, Washington, DC, for Plaintiffs.
Clayton L. Barker, Michael F. Delaney, Michael C. Leitch, Spencer Fane Britt & Browne—Kansas City, Kansas City, MO, David W. Davies, William Scott Hesse, Kansas Attorney General, Topeka, KS, E. Linton Joaquin, National Immigration Law Center, Los Angeles, CA, Lee Gelernt, Lucas Guttentag, American Civil Liberties Union—New York, New York City, Peter D. Roos, Meta, Inc., Tanya Broder, National Immigration Law Center, Oakland, CA, J. Eugene Balloun, Shook, Hardy & Bacon L.L.P.—Overland Park, Overland Park, KS, for Defendants.
Opinion
MEMORANDUM AND ORDER
OHARA, United States Magistrate Judge.
I. Introduction and Background.
This suit challenges the legality of Kansas House Bill No. 2145 (“HB 2145”), which went into effect on July 1, 2004. Highly summarized, HB 2145 makes certain undocumented aliens in Kansas eligible for favorable in-state college tuition rates.1 To qualify, the student simply must have attended an accredited Kansas high school for at least three years, received a high school diploma or general educational development certificate from *671 a Kansas institution, and not be a resident of another state. In addition, undocumented and documented non-citizen aliens must sign an affidavit agreeing to upgrade their immigration status as soon as they are eligible.

1

In fact, the language of HB 2145 does not limit its

application to undocumented aliens. However, as a

practical matter, it is unlikely that others would benefit

from the law.

This suit was filed by Kristen Day, along with more than twenty other named plaintiffs, all of whom allegedly are students (or their parents who support them financially) classified as non-residents for purposes of college tuition and fees at state-funded institutions in Kansas. Plaintiffs have sued Kathleen Sebelius (the Governor of Kansas), along with various university officials who are responsible for implementing HB 2145. Plaintiffs seek declaratory and injunctive relief, specifically, to prevent defendants from discriminating between them and the undocumented aliens who have been classified as residents for the more favorable in-state tuition rates. In support of their suit, plaintiffs contend that HB 2145 violates two federal statutes, 8 U.S.C. §§ 1621 and 1623. Plaintiffs further contend that HB 2145 violates their Equal Protection rights under the Fourteenth Amendment to the United States Constitution, as well as other provisions of the Constitution.
This case is now before the court on the motion of the Kansas League of United Latin American Citizens (“Kansas LULAC”), the Hispanic American Leadership Organization (“HALO”), Kansas State [University] chapter, and three presently anonymous college students (A. Doe, J. Doe, and L. Doe), all of whom seek leave to intervene as additional defendants (doc. 11). Two of the proposed Doe defendants are enrolled at Kansas State University in Manhattan, and the third is enrolled at the University of Kansas in Lawrence; all three also have filed a separate motion for a protective order, seeking to allow them to continue to proceed anonymously in this litigation (doc. 13).
Plaintiffs have filed a consolidated response opposing both of the above-described motions (doc. 31). In addition, the court has considered the memorandum filed in support of the motion to intervene (doc. 12), the proposed intervenors’ already-filed answer to plaintiffs’ amended complaint (doc. 40), the memorandum filed in support of the motion for protective order (doc. 14), the memorandum in support of plaintiffs’ consolidated response (doc. 32), the proposed intervenors’ reply brief with regard to the motion to intervene (doc. 36), and finally, the proposed intervenors’ reply in support of the motion for protective order (doc. 37). The court is now ready to rule.
Plaintiffs, it should be noted, suggest that the above-described motions present “weighty substantive issues,” specifically: (1) whether any of the proposed
1

Day v. Sebelius, 227 F.R.D. 668 (2005)

intervenors has a fundamental property stake at issue in this case; (2) whether Article III standing exists for organizational entities such as Kansas LULAC and HALO to intervene; and (3) whether the court may enter any protective order that would serve to conceal the identity of undocumented aliens. Plaintiffs further suggest, but without citing any authority, that the undersigned magistrate judge should confine his involvement to “preliminary” or “procedural” issues, so as to allow the Hon. Richard D. Rogers, Senior U.S. District Judge, to decide the motions.
[1] Plaintiffs apparently misunderstand the powers conferred to magistrate judges in this district by virtue of 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72, and D. Kan. Rule 72.1.1(c) and (d). Although the powers of a federal magistrate judge are more limited than those of a district judge, the relevant distinction is between “non-dispositive” and “dispositive” rulings, i.e., absent the consent of all parties, a magistrate judge only may make the former and may not make the latter. As a matter of law, an order granting leave to intervene is non-dispositive.2 Further, plaintiffs certainly cannot seriously suggest that a routine motion for protective order is dispositive. In any event, having been informed of plaintiffs’ record position, Judge Rogers has asked the undersigned to proceed with deciding these motions.

2

See United States v. Certain Real Property, 751

F.Supp. 1060, 1061 (E.D.N.Y.1989).

Regardless of whether plaintiffs’ stated concerns are well-placed, the undersigned does not presume to establish any “law of the case” as it relates to the relative merits of the parties’ positions concerning the legality of HB 2145. If Judge Rogers disagrees with *672 any of the undersigned’s findings in support of the non-dispositive rulings made in this order, surely Judge Rogers will feel free to make that disagreement known when he makes his dispositive rulings.3

3

Judge Rogers will rule, among other dispositive issues,

the motions to dismiss filed by the proposed

intervenors and the various Kansas state defendants

(docs. 41 and 43, respectively). These motions to

dismiss probably will not have been fully briefed until

mid-March 2005 (see doc. 46).

In any event, for the reasons set forth below, the motion to intervene of Kansas LULAC, HALO, and A. Doe, J. Doe, and L. Doe, will be granted. The motion for protective order by the Doe intervenors, however, will be denied.

II. Analysis and Discussion.

A. Motion for Intervention. As mentioned earlier, the proposed intervenors include three undocumented alien students, A., J., and L. Doe, who allegedly meet the conditions required by HB 2145 and who are benefitting from new law, i.e., they currently are enrolled in Kansas public universities and are paying in-state tuition. In addition, the proposed intervenors include Kansas LULAC and HALO, both of which allege they are membership organizations that “likely include either undocumented students or parents of undocumented students [to] join these three students.”4

4

Doc. 11, at 2.

Intervention is governed by Rule 24 of the Federal Rules of Civil Procedure. It provides:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common.
. . . . .
In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
The proposed intervenors argue that intervention is appropriate in this case as a matter of right under Rule 24(a)(2), and permissively under Rule 24(b)(2). Plaintiffs, however, argue that the applicable criteria have not been met for either type of intervention.
As explained below, the court finds that the proposed intervenors should be allowed to intervene as a matter of right pursuant to Rule 24(a)(2). Thus, the court need not discuss at length permissive intervention under Rule 24(b)(2).5
2

Day v. Sebelius, 227 F.R.D. 668 (2005)

5

If the court were to address the issue of permissive

intervention at length, that issue very likely would be

resolved in favor of the proposed intervenors. That is,

as discussed in section II(A)(4) of this decision, it is

clear that the motion to intervene is timely. There are

common questions of law and fact between the

proposed intervenors’ defenses and plaintiffs’ claims.

And the intervention will not unduly delay or prejudice

the rights of the original parties. Therefore, permissive

intervention appears appropriate under Rule 24(b)(2).

See Ames v. Uranus, Inc., No. 92–2170, 1992 WL

281399, at *1 (D.Kan. Sept. 14, 1992).

1. Compliance with Rule 24(c). [2] Plaintiffs assert that intervention—whether as a matter of right or permissive—should be denied because the proposed intervenors have failed to comply with Fed.R.Civ.P. 24(c). As applied here, Rule 24(c) requires that a pleading setting forth the proposed intervenors’ defenses “accompany” their motion to intervene.
The opening sentence of the motion to intervene suggests that a proposed answer is attached to the motion, but it is not. The court’s electronic case filing system reflects, however, that just eighteen minutes after the *673 motion to intervene was filed, the proposed intervenors filed their answer to plaintiffs’ original complaint (doc. 15). And, after plaintiffs filed an amended complaint (doc. 38), the proposed intervenors filed an answer to the amended complaint (doc. 40).
Technically, the court believes, the proposed intervenors should not have filed an answer before obtaining leave to intervene. But Rule 24(c) is less than clear with regard to whether any unsigned copy of the complaint or answer of the proposed intervenor should be attached as an exhibit to the motion for intervention, or whether the complaint or answer of the proposed intervenor simply should be signed and filed. The former seems preferable (i.e., less presumptuous), and indeed that approach is implicitly sanctioned by Form 23 in the Appendix to the Federal Rules of Civil Procedure. Still, though, plaintiffs have cited no authority for the proposition that the suggested form absolutely must be followed. Given that even plaintiffs acknowledge that the rationale of Rule 24(c) is simply to put the court (and the non-moving party) in a meaningful position to determine whether intervention is appropriate,6 and given the state of the record in this case, it seems a bit of a stretch for plaintiffs to argue that Rule 24(c) constitutes any serious impediment to the court granting intervention. To accept plaintiffs’ Rule 24(c) argument here would elevate form over substance, something the court naturally declines to do.

6

See Hill v. Kansas Gas Serv. Co., 203 F.R.D. 631, 634

(D.Kan.2001).

2. The Proposed Intervenors’ Interest in the Controversy. [3] Intervention of right pursuant to Rule 24(a)(2) should be allowed “where no one would be burt and greater justice could be attained.”7 Plaintiffs do not appear to contend that any party would be harmed by allowing the proposed intervention. Instead, the gist of plaintiffs’ argument is that the proposed intervenors do not have a legally protectable interest “relating to the property or transaction which is the subject of” this action, as required by Rule 24(a)(2).

7

Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1250

(10th Cir.2001).

[4] [5] “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”8 It is well-established in this regard that educational benefits created by statute are property interests that cannot be taken away without adherence to the minimum procedural requirements of Due Process.9

8

Board of Regents of State Colleges v. Roth, 408 U.S.

564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

9

See Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42

L.Ed.2d 725 (1975).

The anonymous proposed intervenors, as noted above, currently are benefitting from HB 2145, in that they are attending Kansas public universities and paying favorable in-state tuition rates. Likewise, plaintiffs do not seriously dispute that HALO and Kansas LULAC have members who are entitled to exercise their rights under HB 2145 as the law currently stands.
Plaintiffs argue that HB 2145 cannot create a property interest because the law is unconstitutional. Plaintiffs also argue that previous cases holding that educational benefits were a property interest must be interpreted as limited to instances where the beneficiary is a citizen of the United States. Finally, plaintiffs argue that any right created by HB 2145 is not substantial enough to rise to the level of constitutional protection, since HB 2145 does not create a right to education, but rather only a right to reduced
3

Day v. Sebelius, 227 F.R.D. 668 (2005)

tuition.
[6] As earlier indicated, plaintiffs’ primary argument is that the statute at issue cannot create a property interest because the statute is unconstitutional. This argument is circular and thus wholly unpersuasive. Regardless of today’s ruling on the issue of intervention, Judge Rogers later will decide the merits of plaintiffs’ constitutional challenge to HB 2145. Presently, though, HB 2145 is the law of the state of Kansas, and that law creates a right to in-state tuition for certain undocumented aliens. Unless and *674 until it is ultimately decided that HB 2145 is unconstitutional, the law is in force and, as such, is sufficient to confer a legally protectable interest in the proposed intervenors.
[7] Plaintiffs’ second argument, that the Due Process Clause of the Fourteenth Amendment protects only educational rights of United States citizens, is equally without merit. That is, it is well-established that Due Process protections inure to undocumented aliens residing in the United States.10

10

See Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382,

72 L.Ed.2d 786 (1982).

Plaintiffs’ third argument, that the purported right at stake is not substantial enough to merit constitutional protection, also fails. Whether a student is required to pay nonresident or in-state tuition is an issue that the Supreme Court addressed in a different context in Vlandis v. Kline.11 The court construes the opinion in that case as determining that the right to be treated as a resident for state college tuition purposes is a cognizable right for Due Process purposes. Even were the proposed intervenors’ interest considered only economic, it is well-settled that monetary interests related to a case may be protected through intervention.12 Moreover, the court has found no law requiring that the interest required by Rule 24(a)(2) be a “fundamental” interest, at least as argued and defined by plaintiffs.13

11

412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973).

12

See Utah Ass’n of Counties, 255 F.3d at 1252.

13

Cases have called this interest a “substantial legal

interest.” Id., at 1253. The court concludes that the

proposed intervenors have alleged a substantial legal

interest in this controversy.

Therefore, the court concludes that the proposed intervenors do have an interest in this case and that they have satisfied that portion of Rule 24(a)(2). Further, for essentially the same reasons, the court concludes that the proposed intervenors’ ability to protect that interest may be impaired or impeded by the disposition of this action.

3. Adequate Protection of the Proposed Intervenors’ Interests. Under Rule 24(a)(2), the proposed intervenors must show that their interests are not adequately represented by the current parties. The Tenth Circuit in this regard has stated:
Although an applicant for intervention as of right bears the burden of showing inadequate representation, that burden is the minimal one of showing that representation may be inadequate. The possibility that the interests of the applicant and the parties may diverge need not be great in order to satisfy this minimal burden.14

14

Id., at 1254 (citations and quotations omitted).

[8] The proposed intervenors have satisfied their minimal burden. As noted above, the current defendants include the Governor of Kansas and various university officials who are responsible for implementing HB 2145. To the court’s knowledge, none of these existing defendants are or ever will be personally impacted by HB 2145. The proposed intervenors may have access to evidence that the government of the state of Kansas and the officials of Kansas colleges may not have.15

15

See id, at 1255 (citing Nat’l Farm Lines v. Interstate

Commerce Comm’n, 564 F.2d 381 (10th Cir.1977)).

The existing defendants presumably are seeking to protect the interests of the public in Kansas, as well as the global interests for all of the public Kansas universities. Although these defendants and the proposed intervenors would be on the “same side” of the case and as such generally opposed to plaintiffs’ arguments, the private interests of the proposed intervenors may diverge from the above-described public interests at some point. This is particularly true where, as here, the proposed intervenors’ private interests are viewed by some in state government as controversial (and thus politically risky) public policy interests. In this regard, the record reflects that, on July 21, 2004, three weeks after HB 2145 went into effect and just two days after this suit was filed, Kansas Attorney
4

Day v. Sebelius, 227 F.R.D. 668 (2005)

General Phil Kline issued a press release which indicated that he would not “personally” involve himself in this case, even though typically it would be the Attorney General’s obligation to defend the Governor *675 and the other state officials sued by plaintiffs. Mr. Kline justified this decision by stating that his personal and political beliefs conflict with defendants’ position in this case. Mr. Kline thus decided to “delegate” the defense of the case to his office’s Civil Litigation Division.16 The court neither compliments nor castigates Mr. Kline’s decision. But, as a practical matter, Mr. Kline’s ambivalence highlights the very real risks to which the proposed intervenors would be exposed if intervention were not allowed.

16

See Exhibit 1 to memorandum in support of motion to

intervene (doc. 12).

Simply stated, although a “presumption of adequate representation arises when an applicant for intervention and an existing party have the same ultimate objective in the litigation,”17 this presumption is rebutted when the public interest represented by the existing parties “may differ from the would-be intervenor’s particular interest.”18 The court finds that the proposed intervenors have rebutted the presumption of adequate representation. Further, the court finds that the existing defendants, despite the best of intentions, may not adequately represent the proposed intervenors’ interests in this case.

17

Utah Ass’n of Counties, 255 F.3d at 1255 (citing

Northwest Forest Resource Council v. Glickman, 82

F.3d 825, 838 (9th Cir.1996)).

18

Id. (citing Coalition of Ariz./New Mexico Counties For

Stable Econ. Growth v. Dept. of Interior, 100 F.3d 837,

845 (10th Cir.1996)).

4. Timeliness of the Motion for Intervention. [9] Plaintiffs filed this case on July 19, 2004. The proposed intervenors moved to intervene three months later, on October 20, 2004. Notably, when the motion to intervene was filed, no significant motions had been filed, and no case management deadlines had been set. That is, the initial scheduling conference in this case was not held until November 9, 2004.19

19

See doc. 27.

The court assesses the timeliness of a motion for intervention under Rule 24 “in light of all the

circumstances, including the length of time since the applicant knew of his interest in the case, prejudice to the existing parties, prejudice to the applicant, and the existence of any unusual circumstances.”20 Courts have held that intervention was timely even where three years had passed since the filing of the complaint.21

20

See Sanguine, Ltd. v. United States Dep’t of Interior,

736 F.2d 1416, 1418 (10th Cir.1984).

21

See Utah Ass’n of Counties, 255 F.3d at 1250.

Plaintiffs have not shown how, if at all, they would be prejudiced by allowing intervention here. The existing defendants do not oppose intervention. The movants, for the reasons stated above, clearly would be prejudiced by denying leave to intervene. There was no undue delay in moving to intervene. The court concludes that the motion to intervene in this case was made in a timely manner and thus satisfies this requirement of Rule 24.

5. Standing of HALO and Kansas LULAC. [10] Plaintiffs argue that HALO and Kansas LULAC, both unincorporated associations, lack standing to sue on behalf of their members in this case. The proposed intervenors argue that standing is not a requirement for their intervention. In fact, there is a split among the circuits regarding whether an intervenor must meet the standing requirements of Article III. It appears that this issue still is unresolved in the Tenth Circuit. In any event, it seems unnecessary here for the court to determine whether standing is a requirement in intervention cases. This is because the proposed intervenors seek to intervene as defendants. That is, standing must be proven by the party invoking federal jurisdiction, typically the plaintiff. The Supreme Court has held that Article III standing requirements are met as long as at least one or more of the plaintiffs have a personal stake in the outcome of the controversy.22 Therefore, the court concludes *676 that standing requirements (if indeed standing is required for defendants at all) would be met here because the standing of at least some of the proposed intervenor-defendants (i.e., A. Doe, J. Doe, and L. Doe) is not challenged by plaintiffs on any basis other than the previously rejected (i.e., circular) argument that HB 2145 is unconstitutional.

22

See Buckley v. Valeo, 424 U.S. 1, 12, 96 S.Ct. 612, 46

L.Ed.2d 659 (1976); and Watt v. Energy Action Educ.

Found., 454 U.S. 151, 160, 102 S.Ct. 205, 70 L.Ed.2d

309 (1981). In this regard, it should be noted that, via

recently filed motions to dismiss, plaintiffs’ standing in

this litigation has been challenged by the existing

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Day v. Sebelius, 227 F.R.D. 668 (2005)
defendants as well as the proposed intervenors. See docs. 41–44.

[11] But even assuming for the sake of discussion that there is a requirement that must be met for all of the proposed defendant intervenors, the undersigned magistrate judge concludes, for the reasons explained below, that HALO and Kansas LULAC also satisfy standing requirements in this case. Of course, should Judge Rogers disagree on this point, that certainly is his prerogative.
The Supreme Court has outlined a three-part test for deciding whether an association has standing to sue on behalf of its members.23 Under this test, at least as restated by the Tenth Circuit, “[a]n association has standing when ‘(a) its members would otherwise have standing to sue in their own right; (b) the interest it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’ ”24

23

Hunt v. Washington State Apple Adver. Comm’n, 432

U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).

24

Bressler v. Amer. Fed’n Of Human Rights, 44

Fed.Appx. 303, 343 (10th Cir.2002) (citing Hunt, 432

U.S. at 343, 97 S.Ct. 2434).

HALO and Kansas LULAC meet all three of these requirements. HALO asserts that its membership at Kansas State University includes undocumented Kansas students. Kansas LULAC represents that it does not ask its members about their residency or citizenship status, but maintains that its activities serve the interests of undocumented students, and that it “probably” has such students among its membership. In any event, Kansas LULAC’s activities will potentially be harmed if plaintiffs prevail in this case.25 Therefore, the court concludes that the individual members of these organizations would be entitled to bring suit on their own behalf and that the interests HALO and Kansas LULAC seek to protect are germane to those groups’ purposes. Finally, it does not appear that any of the claims asserted, or the relief requested, require the members of these organizations to individually participate in this case. Therefore, the court concludes that the proposed intervenors meet any standing requirements which may exist in this case.

25

See Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct.

1361, 31 L.Ed.2d 636 (1972) (organization must show

that its activities or its members will suffer injury).

For the reasons set forth above, the court concludes that the proposed intervenors have satisfied all of the requirements of Fed.R.Civ.P. 24(a)(2). The motion to intervene therefore is granted, as a matter of right.

B. Motion for Protective Order. [12] As earlier indicated, A., J., and L. Doe have asked the court to enter a protective order which would allow them to continue to proceed anonymously in this case. Each of these proposed intervenors allegedly are students at Kansas public colleges, and each lacks lawful immigration status. They moved to the United States from Mexico with their parents.26 Each of these proposed intervenors, through counsel, asserts:

26

The court presumes that all three of these anonymous

intervenors were brought here as minors. However, the

motion is silent as to whether this is true of L. Doe.

She is concerned that if her identity as an undocumented person became known, that certain members of the community might threaten or otherwise make difficult her continued presence at school. She also fears that someone might report her presence and that of her family to the U.S. Citizenship and Immigration Services, jeopardizing the life they have made here.27

27

Doc. 13, at 2. This particular paragraph refers to A.

Doe. However, other than differences in language to

account for the gender of the student, the allegations of

each of the anonymous intervenors are identical.

In addition, and more particularly, A. Doe has stated under oath:
While I have been a student at the University of Kansas, several students have *677 come to me to complain about “immigrants” and “illegal aliens” working in Kansas. These complaints have not been directed at me but at others, notably “those in Garden City.” I have little doubt that if these students knew I was undocumented and seeking to support AB 2145[sic], I would become the object of substantial ill feeling and possibly retaliation. I am thus fearful for my safety if my identity became known. If my identity becomes known, I am fearful that someone would report my parents and me to the immigration authorities. In the four and one-half years since we arrived in the United States, we have created a productive life in Kansas. To be deported would create a terrible hardship on all of us.28
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Day v. Sebelius, 227 F.R.D. 668 (2005)

28

Doc. 37, Attach. 1, at ¶¶ 5–6.

And L. Doe similarly has stated:
I am fearful that if my identity were made known to the general public through this case that it would jeopardize the continued residence of myself, my brother, and my parents, who sacrificed so much to make a new life here in Kansas. This fear is based on the fear that our identity would be reported to immigration officials who would seek to deport us to Mexico, where we no longer have anything. I also am fearful that public identity of my status could lead fellow students who do not agree with the lawsuit and who may be hostile to undocumented persons to treat me badly at school. This would be a change from my current situation in which I have fully integrated into the KSU community.29

29

Doc. 37, Attach. 2, at ¶¶ 4–5.

The intervenors propose an order which would allow plaintiffs to learn their identities, but which would prevent disclosure of their identities to any non-parties. Plaintiffs oppose this motion on two grounds. First, plaintiffs argue that the court lacks the power to prevent any of the parties from disclosing information to the United States Department of Immigration and Customs Enforcement (“ICE”) with regard to any undocumented alien. And secondly, plaintiffs argue that these proposed intervenors’ immigration status is not the type of personal information that merits the requested relief.
[13] [14] Fed.R.Civ.P. 26(c) provides that a court, upon a showing of good cause, “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” As the parties seeking a protective order, the proposed intervenors of course must show that good cause exists to warrant such an order.30 “To establish good cause, [the] party must submit ‘a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.’ ”31

30

Bryan v. Eichenwald, 191 F.R.D. 650, 651

(D.Kan.2000) (citing Sentry Ins. v. Shivers, 164 F.R.D.

255, 256 (D.Kan.1996)).

31

Id. (citing Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n.

16, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)).

As a preliminary matter, but ultimately quite significantly, the court finds that the proposed intervenors have not met the specificity requirement of Rule 26(c). Although the court understands and appreciates the potential stigma attached to the anonymous intervenors’ undocumented status, the court finds that the sparse record, with only very vague and conclusory allegations regarding this stigma and possible retribution, are not particular enough to warrant a protective order.
As to the more substantive, practical matter of whether this motion would be granted in this case upon a more specific showing, the court will address the two principal legal questions briefed by the parties. First, does federal law bar the court from preventing disclosure of immigration status? Second, is undocumented alien status the type of personal information the court should protect by allowing parties to proceed anonymously? As explained in more detail, the answers to both of these questions is “No.”

*678 1. The Court’s Power to Take the Action Requested. [15] Plaintiffs assert that 8 U.S.C. §§ 1373 and 1644 preclude this court “from ordering that parties to this case or their counsel not disclose the proposed intervener’s [sic] identities to the public or the federal government.”32 Plaintiffs, at best, are only partially correct in this assertion.

32

Doc. 32, at 12.

8 U.S.C. § 1373 provides:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (Emphasis added.)
8 U.S.C. § 1644 is similarly limited. It is clear from the plain language of these statutes that they only apply here to the extent that this court would purport to prevent disclosure by a government entity or official to ICE. Nothing in either of these statutes precludes the court from ordering plaintiffs, who are private citizens instead of government officials, to refrain from disclosing the
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Day v. Sebelius, 227 F.R.D. 668 (2005)
information at issue.
There is nothing in the record from which it can reasonably be inferred that the government officials who are defendants of record have any interest in “outing” the proposed intervenors as undocumented aliens. Notably, none of the defendants have filed any opposition to the motion for a protective order. The only parties opposed to entry of such an order are plaintiffs.
In any event, despite plaintiffs’ disturbingly casual reading of 8 U.S.C. §§ 1373 and 1644, the court finds that it clearly does have the power to preclude plaintiffs from disclosing immigration status information to any person or entity, including ICE. Since the court has the power and discretion to enter the requested order, at least to the extent that it would bind plaintiffs, the court will proceed to examine whether such an order is appropriate in this particular case.

2. Whether Immigration Status is the Type of Personal Information that Warrants Leave to Proceed Anonymously. Proceeding under a pseudonym in federal court is, by all accounts, “an unusual procedure.”33 Moreover, there does not appear to be any specific statute or rule supporting the practice.34 In Femedeer v. Haun, the Tenth Circuit held that “[t]o the contrary, the Federal Rules of Civil Procedure mandate that all pleadings contain the name of the parties, and Rule 17(a) specifically states that ‘[e]very action shall be prosecuted in the name of the real party in interest.’ ”35

33

M.M. v. Zavaras, 139 F.3d 798, 800 (10th Cir.1998)

(quotation omitted).

34

See id.

35

227 F.3d 1244, 1246 (10th Cir.2000) (citing

Fed.R.Civ.P. 10(a), and quoting Fed.R.Civ.P. 17(a)).

However, like other courts, the Tenth Circuit has “recognized that there may be exceptional circumstances warranting some form of anonymity in judicial proceedings.”36 Although totally ignored by the proposed intervenors as well as the plaintiffs, in Femedeer the Tenth Circuit adopted the following standard:

36

Id.

Lawsuits are public events. A plaintiff should be permitted to proceed anonymously only in exceptional cases involving matters of highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff’s identity. The risk that a plaintiff may suffer some embarrassment is not enough.37

37

Id. (quoting Doe v. Frank, 951 F.2d, 320, 324 (11th

Cir.1992)).

The Tenth Circuit also has “held that it is proper to weigh the public interest in determining whether some form of anonymity is warranted.”38

38

Id., citing Zavaras, 139 F.3d at 802–03.

*679 In Femedeer, the Tenth Circuit was called upon to determine whether a convicted sex offender should be allowed to proceed anonymously in order to conceal his sex offender status. The subject of the litigation was whether Utah’s sex offender registry was unconstitutional. Since the ultimate goal of plaintiff’s case was to keep his sex offender status from becoming public knowledge, plaintiff wanted to proceed anonymously with his attack on the registry law.
As the Tenth Circuit stated in Femedeer, “the public has an important interest in access to legal proceedings, particularly those attacking the constitutionality of popularly enacted legislation.”39 The court also found that the plaintiff in that case had not “established real, imminent personal danger.”40 Finally, the court concluded that the disclosure of his “identity in the caption of [the] lawsuit is not coterminous to the harm he is seeking to avoid by filing [his] claim .... Ordinarily, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials.”41

39

Id.

40

Id.

41

Id.

Although the undersigned magistrate judge believes that Tenth Circuit precedent is absolutely binding here, it should be noted that other courts dealing with this issue of
8

Day v. Sebelius, 227 F.R.D. 668 (2005)

anonymity have looked at various factors that have relevance to the case at bar:
whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and, relatedly, the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.42

42

James v. Jacobson, 6 F.3d 233, 238 (4th Cir.1993).

The court, as noted above, appreciates the fact that undocumented alien status is a sensitive matter. However, particularly in this day and age (as witnessed by the very enactment of HB 2145), this sort of information strikes the court as fundamentally distinguishable from the type of “highly personal” information that has led other courts to grant leave to proceed anonymously, such as in Doe v. A Corp.43 and Doe v. United Serv. Life Ins. Co.44 Likewise, as distinguished from cases like Roe v. Wade,45 and the five cases upon which the Doe parties heavily rely,46 the anonymous intervenors are not challenging a criminal statute, such that the outcome of this case would change whether they were violating federal laws. Nor are the proposed intervenors challenging the constitutionality of the laws which make their immigration status illegal, i.e., regardless of the outcome of this case, the anonymous intervenors probably will continue to be undocumented aliens. *680 This case will only affect the amount of tuition they will be asked to pay to attend public Kansas universities. This factor weighs against entry of a protective order.

43

709 F.2d 1043, 1044 n. 1 (5th Cir.1983) (anonymity of

both parties warranted to protect attorney-client

privilege).

44

123 F.R.D. 437, 439 (S.D.N.Y.1988) (anonymity

allowed because of sensitive privacy and retaliation

concerns in suit by homosexual against insurance

company alleging discriminatory practices; no

unfairness to defendant who was aware of claimant’s

true identity).

45

410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). It

does not appear that the plaintiff’s anonymity was

contested in Roe v. Wade. In any event, Ms. Roe’s

desire to have an abortion in contravention of an

existing Texas statute clearly rises to the level of the

“highly personal” information that is safeguarded

through anonymous proceedings.

46

Doe v. Miller, 573 F.Supp. 461 (N.D.Ill.1983); John

Doe I. v. Meese, 690 F.Supp. 1572 (S.D.Tex.1988);

John Doe No. 1 v. Georgia Dep’t of Public Safety, 147

F.Supp.2d 1369 (N.D.Ga.2001); Carmen Doe v.

Wilson, 57 Cal.App.4th 296, 67 Cal.Rptr.2d 187

(1997); and Doe v. Comm’r of Transitional Assistance,

437 Mass. 521, 773 N.E.2d 404 (2002). The Doe

parties cite these five cases in their reply brief (doc.

37), to support the proposition that “[t]he

overwhelming authority supports anonymity for

undocumented persons.” But the Doe parties fail to

mention that none of these five cases states any

rationale or analysis to justify the decision to allow

undocumented persons to litigate anonymously.

Therefore, these cases are unpersuasive.

The anonymous intervenors have alleged a general fear of stigma and retaliation if their identities are disclosed. However, as noted above, the record simply does not support the relief that they have requested. That is, the court finds that the vague, conclusory allegations by the Doe parties do not support the entry of a protective order. The anonymous intervenors claim that they are afraid of risking deportation but, according to the representations set forth in their motion to intervene, these students already have sworn out affidavits attesting that they are taking all necessary steps to obtain legal citizenship. The court would be astonished if the anonymous intervenors were a top ICE priority, given their representations that they are attempting to obtain legal status. This weighs against entry of a protective order.
As to the effect disclosure may have on the anonymous intervenors’ families, this weighs in favor of granting the motion for a protective order, but only slightly. The intervenors’ families are non-parties and might be considered “innocent.” However, this is always the case when an undocumented alien files a lawsuit that does not also involve his or her family members. The court declines to adopt in effect what would be a general rule protecting illegal immigration status of non-party family members. Nor does the court believe that the circumstances of the instant case merit any special consideration for those family members.
9

Day v. Sebelius, 227 F.R.D. 668 (2005)
None of the anonymous intervenors are minors. Thus, their ages do not support entry of a protective order. As to whether the action is against a government agency, that consideration is moot in the instant case; the government actors involved in this lawsuit are on the same side and seek the same outcome as the anonymous intervenors. In that respect, this case again dramatically differs from Roe v. Wade and the like, where the risk of government retaliation was a substantial consideration. Therefore, neither of these factors weigh in favor of entry of a protective order.
Finally, it must be acknowledged that granting the requested protective order would not result in any harm to plaintiffs. The anonymous intervenors have proposed a protective order which would allow plaintiffs to know the intervenors’ identities, but would require plaintiffs not to disclose those identities to any non-parties. The court does not believe that any party would be injured by such an order. This factor weighs in favor of entry of a protective order.
The court concludes that, on balance, the relevant considerations militate against entry of a protective order.

And in any event, as noted above, in the first instance, the record is such that the anonymous intervenors have not provided a particularized showing of need or other circumstances warranting an order granting leave to proceed anonymously.
III. Conclusion and Order.
The court grants the motion to intervene filed by Kansas LULAC, HALO, and A., J., and L. Doe (doc. 11). The court, however, denies the motion for a protective order to allow the Doe defendants to continue to proceed anonymously (doc. 13). The five intervenors shall file an amended answer to plaintiffs’ amended complaint by March 4, 2005. The caption and the body of their amended answer shall include the true names of all the intervenors.
IT IS SO ORDERED.
	  

10

 
 PROTO, STAY
U.S. District Court District of Kansas (Topeka) CIVIL DOCKET FOR CASE #: 5:04−cv−04085−RDR−JPO

Day et al v. Sebelius et al Assigned to: District Judge Richard D. Rogers Referred to: Magistrate Judge James P. O'Hara Case in other court: 10CCA, 05−03309
US Supreme Court, 07−01193 Cause: 28:2201 Declaratory Judgement
Plaintiff

Date Filed: 07/19/2004 Date Terminated: 07/05/2005 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Ms. Kristen Day

represented by Kris W. Kobach UMKC School of Law 5100 Rockhill Road Kansas City , MO 64110−2499 816−235−2390 Fax: 816−235−5276 Email: kobachk@umkc.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael M. Hethmon Federation for American Immigration Reform 1666 Connecticut Ave. − Ste. 400 Washington , DC 20009 202−328−7004 Fax: 202−387−3447 Email: mhethmon@irli.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Sonna L. Day

represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Cody Echols

represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff David C. Eichman

represented by

Plaintiff Brandi P. Gillette
Plaintiff Christopher J. Heath
Plaintiff Amy E. Hughes
Plaintiff Jeraldyn L. Hughes
Plaintiff Kenneth H. Hughes

Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address)

Plaintiff Nicole C. Keene
Plaintiff Heidi L. Landherr
Plaintiff Roberta K. MacGregor
Plaintiff Robert R. Manzel
Plaintiff Karla A. Manzel

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kayla L. Manzel
Plaintiff Jonathan D. Miller
Plaintiff Mary L. Miller
Plaintiff Lashonda M. Montgomery
Plaintiff Michelle Prahl

Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon

Plaintiff Kyle Rohde
Plaintiff Marcy R. Rutan
Plaintiff Joshua B. Sheade
Plaintiff Jamie Whittenberg
Plaintiff Lindsey D. Whittington

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon (See above for address) LEAD ATTORNEY

V. Defendant Kathleen Sebelius personally and in her official capacity as Governor of Kansas TERMINATED: 07/05/2005
Defendant Reginald L. Robinson personally and in his official capacity as President and Chief Executive Officer, Kansas Board of Regents TERMINATED: 12/02/2004

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Clayton L. Barker 3051 W. 144th Terrace Leawood , KS 66224 913−897−9884 Email: cbarker3@kc.rr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W. Davies Johnson County District Attorney's Office PO Box 728 Olathe , KS 66051 913−715−3138 Email: david.davies@jocogov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael F. Delaney Spencer Fane Britt &Browne−−Overland Park 40 Corporate Woods−Ste. 700 9401 Indian Creek Parkway Overland Park , KS 66210−2005 913−345−8100 Fax: 913−345−0736 Email: mdelaney@spencerfane.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Scott Hesse Kansas State Board of Healing Arts 235 S. Topeka Blvd. Topeka , KS 66603−3068 785−296−8066 Email: wm_scott_hesse@cox.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch Kansas Attorney General− 10th Ave 120 S.W. 10th Avenue, 2nd Floor Topeka , KS 66612−1597 785−296−2215 Fax: 785−296−6296 Email: michael.leitch@ksag.org TERMINATED: 12/02/2004
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W. Davies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Robert Hemenway personally and in his official capcity as Chancellor of the University of Kansas TERMINATED: 12/02/2004
Defendant Jon Wefald personally and in his official capacity as President of Kansas State University at manhattan TERMINATED: 12/02/2004

Michael F. Delaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Scott Hesse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) TERMINATED: 12/02/2004
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W. Davies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael F. Delaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Scott Hesse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) TERMINATED: 12/02/2004
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W. Davies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael F. Delaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Scott Hesse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) TERMINATED: 12/02/2004

Defendant Kay Schallenkamp personally and in her official capacity as President of Emporia State University TERMINATED: 12/02/2004
Defendant Richard Bond Chairman of the Kansas Board of Regents
Defendant Donna L. Shank Member of the Kansas Board of Regents in her official capacity
Defendant Janice DeBauge Member of the Kansas Board of Regents in her official capacity
Defendant William R. Docking Member of the Kansas Board of Regents

represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David W. Davies (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael F. Delaney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Scott Hesse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) TERMINATED: 12/02/2004
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton L. Barker (See above for address)

in his official capacity
Defendant Lewis L. Ferguson Member of the Kansas Board of Regents in his official capacity
Defendant Frank Gaines Member of the Kansas Board of Regents in his official capacity
Defendant Nelson Galle Member of the Kansas Board of Regents in his official capacity
Defendant James Grier, III Member of the Kansas Board of Regents in his official capacity
Defendant Deryl W. Wynn Member of the Kansas Board of Regents in his official capacity

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Dr Cindy Derritt Registrar of Kansas State University in her official capacity
Defendant Dr Monty Nielson Registrar of Kansas State University in his official capacity
Defendant Dr Lehymann F. Robinson Registrar of Emporia State University in his official capacity
V. Intervenor Defendant Kansas League of United Latin American Citizens

represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clayton L. Barker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Leitch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by E. Linton Joaquin National Immigration Law Center−LA 3435 Wilshire Boulevard, Suite 2850 Los Angeles , CA 90010 213−639−3900 Fax: 213−639−3911 Email: joaquin@nilc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Gelernt American Civil Liberties Union − NY − 17th 125 Broad Street − 17th Floor New York , NY 10004 212−549−2616 Fax: 212−549−2654 Email: lgelernt@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lucas Guttentag American Civil Liberties Union − NY −

Intervenor Defendant
The Hispanic American Leadership Organization Kansas State Chapter

17th 125 Broad Street − 17th Floor New York , NY 10004 212−549−2617 Fax: 212−549−2654 Email: lguttentag@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter D. Roos META, Inc. 483 Ninth Street − Suite 250 Oakland , CA 94607 510−267−3765 Fax: 510−645−9660 Email: roosmeta@earthlink.net LEAD ATTORNEY PRO HAC VICE
Tanya Broder National Immigration Law Center−Oakland 405 14th St. − Ste. 1400 Oakland , CA 94612 510−663−8282 Fax: 510−663−2028 Email: broder@nilc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
J. Eugene Balloun Shook, Hardy &Bacon LLP − Kansas City/Grand 2555 Grand Boulevard Kansas City , MO 64108−2613 816−474−6550 Fax: 816−5547 Email: eballoun@shb.com ATTORNEY TO BE NOTICED
represented by E. Linton Joaquin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter D. Roos (See above for address) LEAD ATTORNEY

Intervenor Defendant A. Doe
Intervenor Defendant J. Doe

PRO HAC VICE
Tanya Broder (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
J. Eugene Balloun (See above for address) ATTORNEY TO BE NOTICED
represented by E. Linton Joaquin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter D. Roos (See above for address) LEAD ATTORNEY PRO HAC VICE
Tanya Broder (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
J. Eugene Balloun (See above for address) ATTORNEY TO BE NOTICED
represented by E. Linton Joaquin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
J. Eugene Balloun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Intervenor Defendant L. Doe

Lucas Guttentag (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter D. Roos (See above for address) LEAD ATTORNEY PRO HAC VICE
Tanya Broder (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by E. Linton Joaquin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
J. Eugene Balloun (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lucas Guttentag (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Peter D. Roos (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tanya Broder (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 07/19/2004

# Docket Text
1 COMPLAINT with trial location of Topeka, Kansas, filed by Kristen Day, Sonna L Day, Cody Echols, David C Eichman, Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Karla A Manzel, Kayla L Manzel, Robert R Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington. (Attachments: # 1 Exhibit A Relevant Kansas Statutes # 2 Exhibit B Relevant Kansas Administrative Regulations # 3 Exhibit C Relevant Federal Statutes)(sal) (Entered:

07/19/2004 07/20/2004 07/20/2004 07/22/2004 09/09/2004 09/10/2004 09/10/2004 09/10/2004 09/17/2004 09/20/2004
10/12/2004 10/20/2004 10/20/2004

07/19/2004)
FILING FEE PAID: in the amount of $ 150.00, receipt number 048017 (sal) (Entered: 07/19/2004)
2 MINUTE ORDER: Magistrate Judge K. Gary Sebelius recuses himself and orders that this case be reassigned to the Honorable James P. O'Hara, United States Magistrate Judge, for all further pretrial proceedings.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry)(sc) (Entered: 07/20/2004)
Magistrate Judge James P. O'Hara added. Magistrate Judge K. Gary Sebelius no longer assigned to case. (This is a text entry only; there is no document associated with this transaction) (sc) (Entered: 07/20/2004)
3 MINUTE ORDER OF RECUSAL AND REASSIGNMENT. Case reassigned to Judge Richard D. Rogers for all further proceedings. Judge Julie A. Robinson recuses herself and is no longer assigned to case. The case number is changed to 04−4085−RDR. (ms) (Entered: 07/22/2004)
PRO HAC VICE FEE PAID: on 9/9/04 for attorney Hethmon, Michael M re: 4 MOTION for attorney Michael M. Hethmon to appear pro hac vice in the amount of $50.00; Receipt Number 104905 (THIS IS A TEXT ONLY ENTRY−NO DOCUMENT IS ASSOCIATED WITH THIS TRANSACTION) (trs) (Entered: 09/15/2004)
4 MOTION by Kris W. Kobach for attorney Michael M. Hethmon to appear pro hac vice for Plaintiffs (ms) (Entered: 09/10/2004)
5 AFFIDAVIT of Michael Meriwether Hethmon in support of 4 MOTION for attorney Michael M. Hethmon to appear pro hac vice by Plaintiffs(ms) (Entered: 09/10/2004)
6 CERTIFICATE OF SERVICE by Plaintiffs of 4 MOTION for attorney Michael M. Hethmon to appear pro hac vice and 5 Affidavit in Support of Pro Hac Vice Motion (ms) (Entered: 09/10/2004)
7 ANSWER to Complaint by Robert Hemenway, Reginald L Robinson, Kay Schallenkamp, Kathleen Sebelius, Jon Wefald.(Leitch, Michael) (Entered: 09/17/2004)
8 Order: Defendants' motion for attorney Michael M. Hethmon to appear pro hac vice 4 is denied. This court's local rules provide that motions for admission pro hac vice shall be accompanied by an affidavit on the form prescribed by court rule (See Appendix) D. Kan. Rule 83.5.4(a). The affidavit that Mr. Hethmon provided is not notarized, nor does it contain the statement "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct." See 28 U.S.C. 1746. The court advised counsel for defendants of this deficiency and directed that an amended affidavit be filed by September 17, 2004. To date, no amended affidavit has been filed. The motion is therefore denied without prejudice for reassertion consistent with this court's local rules. Signed by Magistrate Judge James P. O'Hara on 9/20/04.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (mt) (Modified on 9/20/2004 to correct punctuation. (mg)) (Entered: 09/20/2004)
9 ORDER SETTING SCHEDULING CONFERENCE: Scheduling Conference set for 11/9/2004 at 11:00 AM before Magistrate Judge James P. O'Hara. Report of Parties Planning Meeting deadline 10/29/2004. Signed by Magistrate Judge James P. O'Hara on 10/12/04. (mt) (Modified on 10/28/2004 to correct the name of the judge to hold scheduling conference.(mg)) (Entered: 10/12/2004)
10 MOTION for attorney Peter D. Roos to appear pro hac vice by Movants A., J., and L. Does, Kansas League of United Latin Amerian Citizens, The Hispanic American Leadership Organization (Attachments: # 1 Affidavit Peter D. Roos)(Balloun, J.) (Entered: 10/20/2004)
11 MOTION to Intervene and to File Answer in Intervention by Movants A., J., and L. Does, Kansas League of United Latin Amerian Citizens, The Hispanic American Leadership Organization (Balloun, J.) (Entered: 10/20/2004)

10/20/2004 10/20/2004 10/20/2004 10/20/2004 10/21/2004 10/25/2004
10/25/2004
10/28/2004 10/28/2004 10/29/2004
11/02/2004

12 MEMORANDUM IN SUPPORT of 11 MOTION to Intervene and to File Answer in Intervention by Movants A., J., and L. Does, Kansas League of United Latin Amerian Citizens, The Hispanic American Leadership Organization (Attachments: # 1 Exhibit Press Release)(Balloun, J.) (Entered: 10/20/2004)
13 MOTION for Protective Order Allowing Intervenors "A.," "J.," and "L." Does to Proceed Anonymously by Movants A., J., and L. Does, Kansas League of United Latin Amerian Citizens, The Hispanic American Leadership Organization (Balloun, J.) (Entered: 10/20/2004)
14 MEMORANDUM IN SUPPORT of 13 MOTION for Protective Order Allowing Intervenors "A.," "J.," and "L." Does to Proceed Anonymously by Movants A., J., and L. Does, Kansas League of United Latin Amerian Citizens, The Hispanic American Leadership Organization (Balloun, J.) (Entered: 10/20/2004)
15 ANSWER to Complaint by A., J., and L. Does, Kansas League of United Latin Amerian Citizens, The Hispanic American Leadership Organization.(Balloun, J.) (Entered: 10/20/2004)
PRO HAC VICE FEE PAID: on 10/21/04 re: 10 MOTION for attorney Peter D. Roos to appear pro hac vice in the amount of $50.00; Receipt Number 105563 (THIS IS A TEXT ONLY ENTRY−NO DOCUMENT IS ASSOCIATED WITH THIS TRANSACTION) (trs) (Entered: 10/21/2004)
16 ORDER expediting the time for filing any responses to the motions of movants A., J., and L. Does, Kansas League of United Latin Amerian Citizens, and the Hispanic American Leadership Organization for leave to intervene [doc. 11] and for entry of a protective order [doc. 13] to October 29, 2004. Any reply in support of movants' motions shall be filed by November 5, 2004. Signed by Magistrate Judge James P. O'Hara on 10/25/04. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry)(hw) (Entered: 10/25/2004)
17 ORDER granting 10 Motion to Appear Pro Hac Vice. Peter D. Roos is hereby granted leave to appear pro hac vice on behalf of The Hispanic American Leadership Organization, A., J., and L. Does and Kansas League of United Latin Amerian Citizens. If pro hac vice counsel has not already done so, counsel is directed to immediately register for electronic notification pursuant to the court's Administrative Procedures by completing a registration form at www.ksd.uscourts.gov/features/forms/pdfforms/efilereg.pdf. Ordered by Magistrate Judge James P. O'Hara on 10/25/04.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (mg) (Entered: 10/25/2004)
18 MOTION for attorney Lee Gelernt to appear pro hac vice by Movants A., J., and L. Does, Kansas League of United Latin Amerian Citizens, The Hispanic American Leadership Organization (Attachments: # 1 Affidavit of Lee Gelernt)(Balloun, J.) (Entered: 10/28/2004)
PRO HAC VICE FEE PAID: on 10/28/04 for attorney Lee Gelernt re: 18 MOTION for attorney Lee Gelernt to appear pro hac vice in the amount of 50.00 Receipt Number 048349 (THIS IS A TEXT ONLY ENTRY−NO DOCUMENT IS ASSOCIATED WITH THIS TRANSACTION) (sal) (Entered: 10/29/2004)
19 ORDER granting 18 Motion to Appear Pro Hac Vice. Lee Gelernt is granted leave to appear pro hac vice on behalf of The Hispanic American Leadership Organization; A., J., and L. Does, and Kansas League of United Latin Amerian Citizens. If pro hac vice counsel has not already done so, counsel is directed to immediately register for electronic notification pursuant to the court's Administrative Procedures by completing a registration form at www.ksd.uscourts.gov/features/forms/pdfforms/efilereg.pdf. Ordered by Magistrate Judge James P. O'Hara on 10/29/04.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (mg) (Entered: 10/29/2004)
20 ORDER granting the unopposed motions 11 of the Kansas League of United Latin American Citizens, the Hispanic American Leadership Organization (Kansas State University chapter), and Does "A.", "J.", and "L." for leave to intervene in this case and 13 to permit "A. Doe", "J. Doe", and "L. Doe" to proceed anonymously. Ordered by Magistrate Judge James P. O'Hara on 11/02/04.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (mg) (Entered: 11/02/2004)

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21 MOTION for attorney Linton Joaquin to appear pro hac vice by Intervenor Defendants A. Doe, J. Doe, L. Doe, Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization (Attachments: # 1 Affidavit of Linton Joaquin)(Balloun, J.) (Entered: 11/03/2004)
PRO HAC VICE FEE PAID: on 11/3/04 re: 21 MOTION for attorney Linton Joaquin to appear pro hac vice in the amount of 50.00 Receipt Number 048368 (THIS IS A TEXT ONLY ENTRY−NO DOCUMENT IS ASSOCIATED WITH THIS TRANSACTION) (sal) (Entered: 11/03/2004)
22 MOTION for attorney Tanya Broder to appear pro hac vice by Intervenor Defendants A. Doe, J. Doe, L. Doe, Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization (Attachments: # 1 Affidavit of Tanya Broder)(Balloun, J.) (Entered: 11/04/2004)
PRO HAC VICE FEE PAID: on 11/4/04 for attorney Tanya Broder re: 22 MOTION for attorney Tanya Broder to appear pro hac vice in the amount of 50.00 Receipt Number 048377 (THIS IS A TEXT ONLY ENTRY−NO DOCUMENT IS ASSOCIATED WITH THIS TRANSACTION) (sal) (Entered: 11/04/2004)
23 ORDER granting 22 Motion to Appear Pro Hac Vice. Tanya Broder is granted leave to appear pro hac vice on behalf of L. Doe; Kansas League of United Latin American Citizens; The Hispanic American Leadership Organization; A. Doe and J. Doe. If pro hac vice counsel has not already done so, counsel is directed to immediately register for electronic notification pursuant to the court's Administrative Procedures by completing a registration form at www.ksd.uscourts.gov/features/forms/pdfforms/efilereg.pdf. Ordered by Magistrate Judge James P. O'Hara on 11/04/04.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (mg) (Entered: 11/04/2004)
24 ORDER granting 21 Motion to Appear Pro Hac Vice. E. Linton Joaquin is granted leave to appear pro hac vice on behalf of L. Doe; Kansas League of United Latin American Citizens; The Hispanic American Leadership Organization; A. Doe and J. Doe. If pro hac vice counsel has not already done so, counsel is directed to immediately register for electronic notification pursuant to the court's Administrative Procedures by completing a registration form at www.ksd.uscourts.gov/features/forms/pdfforms/efilereg.pdf. Ordered by Magistrate Judge James P. O'Hara on 11/04/04.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (mg) (Entered: 11/04/2004)
25 MOTION to Dismiss and Motion to Dismiss Individual Capacity Claims by Defendants Robert Hemenway, Reginald L Robinson, Kay Schallenkamp, Kathleen Sebelius, Jon Wefald (Leitch, Michael) (Entered: 11/05/2004)
26 MINUTE ORDER: By 12:00 noon, Monday, November 8, 2004, all parties and counsel who intend to appear at the November 9, 2004 telephone scheduling conference shall provide the court by e−mail to ksd_ohara_chambers@ksd.uscourts.gov the telephone numbers they may be reached at the designated time. (Entered: 11/08/2004)
27 SCHEDULING ORDER: See order for details. Signed by Magistrate Judge James P. O'Hara on 11/9/04. (mt) (Entered: 11/09/2004)
28 Second MOTION for attorney Michael M. Hethmon to appear pro hac vice by Plaintiffs Kristen Day, Sonna L Day, Cody Echols, David C Eichman, Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Karla A Manzel, Kayla L Manzel, Robert R Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington (Attachments: # 1 # 2 # 3)(Kobach, Kris) (Entered: 11/10/2004)
29 ORDER granting 28 Motion to Appear Pro Hac Vice. Michael M. Hethmon is granted leave to appear pro hac vice on behalf of plaintiffs Cody Echols; David C. Eichman; Brandi P. Gillette; Christopher J. Heath; Amy E. Hughes; Jeraldyn L. Hughes; Kenneth H. Hughes; Nicole C. Keene; Heidi L. Landherr; Roberta K. MacGregor; Karla A. Manzel; Kayla L. Manzel; Robert R. Manzel; Jonathan D. Miller; Mary L. Miller; Lashonda M. Montgomery; Michelle Prahl; Kyle Rohde; Marcy R. Rutan;

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Joshua B. Sheade; Jamie Whittenberg; Lindsey D. Whittington; Kristen Day and Sonna L. Day. If pro hac vice counsel has not already done so, counsel is directed to immediately register for electronic notification pursuant to the court's Administrative Procedures by completing a registration form at www.ksd.uscourts.gov/features/forms/pdfforms/efilereg.pdf. Ordered by Magistrate Judge James P. O'Hara on 11/10/04.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (mg) (Entered: 11/10/2004)
PRO HAC VICE FEE PAID: on 11/10/04 re: 28 Second MOTION for attorney Michael M. Hethmon to appear pro hac vice in the amount of $50.00 Receipt Number 048393 (THIS IS A TEXT ONLY ENTRY−NO DOCUMENT IS ASSOCIATED WITH THIS TRANSACTION) (sal) (Entered: 11/10/2004)
Minute Entry for proceedings held before Magistrate Judge James P. O'Hara : Scheduling Conference held on 11/9/2004 (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (mt) (Entered: 11/17/2004)
30 MOTION for attorney Lucas Guttentag to appear pro hac vice by Intervenor Defendants A. Doe, J. Doe, L. Doe, Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization (Attachments: # 1 Affidavit of Lucas Guttentag)(Balloun, J.) (Entered: 11/22/2004)
PRO HAC VICE FEE PAID: on 11/22/04 re: 30 MOTION for attorney Lucas Guttentag to appear pro hac vice in the amount of $50.00 Receipt Number 048434 (THIS IS A TEXT ONLY ENTRY−NO DOCUMENT IS ASSOCIATED WITH THIS TRANSACTION) (sal) (Entered: 11/22/2004)
31 RESPONSE by Plaintiffs Kristen Day, Sonna L Day, Cody Echols, David C Eichman, Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Karla A Manzel, Kayla L Manzel, Robert R Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington re 13 MOTION for Protective Order Allowing Intervenors "A.," "J.," and "L." Does to Proceed Anonymously, 11 MOTION to Intervene and to File Answer in Intervention (Kobach, Kris) (Entered: 11/24/2004)
32 RESPONSE by Plaintiffs Kristen Day, Sonna L Day, Cody Echols, David C Eichman, Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Karla A Manzel, Kayla L Manzel, Robert R Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington re 13 MOTION for Protective Order Allowing Intervenors "A.," "J.," and "L." Does to Proceed Anonymously, 11 MOTION to Intervene and to File Answer in Intervention MEMORANDUM IN SUPPORT OF PLAINTIFFS' RESPONSE. (Kobach, Kris) (Entered: 11/24/2004)
33 STIPULATION Plaintiffs' and Defendants' Stipulation and Agreed Order Substituting Certain Parties and Withdrawing Defendants' Pending Motion to Dismiss and Motion to Dismiss Individual Capacity Claims Without Prejudice by Kristen Day, Sonna L Day, Cody Echols, David C Eichman, Brandi P Gillette, Christopher J Heath, Robert Hemenway, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Karla A Manzel, Kayla L Manzel, Robert R Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Reginald L Robinson, Kyle Rohde, Marcy R Rutan, Kay Schallenkamp, Kathleen Sebelius, Joshua B Sheade, Jon Wefald, Jamie Whittenberg, Lindsey D Whittington. (Barker, Clayton) (Entered: 11/30/2004)
34 ORDER granting 30 Motion to Appear Pro Hac Vice. Lucas Guttentag is granted leave to appear pro hac vice on behalf of L. Doe; Kansas League of United Latin American Citizens; The Hispanic American Leadership Organization; A. Doe and J. Doe. If pro hac vice counsel has not already done so, counsel is directed to immediately register for electronic notification pursuant to the court's Administrative Procedures by completing a registration form at www.ksd.uscourts.gov/features/forms/pdfforms/efilereg.pdf. Ordered by Magistrate Judge James P. O'Hara on 11/30/04.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (mg) (Entered: 11/30/2004)

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35 ORDER re 33 Stipulation substituting certain parties and withdrawing defendants' MOTION to Dismiss and Motion to Dismiss Individual Capacity Claims 25 : Reginald L Robinson in his individual and personal capacities is dismissed. Richard Bond, Chairman of the Kansas Board of Regents, and Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier III, and Deryl W Wynn, Members of the Kansas Board of Regents, in their official capacities are substituted as defendants. Drs. Robert Hemenway, Kay Schallenkamp, and Jon Wefald, in their official and personal capacities are dismissed from this action. Dr. Cindy Derritt, Registrar of the University of Kansas, Dr. Monty Nielson, Registrar of Kansas State University, and Dr. Lehymann F Robinson, Registrar of Emporia State University, in their official capacities are substituted as defendants. Governor Kathleen Sebelius in her personal capacity is dismissed from this action. Plaintiffs are to file an amended complaint within 10 days of the Stipulation's filing on 11/30/04 and an amended answer on behalf of the substituted defendants is to be filed within 10 days after the filing of the amended complaint. Defendants' pending motion to dismiss is withdrawn. Signed by Judge Richard D. Rogers on 12/2/04. (ms) (Entered: 12/03/2004)
36 REPLY to Response to Motion by Intervenor Defendants A. Doe, J. Doe, L. Doe, Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization re: 11 MOTION to Intervene and to File Answer in Intervention (Balloun, J.) (Entered: 12/06/2004)
37 REPLY to Response to Motion by Intervenor Defendants A. Doe, J. Doe, L. Doe, Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization re: 13 MOTION for Protective Order Allowing Intervenors "A.," "J.," and "L." Does to Proceed Anonymously (Attachments: # 1 Affidavit Declaration of "A. Doe"# 2 Affidavit Declaration of "L. Doe"# 3 Affidavit Declaration of Peter D. Roos)(Balloun, J.) (Entered: 12/06/2004)
38 AMENDED COMPLAINT against all defendants, filed by Kristen Day, Sonna L Day, Cody Echols, David C Eichman, Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Karla A Manzel, Kayla L Manzel, Robert R Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Kobach, Kris) (Entered: 12/08/2004)
39 ANSWER to Amended Complaint for Injunctive Relief and Declaratory Relief by A. Doe, J. Doe, Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson, Kathleen Sebelius.(Barker, Clayton) (Entered: 12/21/2004)
40 ANSWER to Amended Complaint for Injunctive and Declaratory Relief by Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, L. Doe.(Balloun, J.) (Entered: 01/07/2005)
41 MOTION to Dismiss for Lack of Jurisdiction over Subject Matter [F.R.C.P. 12(b)(1)] and for Failure to State a Claim [F.R.C.P. 12(b)(6) by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, L. Doe(Balloun, J.) (Entered: 01/21/2005)
42 MEMORANDUM IN SUPPORT of 41 MOTION to Dismiss for Lack of Jurisdiction over Subject Matter [F.R.C.P. 12(b)(1)] and for Failure to State a Claim [F.R.C.P. 12(b)(6) by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, L. Doe(Balloun, J.) (Entered: 01/21/2005)
43 MOTION to Dismiss by Defendants Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson, Kathleen Sebelius(Barker, Clayton) (Entered: 01/21/2005)
44 MEMORANDUM IN SUPPORT of 43 MOTION to Dismiss by Defendants Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson,

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Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson, Kathleen Sebelius (Attachments: # 1 (memo cont. pp. 16−44)# 2 Exhibit 1# 3 Exhibit 2)(Barker, Clayton) (Entered: 01/21/2005)
45 MOTION for Extension of Time as to 27 Scheduling Order Agreed motion by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman(Kobach, Kris) (Entered: 02/09/2005)
46 ORDER granting 45 Motion for Extension of Time to File Response. Plaintiffs shall file their response to Defendants' dispositive motions by 2/21/05. Any reply brief by defendants shall be filed by March 14, 2005. Signed by Judge Richard D. Rogers on 2/10/05. (meh) Modified text on 2/11/2005 (ms). (Entered: 02/10/2005)
47 MOTION for Preliminary Injunction by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman(Kobach, Kris) (Entered: 02/21/2005)
48 MEMORANDUM IN SUPPORT of 47 MOTION for Preliminary Injunction by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman(Kobach, Kris) (Entered: 02/22/2005)
49 RESPONSE by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman re 41 MOTION to Dismiss for Lack of Jurisdiction over Subject Matter [F.R.C.P. 12(b)(1)] and for Failure to State a Claim [F.R.C.P. 12(b)(6), 43 MOTION to Dismiss (Part 1 of 2) (Kobach, Kris) (Entered: 02/22/2005)
50 RESPONSE by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman re 41 MOTION to Dismiss for Lack of Jurisdiction over Subject Matter [F.R.C.P. 12(b)(1)] and for Failure to State a Claim [F.R.C.P. 12(b)(6), 43 MOTION to Dismiss (Part 2 of 2) (Kobach, Kris) (Entered: 02/22/2005)
51 AFFIDAVIT of Karla A. Manzel and Robert R. Manzel re 47 MOTION for Preliminary Injunction by Plaintiffs Robert R Manzel, Karla A Manzel(Kobach, Kris) (Entered: 02/22/2005)
52 AFFIDAVIT of Michelle K. Prahl re 47 MOTION for Preliminary Injunction by Plaintiff Michelle Prahl(Kobach, Kris) (Entered: 02/22/2005)
53 AFFIDAVIT of Kristen M. Day re 47 MOTION for Preliminary Injunction by Plaintiff Kristen Day(Kobach, Kris) (Entered: 02/22/2005)
54 AFFIDAVIT of Cody R. Echols re 47 MOTION for Preliminary Injunction by Plaintiff Cody Echols(Kobach, Kris) (Entered: 02/22/2005)

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55 AFFIDAVIT of David C. Eichman re 47 MOTION for Preliminary Injunction by Plaintiff David C Eichman(Kobach, Kris) (Entered: 02/22/2005)
56 AFFIDAVIT of Brandi P. Gillette re 47 MOTION for Preliminary Injunction by Plaintiff Brandi P Gillette(Kobach, Kris) (Entered: 02/22/2005)
57 AFFIDAVIT of Christopher J. Heath re 47 MOTION for Preliminary Injunction by Plaintiff Christopher J Heath(Kobach, Kris) (Entered: 02/22/2005)
58 AFFIDAVIT of Amy E. Hughes re 47 MOTION for Preliminary Injunction by Plaintiff Amy E Hughes(Kobach, Kris) (Entered: 02/22/2005)
59 AFFIDAVIT of Heidi L. Landherr re 47 MOTION for Preliminary Injunction by Plaintiff Heidi L Landherr(Kobach, Kris) (Entered: 02/22/2005)
60 AFFIDAVIT of Kayla L. Manzel re 47 MOTION for Preliminary Injunction by Plaintiff Kayla L Manzel(Kobach, Kris) (Entered: 02/22/2005)
61 AFFIDAVIT of Jonathan D. Miller re 47 MOTION for Preliminary Injunction by Plaintiff Jonathan D Miller(Kobach, Kris) (Entered: 02/22/2005)
62 AFFIDAVIT of Kyle M. Rohde re 47 MOTION for Preliminary Injunction by Plaintiff Kyle Rohde(Kobach, Kris) (Entered: 02/22/2005)
63 AFFIDAVIT of Jamie L. Whittenburg re 47 MOTION for Preliminary Injunction by Plaintiff Jamie Whittenberg(Kobach, Kris) (Entered: 02/22/2005)
64 AFFIDAVIT of Lindsey D. Whittington re 47 MOTION for Preliminary Injunction by Plaintiff Lindsey D Whittington(Kobach, Kris) (Entered: 02/22/2005)
65 MEMORANDUM AND ORDER granting 11 Motion to Intervene by Kansas League of United Latin American Citizens, Hispanic American Leadership Organization, A. Doe, J. Doe, and L. Doe. Further, denying 13 Motion for Protective Order allowing A. Doe, J. Doe, and L. Doe to proceed anonymously. The five intervenors shall file an amended answer to plaintiff's amended complaint by 03/04/05. The caption and body of their amended answer shall include the true names of all the intervenors. Signed by Magistrate Judge James P. O'Hara on 02/24/05. (mg) (Entered: 02/24/2005)
66 Minute Entry for proceedings held before Judge Richard D. Rogers : In Chambers Conference held on 3/2/2005. Briefing deadline extended to 3/21/05. Oral Arguments will be heard on 4/25/05 at 9:30 a.m. (Court Reporter Simons.) (meh) (Entered: 03/02/2005)
67 NOTICE OF SERVICE by Brandi P Gillette, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman of Interrogatories to Intervenors (Attachments: # 1 Interrogatories to Hispanic American Leadership Organization, Kansas State Chapter# 2 Interrogatories to Kansas League of United Latin American Citizens)(Kobach, Kris) (Entered: 03/04/2005)
68 OBJECTIONS to and MOTION for Reconsideration of Magistrate O'Hara's 65 Order Denying Right to Proceed Anonymously by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, J. Doe, and L. Doe(Balloun, J.) Modified text on 3/7/2005 (ms). (Entered: 03/04/2005)
69 MEMORANDUM IN SUPPORT of 68 OBJECTIONS AND MOTION for Reconsideration of 65 Order Denying Right to Proceed Anonymously by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, J. Doe, and L. Doe(Balloun, J.) Modified text on 3/7/2005 (ms). (Entered: 03/04/2005)
70 Amended ANSWER to Amended Complaint by Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization.(Balloun, J.) (Entered: 03/04/2005)

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71 NOTICE OF SERVICE by Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman of Interrogatories &Request for Production of Documents to Def Gov. Kathleen Sebelius (Attachments: # 1 Interrogatories to Def Gov. Kathleen Sebelius# 2 Request for Production of Docs to Def Gov. Kathleen Sebelius)(Kobach, Kris) (Entered: 03/04/2005)
72 ORDER denying as moot 47 , plaintiffs' Motion for Preliminary Injunction. A final hearing on this matter is scheduled for 4/25/05 at 9:30 a.m. The parties shall have until 3/21/05 to file any briefs that need to be filed concerning the pending motions to dismiss. Signed by Judge Richard D. Rogers on 3/10/05. (ms) (Entered: 03/10/2005)
73 REPLY to Response to Motion by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, J. Doe, L. Doe re: 43 MOTION to Dismiss (Balloun, J.) (Entered: 03/21/2005)
74 REPLY to Response to Motion by Defendants Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson, Kathleen Sebelius re: 43 MOTION to Dismiss (Attachments: # 1 # 2)(Barker, Clayton) (Entered: 03/21/2005)
75 NOTICE of Hearing: Oral Arguments set for 4/25/2005 at 09:30 AM before Senior Judge Richard D. Rogers. (meh) (Entered: 03/30/2005)
76 CERTIFICATE OF SERVICE by Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization re 67 Notice of Service,, of Answers to Plaintiffs' Interrogatories to Intervenor−Defendants HALO (KSU) and Kansas LULAC. (Balloun, J.) (Entered: 04/01/2005)
77 MOTION to Stay Discovery and/or For Protective Order Pending A Decision On Their Motion To Dismiss by Defendants Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson, Kathleen Sebelius(Leitch, Michael) (Entered: 04/04/2005)
78 MEMORANDUM IN SUPPORT of 77 MOTION to Stay Discovery and/or For Protective Order Pending A Decision On Their Motion To Dismiss by Defendants Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson, Kathleen Sebelius (Attachments: # 1 Exhibit Letter to Plaintiffs' counsel objecting to discovery)(Leitch, Michael) (Entered: 04/04/2005)
79 RESPONSE by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman re 77 MOTION to Stay Discovery and/or For Protective Order Pending A Decision On Their Motion To Dismiss (Memorandum) (Kobach, Kris) (Entered: 04/19/2005)
80 CERTIFICATE OF SERVICE by Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman. (Attachments: # 1 Wynne Subpoena# 2 Nielsen Subpoena# 3 Moeder Subpoena)(Kobach, Kris) (Entered: 04/19/2005)
81 MOTION to Dismiss Party Intervenor Does 'A', 'J' and 'L', Kansas League of United Latin American Citizens, and Hispanic American Leadership Organization −Kansas State Chapter by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes,

04/20/2005 04/21/2005 04/21/2005 04/22/2005 05/03/2005
05/03/2005
05/06/2005
05/10/2005 05/10/2005

Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman(Kobach, Kris) (Entered: 04/19/2005)
82 ORDER denying 68 Motion for Reconsideration. IT IS THEREFORE ORDERED that intervenor's objections to and motion for reconsideration of Magistrate O'Hara's order of 2/24/05 be hereby denied . Signed by Judge Richard D. Rogers on 4/20/05. (meh) (Entered: 04/20/2005)
83 Minute Entry for proceedings held before Judge Richard D. Rogers : Telephone Status Conference held on 4/21/2005. Oral argument continued to 5/10/05 at 9:30 a.m. In Camera production of documents by intervenor parties to be completed by 4/29/05.(Court Reporter Simons.) (meh) (Entered: 04/21/2005)
84 NOTICE of Hearing: In Court Hearing (Oral Argument) set for 5/10/2005 at 09:30 AM before Senior Judge Richard D. Rogers. (meh) (Entered: 04/21/2005)
85 ORDER granting 77 Defendants Motion to Stay Discovery and/or for Protective Order pending a decision on their motion to dismiss. The discovery submitted to defendant Governor Sebelius by plaintiffs shall be stayed pending further order of the court. Signed by Judge Richard D. Rogers on 4/22/05. (meh) (Entered: 04/22/2005)
86 SUPPLEMENTARY MEMORANDUM IN SUPPORT of 81 MOTION to Dismiss Party Intervenor Does 'A', 'J' and 'L', Kansas League of United Latin American Citizens, and Hispanic American Leadership Organization −Kansas State Chapter by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman (Attachments: # 1 Motion for Leave to Submit Supplementary Memorandum)(Kobach, Kris) Modified text on 5/5/2005 (ms). (Entered: 05/03/2005)
87 MOTION for Leave to file a supplementary memorandum in support of motion to dismiss intervenor−defendants by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman. E−filed again as a motion at the direction of chambers.(daw) (Entered: 05/04/2005)
88 SUPPLEMENTARY Memorandum in Response to Depositions of Wm Wynne, Monty Nielsen, Lawrence Moeder by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman. (Kobach, Kris) Modified text on 5/10/2005 (ms). (Entered: 05/06/2005)
89 ORDER granting 87 Motion by plaintiffs for Leave to File a supplementary memorandum in support of the motion to dismiss intervenor−defendants . Signed by Judge Richard D. Rogers on 5/8/05. (meh) (Entered: 05/10/2005)
90 Minute Entry for proceedings held before Judge Richard D. Rogers: Motion Hearing held on 5/10/2005 re 81 MOTION to Dismiss Party Intervenor Does 'A', 'J' and 'L', Kansas League of United Latin American Citizens, and Hispanic American Leadership Organization −Kansas State Chapter filed by Kristen Day, Sonna L Day, Cody Echols, David C Eichman, Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, 41

05/17/2005 05/20/2005 05/20/2005 05/25/2005 05/26/2005 05/27/2005
05/27/2005 06/06/2005

MOTION to Dismiss for Lack of Jurisdiction over Subject Matter [F.R.C.P. 12(b)(1)] and for Failure to State a Claim [F.R.C.P. 12(b)(6) filed by A. Doe, Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, L. Doe, and 43 MOTION to Dismiss filed by Kathleen Sebelius, William R Docking, Richard Bond, Donna L Shank, Janice DeBauge, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, and Lehymann F Robinson. Defendants shall have 10 additional days from 5/10/05 to file an additional brief on supplemental memorandum re: depositions. Intervenor defendants shall have 17 days from 5/10/05 to submit an additional brief on plaintiffs motion to dismiss intervenor defendants. (Court Reporter Simons.) (meh) Modified text on 5/11/2005 (ms). (Entered: 05/10/2005)
91 TRANSCRIPT of Oral Argument held May 10, 2005 before Judge Richard D. Rogers, 206 pgs., Court Reporter: Amy Simons. (Nora Lyon &Associates) Modified text and changed restriction on 6/23/2005 (ms). (Entered: 05/17/2005)
92 RESPONSE to 88 Plaintiffs' Supplemental Memorandum Regarding Depositions by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, J. Doe, and L. Doe. (Balloun, J.) Modified to create link on 5/23/2005 (ms). (Entered: 05/20/2005)
93 RESPONSE to 88 Plaintiffs' Supplemental Memorandum Regarding Depositions by Defendants Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson, and Kathleen Sebelius. (Barker, Clayton) Modified text on 5/23/2005 (ms). (Entered: 05/20/2005)
94 MOTION for Leave to file Reply Memorandum by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman(Kobach, Kris) (Entered: 05/25/2005)
95 MEMORANDUM in Opposition by Defendants Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson, Kathleen Sebelius re 94 MOTION for Leave to file Reply Memorandum Regarding Defendants' Responses to Plaintiffs Supplemental Memorandum (Leitch, Michael) (Entered: 05/26/2005)
96 REPLY to Response to Motion by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman re: 94 MOTION for Leave to file Reply Memorandum, 41 MOTION to Dismiss for Lack of Jurisdiction over Subject Matter [F.R.C.P. 12(b)(1)] and for Failure to State a Claim [F.R.C.P. 12(b)(6), 43 MOTION to Dismiss (Plaintiffs' Reply to Defendants' and Intervenors' Responses to Plaintiffs' Supplementary Memorandum and Oral Arguments) (Kobach, Kris) (Entered: 05/27/2005)
97 RESPONSE by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, J. Doe, L. Doe re 81 MOTION to Dismiss Party Intervenor Does 'A', 'J' and 'L', Kansas League of United Latin American Citizens, and Hispanic American Leadership Organization −Kansas State Chapter (Attachments: # 1 Exhibit A − Declaration of Michael Martinez; # 2 Exhibit B − Declaration of Maria Theresa Martinez−Ortiz)(Balloun, J.) (Entered: 05/27/2005)
98 ORDER: The Court directs the parties to file briefs within ten (10) days of the date of this order on the issue of plantiffs' standing for their equal protection claim. The parties shall then have five (5) days after the filing of the initial brief to file a responsive brief. The court hopes to have an order deciding the issues of this case shortly after the receipt of these briefs. Signed by Judge Richard D. Rogers on 6/6/05.

06/06/2005 06/16/2005
06/16/2005 06/17/2005 06/17/2005 06/17/2005
06/17/2005 06/17/2005
06/22/2005 06/24/2005 06/24/2005 06/24/2005

(meh) (Entered: 06/06/2005)
99 ORDER granting 94 Plaintiffs' Motion for Leave to submit a reply memorandum regarding defendants' responses to plaintiffs' supplemental memorandum. Signed by Judge Richard D. Rogers on 6/6/05. (meh) (Entered: 06/06/2005)
100 RESPONSE by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman re 98 Order, for Supplementary Brief regarding Plaintiffs' Standing for their Equal Protection Claim. (Kobach, Kris) (Entered: 06/16/2005)
101 MOTION for extension of time (One−day) by Defendants Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson, Kathleen Sebelius(Leitch, Michael) (Entered: 06/16/2005)
102 MOTION for Extension of Time to File Response as to 98 Order, One−Day Late by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, J. Doe, L. Doe (Attachments: # 1 Exhibit A − Memorandum Regarding Equal Protection Standing)(Balloun, J.) (Entered: 06/17/2005)
103 RESPONSE by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, J. Doe, L. Doe re 98 Order, Memorandum Regarding Equal Protection Standing (Balloun, J.) (Entered: 06/17/2005)
104 MOTION for Leave to file Clarification and Response to Plaintiffs' Reply Memorandum Regarding Oral Argument (Doc. 96) by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, J. Doe, L. Doe (Attachments: # 1 Exhibit Clarification and Response to Plaintiffs' Reply Memorandum Regarding Oral Argument)(Balloun, J.) (Entered: 06/17/2005)
105 MOTION to Clarify and Response to Plaintiffs' Reply Memorandum Regarding Oral Argument (Doc. 96) by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, J. Doe, L. Doe(Balloun, J.) (Entered: 06/17/2005)
106 SUPPLEMENT BRIEF OF DEFENDANTS REGARDING PLAINTIFFS' STANDING TO ALLEGE EQUAL PROTECTION CLAIMS by Defendants Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson, Kathleen Sebelius, Reginald L Robinson, Robert Hemenway, Jon Wefald, Kay Schallenkamp. (Barker, Clayton) (Entered: 06/17/2005)
107 ORDER granting 101 Defendants' motion for extension of time and granting 102 Intervenors' motion for extension of time to file a response. The deadline for reply briefs on the issue of plaintiffs' standing to raise their equal protection claim is 6/24/05. Intervenors' 104 motion for leave to file clarification and response 105 is granted. Signed by Judge Richard D. Rogers on 6/22/05. (ms) (Entered: 06/22/2005)
108 RESPONSE by Intervenor Defendants Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization, A. Doe, J. Doe, L. Doe re 98 Order, Regarding Equal Protection Standing (Balloun, J.) (Entered: 06/24/2005)
109 Supplemental MOTION to Dismiss (Response per Court Order) by Defendants Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson, Kathleen Sebelius(Barker, Clayton) (Entered: 06/24/2005)
110 RESPONSE by Plaintiffs Brandi P Gillette, Christopher J Heath, Amy E Hughes, Jeraldyn L Hughes, Kenneth H Hughes, Nicole C Keene, Heidi L Landherr, Roberta

07/05/2005
07/06/2005
07/28/2005 08/01/2005 08/01/2005 08/02/2005 08/12/2005 08/12/2005 08/12/2005 08/15/2005 01/08/2008
03/25/2008 06/30/2008 07/28/2008
07/30/2008

K MacGregor, Robert R Manzel, Karla A Manzel, Kristen Day, Kayla L Manzel, Jonathan D Miller, Mary L Miller, Lashonda M Montgomery, Michelle Prahl, Kyle Rohde, Marcy R Rutan, Joshua B Sheade, Jamie Whittenberg, Lindsey D Whittington, Sonna L Day, Cody Echols, David C Eichman re 98 Order, (to Plaintiffs' and Intervenors' briefs regarding standing to bring equal protection claim). (Kobach, Kris) (Entered: 06/24/2005)
111 ORDER granting 41 Motion to Dismiss for Lack of Jurisdiction, granting 43 Motion to Dismiss, denying 81 Motion to Dismiss Party. IT IS THEREFORE ORDERED that defendants' and intervenors' motions to dismiss, which the court has converted to motions for summary judgment, be hereby granted. The court hereby dismisses Counts 1 and 3 through 7 due to plaintiffs' lack of standing. The court further dismisses count 2 because plantiffs have no private right of action under 8 USC 1623. Finally, the court also dismisses Governor Kathleen Sebelius as a party to this action. IT IS FURTHER ORDERED that plantiffs' motion to dismiss intervenor−defendants is denied. Signed by Judge Richard D. Rogers on 7/5/05. (meh) (Entered: 07/05/2005)
112 JUDGMENT: IT IS ORDERED AND ADJUDGED Pursuant to the Order filed on July 5, 2005 that the plaintiffs' in this case take nothing of defendants' and intervenors', and the action is dismissed on the merits. Signed by deputy clerk on 7/6/05. (meh) (Entered: 07/06/2005)
FILING FEE PAID: in the amount of $250.00, receipt number 049144 (sal) FILED IN ERROR. REFILED IN 05−4085 on 7/29/2005 (ms). (Entered: 07/28/2005)
113 NOTICE OF APPEAL as to 111 Memorandum and Order and 112 Judgment by Plaintiffs (ms) (Entered: 08/02/2005)
APPEAL FEE PAID in the amount of $255, Receipt No. 049159, re Notice of Appeal 113 filed by plaintiffs (THIS IS A TEXT ONLY ENTRY−NO DOCUMENT IS ASSOCIATED WITH THIS TRANSACTION) (ms) (Entered: 08/02/2005)
114 PRELIMINARY RECORD ON APPEAL transmitted to 10CCA re 113 Notice of Appeal (ms) Additional attachment(s) added on 8/2/2005 (ms, ). (Entered: 08/02/2005)
115 APPEAL DOCKETED in 10CCA on 8/10/05 and assigned Appeal No. 05−3309 re 113 Notice of Appeal (ms) (Entered: 08/15/2005)
116 RECEIPT FROM 10CCA of preliminary record on appeal, re 113 Notice of Appeal, Appeal No. 05−3309 (ms) (Entered: 08/15/2005)
117 TRANSCRIPT ORDER FORM: Transcript Already on File filed by plaintiffs re 113 Notice of Appeal (ms) (Entered: 08/15/2005)
118 LETTER TO 10CCA stating record is complete re 113 Notice of Appeal (Appeal No. 05−3309) (ms) (Entered: 08/15/2005)
119 APPEAL MANDATE from 10CCA: Because the Plaintiffs lack standing to bring either of their claims, jurisdiction is lacking to hear them. Therefore, the dismissal of both claims is affirmed as to 113 Notice of Appeal. (Appeal No. 05−3309) (Attachments: # 1 Tenth Circuit Order) (ms) (Entered: 01/16/2008)
120 Letter from 10CCA advising that a petition for writ of certiorari was filed 3/17/08, re 113 Notice of Appeal and assigned Supreme Court No. 07−1193 (Appeal No. 05−3309) (ms) (Entered: 03/31/2008)
121 Letter from 10CCA advising that the petition for writ of certiorari was denied, re 113 Notice of Appeal (Appeal No. 05−3309) (ms) (Entered: 07/02/2008)
122 BILL OF COSTS by Richard Bond, Donna L Shank, Janice DeBauge, William R Docking, Lewis L Ferguson, Frank Gaines, Nelson Galle, James Grier, III, Deryl W Wynn, Cindy Derritt, Monty Nielson, Lehymann F Robinson. (Delaney, Michael) (Entered: 07/28/2008)
123 BILL OF COSTS by Kansas League of United Latin American Citizens, The Hispanic American Leadership Organization. (Balloun, J.) (Entered: 07/30/2008)

01/28/2009 01/28/2009

124 Costs Taxed in the amount of $2,520.90 against Plaintiff for State Defendants, re Bill of Costs 122 (ms) (Entered: 01/28/2009)
125 Costs Taxed in the amount of $212.76 against Plaintiff for Intervenor Defendants, re Bill of Costs 123 (ms) (Entered: 01/28/2009)

 
 500 F.3d 1127 (2007)
Kristen DAY; Sonna L. Day; Cody Echols; David C. Eichman; Brandi P. Gillette; Christopher J. Heath; Amy E. Hughes; Jeraldyn L. Hughes; Kenneth H. Hughes; Nicole C.
Keene; Heidi L. Landherr; Roberta K. MacGregor; Robert R. Manzel; Karla A. Manzel; Kayla L. Manzel; Jonathan D. Miller; Mary L. Miller; Lashonda M. Montgomery; Michelle Prahl; Kyle Rohde; Marcy R. Rutan; Joshua B. Sheade; Jamie Whittenberg; Lindsey D.
Whittington, Plaintiffs-Appellants, v.
Richard BOND, Chairman of the Kansas Board of Regents; Donna L. Shank; Janice Debauge; William R. Docking; Lewis L. Ferguson; Frank Gaines; Nelson Galle; James
Grier, III; Deryl W. Wynn, Members of the Kansas Board of Regents in their official capacities; Cindy Derritt, Registrar of the University of Kansas in her official capacity; Monty Nielson, Registrar of Kansas State University in his official capacity; Lehymann F. Robinson, Registrar of Emporia State University in his official capacity, Defendants-
Appellees, Kansas League of United Latin American Citizens; The Hispanic American Leadership Organization, Kansas State Chapter; A. Doe; J. Doe; L. Doe, Defendants-Intervenors-
Appellees, Kathleen Sebelius, personally and in her official capacity as Governor of Kansas,
Defendant.
No. 05-3309.
United States Court of Appeals, Tenth Circuit.
August 30, 2007.
11289 *1128 *1129 Kris W. Kobach, University of Missouri-Kansas City School of Law, Kansas City, MO (Michael M. Hethmon, Federation for American Immigration Reform, Washington, DC, with him on the briefs), for PlaintiffsAppellants.
David Davies, Deputy Attorney General; William Scott Hesse, Assistant Attorney General, State of Kansas, Topeka, KS; Michael F. Delaney (Clayton L. Barker and Michael C. Leitch, with him on the briefs), Spencer, Fane, Britt & Browne, Kansas City, MO, for Defendants-Appellees.
J. Eugene Balloun, Shook, Hardy & Bacon L.L.P., Overland Park, KS; Lee Gelernt and Lucas Guttentag, American Civil Liberties Union Foundation, New York, NY; Linton Joaquin and Tanya Broder, National Immigration Law Center, Los Angeles, CA; Peter D. Roos, Multicultural Education, Training and Advocacy, Inc., Oakland, CA, for Defendants-Intervenors-Appellees.
William Perry Pendley and Ronald Walter Opsahl, Mountain States Legal Foundation, Lakewood, CO, filed an amicus curiae brief in support of Plaintiffs-Appellants on behalf of Amici Curiae the Honorable Alan K. Simpson and the Honorable Lamar S. Smith.
Daniel J. Popeo and Richard A. Samp, Washington Legal Foundation, Washington, DC, filed an amicus curiae 1130 brief in support of Plaintiffs-Appellants on behalf *1130 of Amici Curiae Washington Legal Foundation, Thomas J.
Brennan, Zan Brennan, Brigette Brennan, and Allied Educational Foundation.
David C. Cunningham, Topeka, KS, filed an amicus curiae brief in support of Defendants-Intervenors-Appellees on behalf of Amicus Curiae Kansas Association of School Board, Inc.
Before LUCERO, Circuit Judge, and McWILLIAMS and EBEL, Senior Circuit Judges.

EBEL, Senior Circuit Judge.
Kristen Day, a group of her fellow students at state universities in Kansas, and several of their parents (collectively, the "Plaintiffs") seek to overturn a provision of Kansas law that permits certain illegal aliens to qualify for in-state tuition rates. Day and the other Plaintiffs contend that Kansas Statutes § 76-731a unlawfully discriminates against U.S. citizens who are not Kansas residents in violation of the Equal Protection Clause of the Fourteenth Amendment and is preempted by 8 U.S.C. § 1623, a provision of federal immigration law. The district court below held that the Plaintiffs lacked standing to bring some of their claims and had no cause of action to bring others. Accordingly, it granted summary judgment against them. The Plaintiffs now appeal. We conclude that the Plaintiffs lack standing to bring their equal protection claim and that they lack a cause of action for their remaining statutory preemption claim; thus, we AFFIRM.
BACKGROUND
On May 20, 2004, Kansas Governor Kathleen Sebelius signed into law Kansas House Bill 2145, effective July 1, 2004. H.B. 2145, now codified at K.S.A. § 76-731a, provided that certain nonresidents were deemed residents for tuition purposes.[1] Pursuant to its terms, at least six Kansas students who were undocumented, illegal aliens and who did not otherwise qualify for Kansas resident tuition, paid resident tuition to attend the University of 1131 Kansas ("KU"), Kansas State University *1131 ("KSU"), and Emporia State University ("ESU") in the 2004-05 school year.
The student Plaintiffs, who similarly were not legal residents of Kansas and did not qualify for resident tuition under § 76-731a or any other Kansas statute, filed suit to prevent implementation of § 76-731a. In a seven-count complaint, they alleged that § 76-731a violates various provisions of federal immigration law and the comprehensive regulatory scheme governing immigration; that it is preempted by Congress's occupation of the immigration field; that it impermissibly infringes upon powers reserved to the federal government; and that it violates the Equal Protection Clause by discriminating in favor of illegal aliens, as against nonresident U.S. citizens, in the provision of educational benefits. Of relevance for purposes of the issues appealed are Counts 2 and 7 of the Plaintiffs' Amended Complaint. Count 2 asserted that "implementation of [§ 76-731a] by Kansas postsecondary educational institutions under the direction of the Defendants violates . . . 8 U.S.C. § 1623."[2] Count 7 alleged that implementation of § 76-731a would violate the Plaintiffs' equal protection rights "by denying [the] Plaintiffs eligibility to apply for and receive similar postsecondary educational benefits on an equal basis." The Defendants to the suit included Governor Sebelius,[3] the members of the Board of Regents, and the registrars of KU, KSU, and ESU (collectively, the "Defendants"). In addition, the Hispanic American Leadership Organization, Kansas State Chapter, and the Kansas League of United Latin American Citizens (the "Intervenors") were allowed to intervene as defendants.
The district court dismissed all of the Plaintiffs' claims on motions by the Defendants and Intervenors, which the court converted to motions for summary judgment. The court held the Plaintiffs lacked standing to bring their several claims that § 76-731a was preempted by provisions of federal law, including 8 U.S.C. § 1623. To the extent that the Plaintiffs sought to enforce substantive rights conferred by 8 U.S.C. § 1623, the district court found they had standing but dismissed this claim for lack of a private right of action to enforce the statute's terms. The court then dismissed the Plaintiffs' equal protection claim for lack of standing. This appeal timely followed.
DISCUSSION
We review de novo a district court's order granting summary judgment, applying the same standard employed by the district court. Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir.2004). Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R.CIV.P. 56(c). "When applying this standard, we view the evidence and draw

1132 reasonable *1132 inferences therefrom in the light most favorable to the nonmoving party." Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999).

We likewise review de novo "questions of subject matter jurisdiction, including whether a plaintiff has standing to sue." Schutz v. Thorne, 415 F.3d 1128, 1132 (10th Cir.2005), cert. denied, 546 U.S. 1174, 126 S.Ct. 1340, 164 L.Ed.2d 55 (2006) (quoting Wilson v. Glenwood Intermountain Props., 98 F.3d 590, 593 (10th Cir. 1996)). To prevail at summary judgment on standing grounds, the defendant must show that the record is devoid of evidence raising a genuine issue of material fact that would support the plaintiff's ultimate burden of proving standing. See Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1280 (10th Cir.2002) (requiring that a party prevailing at summary judgment on standing grounds "establish that there exists no genuine issue of material fact as to justiciability"); see also Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 329, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

The elements of the Article III standing inquiry are well-known. A plaintiff invoking the jurisdiction of a federal court bears the burden of showing:

(1) injury in fact, by which we mean an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, by which we mean that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.

Ne. Fla. Chapter of Assoc. Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (quotations, citations, and punctuation omitted). "[E]ach [of these] element[s] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "In response to a summary judgment motion," the plaintiff cannot "rest on . . . `mere allegations,' but must `set forth' by affidavit or other evidence `specific facts'" regarding the elements of standing. Id. (quoting FED.R.CIV.P. 56(e)).

I. Equal Protection Claim (Count 7)

The Plaintiffs make four arguments that the operation of § 76-731a violates their rights under the Equal Protection Clause of the Fourteenth Amendment and thereby created sufficient injury to support constitutional standing. In their Amended Complaint, their primary contended injury was the fiscal differential between nonresident tuition rates that the Plaintiffs paid and the resident tuition rate paid by the illegal aliens qualifying under § 76-731a. More specifically on appeal, the Plaintiffs articulate their injuries as follows:

(1) The denial of equal treatment, in and of itself, caused by barriers in K.S.A. 76-731a making it impossible for nonresident U.S. citizens to obtain the benefits extended by the statute.

(2) The increased tuition faced by [the Plaintiffs], as the burden of subsidizing illegal alien beneficiaries of K.S.A. 76-731a is passed along to other students through tuition hikes.

(3) The injury that results from competition for scarce tuition resources.

1133

*1133 (4) The extra tuition paid by nonresident [Plaintiffs] during the 2004-2005 academic year over the in-state tuition paid by nonresident illegal aliens, as a consequence of the discriminatory operation of K.S.A. 76-731a.

Each of these four formulations of the Plaintiffs' claimed equal protection injuries fails to satisfy the requisite standing criteria. As to the second and third of these alleged injuries, the Plaintiffs have not demonstrated that they have suffered a concrete and nonspeculative injury based on the discriminatory treatment provided by § 76-731a. As to the first and fourth of these alleged injuries, the Plaintiffs cannot show that their asserted injury

was proximately caused by § 76-731a, nor that any injury could be redressed by a decision in their favor. We must, therefore, dismiss their equal protection claim for lack of standing.
A. Injury
Injury in fact that supports standing to bring a claim under the Equal Protection Clause need not be economic in nature. Indeed, it is often the case that "the right asserted . . . is the right to receive `benefits distributed according to classifications which do not without sufficient justification differentiate among covered applicants solely on the basis of [impermissible criteria],' and not a substantive right to any particular amount of benefits." Heckler v. Mathews, 465 U.S. 728, 737, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 647, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975)) (citation and alterations omitted); accord Cunico v. Pueblo Sch. Dist. No. 60, 917 F.2d 431, 441 (10th Cir.1990). In such a case, injury in fact is simply "the existence of a government-erected 'barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group.'" Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 493 (10th Cir.1998) (quoting City of Jacksonville, 508 U.S. at 666, 113 S.Ct. 2297). A plaintiff need not show that he or she would necessarily have received the benefit but for the operation of the policy; rather, "the injury is the imposition of the barrier itself." Id. However, the plaintiff still must show that the challenged discriminatory criterion was, in fact, the barrier that disadvantaged his or her ability to obtain benefits.[4]See id.
Neither the Plaintiffs' second nor third theories of injury under their equal protection claim is sufficiently concrete and nonspeculative to support standing. The second theory of injury, that the Plaintiffs shoulder the financial burden of increased tuition by subsidizing illegal aliens, requires a showing of a causal connection between the tuition subsidy for illegal aliens and nonresident tuition. Yet, other than the Plaintiffs' citations to news and opinion articles containing commonplace and nonspecific observations that nonresident tuition dollars often subsidize the cost of residents' education at public universities nationwide, the record before us is devoid of evidence of any causal relationship between the tuition cost imposed on Kansas' public universities by § 76-731a and nonresident tuition rates imposed on the Plaintiffs. Accordingly, the Plaintiffs have failed to carry their burden of demonstrating 1134 this claimed injury is "not conjectural or hypothetical." *1134 Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (quotation omitted).
Similarly, the third theory of injury 0907 "competition for scarce tuition resources" on an unequal footing 0907 requires some proof of the existence of competition between the Plaintiffs and illegal aliens over a limited pool of funds employed for tuition subsidies. However, our statement in Buchwald that "the injury is the imposition of the barrier itself" in cases of competition on an uneven field, 159 F.3d at 493, does not grant license to assert injury upon an allegation of competition that itself may be merely hypothetical, see Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Here, the Plaintiffs' failure to adduce any evidence in support of their theory of injury would force us into speculating on the inner workings of university and state budgetary mechanisms to discern a genuine issue of material fact over the existence vel non of this injury. The record is devoid of any evidence that Kansas public universities' budgets are a zero-sum game or that the higher nonresident tuition rates that illegal aliens would pay in the absence of § 76-731a would even be available for redistribution to tuition reductions or educational services benefitting nonresident students like the Plaintiffs. Thus, the Plaintiffs have provided no basis upon which we may conclude that this third claimed injury is anything other than speculation.
B. Causation and Redressability
The Plaintiffs' first and fourth theories of injury under their equal protection claim are sufficiently concrete, particularized, and nonspeculative to support injury. They nevertheless founder on the Plaintiffs' inability to establish either injuries caused by the allegedly unlawful discrimination the Plaintiffs decry or that any such injuries would be redressed by a favorable decision from this court. As we have consistently held, "[d]iscrimination cannot be the cause of injury to an applicant who could not have obtained the benefit even in the absence of the discrimination," and such an applicant lacks the requisite personal stake in the outcome because he would still not qualify for the benefit following a decision in his favor.[5]Wilson, 98 F.3d at 594; see Fuller v. Norton, 86 F.3d 1016, 1027 (10th Cir.1996).

In Wilson, we addressed a Fair Housing Act challenge to, inter alia, several landlords' practice of segregating by gender housing reserved for students of Brigham Young University (BYU). 98 F.3d at 592. Because suit was brought by nonstudents, however, we held they lacked standing under City of Jacksonville. We determined that

1135

a person who fails to satisfy lawful, nondiscriminatory requirements or qualifications for the benefit lacks standing to raise claims of discrimination in the denial of the benefit. The discrimination does not deprive the person of the ability to compete because he or she is disqualified from competing for other, legitimate reasons. A favorable decision on *1135 the discrimination claim could not redress the injury because the person would still be disqualified from competing.

Id. at 593. The Wilson plaintiffs, who were nonstudents, could not show causation because "the ownership and/or operation of gender-segregated apartments reserved solely for BYU students could not have caused [the] plaintiffs to lose the opportunity to rent the apartments," and a decision in their favor would not redress their claimed injury "because they would still not be qualified to rent apartments reserved for BYU students." Id. at 594.

While it is indisputable that standing to assert an equal protection claim does not require that a plaintiff show that he would have obtained the benefit but for the discriminatory effects of a government-erected barrier, the plaintiff must nevertheless demonstrate that he could have obtained the benefit. See City of Jacksonville, 508 U.S. at 666, 113 S.Ct. 2297. If, as in Wilson, a plaintiff cannot do so because nondiscriminatory classifications would disqualify him from eligibility for the benefit even absent the challenged discriminatory classification, he cannot show injury caused by the discrimination, nor can he show injury that would be redressed by a decision in his favor; he therefore lacks standing to bring his claim. 98 F.3d at 593-94. Similarly, in a case concerning the denial of an equal opportunity to compete, such as Schutz, City of Jacksonville, or Buchwald, the plaintiff must show he is not disqualified from competing because of nondiscriminatory eligibility criteria and that the allegedly discriminatory eligibility criteria impaired his opportunity successfully to compete for the benefits offered. See Schutz, 415 F.3d at 1133-34; Buchwald, 159 F.3d at 493.

None of these Plaintiffs would be eligible to pay resident tuition under § 76-731a even if the allegedly discriminatory test of § 76-731a(c)(2) favoring illegal aliens were stricken, because none attended Kansas high schools for at least three years and either graduated from a Kansas high school or received a Kansas GED certificate. K.S.A. § 76-731a(b)(2)(B), (C). This is a nondiscriminatory prerequisite for benefits under § 76-731a, regardless of the citizenship of the students. The Plaintiffs' first and fourth theories of injury, under which they seek equal treatment with illegal aliens under § 76-731a, were therefore not caused by the statute's allegedly discriminatory operation, nor would these injuries be redressed by a decision striking down the discriminatory classification embedded in its provisions. See Wilson, 98 F.3d at 593-94. The Plaintiffs thus do not have standing to challenge § 76-731a on equal protection grounds, and we affirm the dismissal of their claim on that basis.

II. Preemption Claim (Count 2)

In addition to arguing that K.S.A. § 76-731a violates the Equal Protection Clause by discriminating on the basis of 1136 alienage, the Plaintiffs contend that § 76-731a is preempted by 8 U.S.C. § 1623.[6] The district *1136 court
likewise dismissed this claim for lack of standing. Although the Plaintiffs did not initially contest the district court's ruling on appeal by addressing their standing to assert a preemption claim, we exercise our discretion to consider their arguments nonetheless. The only form of injury that the Plaintiffs assert in support of their standing to make this preemption claim is the invasion of a putative statutory right conferred on them by § 1623. However, we conclude that § 1623 does not vest any federal right in nonresident citizen students like the Plaintiffs to assert preemption. We therefore conclude that the Plaintiffs cannot claim such a right as the basis of an injury supporting standing. Thus, they lack standing to pursue their preemption claim, and we affirm its dismissal.

The Plaintiffs have disclaimed on appeal any injury other than an invasion of the legal right that they assert § 1623 has vested in them and any remedy other than the presumptive annulment of § 76-731a.[7] It is long settled in the law that "[t]he actual or threatened injury required by Art. III may exist solely by virtue of `statutes creating legal rights, the invasion of which creates standing. . . .'" Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (quoting Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); alteration in original). Yet absent a statutory right vested in these particular plaintiffs by virtue of §

1623, the Plaintiffs would retain only a generalized interest in the Defendants' compliance with the law. See Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130.
To have standing, then, the Plaintiffs must possess a private, individualized right conferred by § 1623, and the existence vel non of a private right under § 1623 becomes the critical inquiry. That question is as yet undecided in this or any other circuit. However, our precedent suggests that we may be required to defer to the Plaintiffs' assertion that such a right exists for purposes of evaluating standing, so as not to confuse standing with the merits. Accordingly, we first consider whether, at this stage of the litigation, we must accept, for standing purposes, the Plaintiffs' legal assertion that they have a private right protected by § 1623.
A. Whether we are required to accept the Plaintiffs' assertion of a private, enforceable right under § 1623 for purposes of our review of standing.
We addressed the propriety of testing the merits of plaintiffs' claims for purposes of evaluating standing in 1137 Initiative and *1137 Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir.2006) (en banc), cert. denied, ___
U.S. ___, 127 S.Ct. 1254, 167 L.Ed.2d 145 (2007). In Walker, groups desiring to mount a ballot initiative alleged that a Utah state constitutional provision imposing a supermajority voting requirement for initiatives concerning wildlife management violated their First Amendment right of free speech. Id. at 1085. Specifically, the plaintiffs alleged that the constitutional provision had "a chilling effect on [the plaintiffs'] speech in support of wildlife initiatives in Utah." Id. at 1088. The plaintiffs contended that this alleged First Amendment injury also established their standing to assert that claim. On a motion to dismiss, the defendants argued the plaintiffs were not injured by the state constitutional provision and thus lacked standing because their claim on the merits was incorrect. Specifically, the defendants argued "that the First Amendment does not guarantee political success or imply a right to be heard and supported, and that the supermajority requirement place[d] no direct restriction on the speech of anyone and [left] the [p]laintiffs free to engage in full and robust political speech." Id. at 1092.
We declined to consider these merits arguments in the context of our standing review, not because they were necessarily incorrect, but because the Walker defendants had "confuse[d] standing with the merits." Id. "For purposes of standing," we noted, "the question cannot be whether the Constitution, properly interpreted, extends protection to the plaintiff's asserted right or interest," because that would be a determination of the merits of the plaintiffs' claim under the guise of an evaluation of their standing. Id. The merits issue was whether the First Amendment restricted states' abilities to impose supermajority requirements for certain initiatives. The answer to that question would necessarily resolve the standing issue, since the plaintiffs alleged an interest in pursuing an initiative covered by the challenged supermajority requirement. If the First Amendment had the scope claimed by the plaintiffs, then the plaintiffs' First Amendment rights would necessarily be violated. And it is axiomatic that a plaintiff has standing to assert that his or her First Amendment rights have been violated. Critically, however, in Walker, the plaintiffs' asserted injury and their claimed constitutional violation were one and the same. Accordingly, we refused to consider, at the threshold stage of determining standing, whether the First Amendment did or did not restrict supermajority requirements for certain initiative efforts. Id. at 1093. That question must be reserved for the merits analysis. See id. at 1098-1105.
Nevertheless, we did note that "the term `legally protected interest' must do some work in the standing analysis . . . [and] has independent force and meaning without any need to open the door to merits considerations at the jurisdictional stage." Id. at 1093. But we did not explain what that independent force and meaning are, other than to offer a nonexhaustive list of situations in which an asserted "legally protected interest" is not recognized. See id. (noting that asserted interests in continued criminal activity or in prosecution of another are not legally protected, nor is a "claimed legal right [that is] so preposterous as to be legally frivolous").
Practically speaking, Walker mandates that we assume, during the evaluation of the plaintiff's standing, that the plaintiff will prevail on his merits argument 0907 that is, that the defendant has violated the law. See id. ("For purposes of standing, we must assume the [p]laintiffs' claim has legal validity."). But there is still work to be done by the standing requirement, and Supreme Court precedent bars us from assuming jurisdiction based upon a 1138 hypothetical *1138 legal injury. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130. While Walker addressed an instance in which the merits of the plaintiffs' claims mirrored the alleged standing injury, that is not always the case. There are cases, such as the one before us here, where the alleged injury upon which the plaintiffs rely to establish standing is distinct from the merits of claims they assert. E.g., In re Special Grand Jury 89-2, 450 F.3d 1159,

1172-73 (10th Cir.2006) ("[A] plaintiff can have standing despite losing on the merits 0907 that is, even though the [asserted legally protected] interest would not be protected by the law in that case."); see also Duke Power Co. v. Carolina Envt'l Study Group, Inc., 438 U.S. 59, 78-79, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978).
Here, the issue of standing is not necessarily determined by the merits determination. The merits issue is whether K.S.A. § 76-731a is preempted by 8 U.S.C. § 1623. The standing question is whether § 1623 creates a private cause of action. Each of these issues is separate and independent, and we may determine whether the Plaintiffs here have standing to assert a private cause of action under § 1623 without reaching the merits of whether § 1623 preempts § 76-731a. See DH2, Inc. v. U.S. Securities & Exchange Comm'n, 422 F.3d 591, 592 (7th Cir.2005) (determining that the plaintiff lacked standing because its injury was speculative, without addressing the merits of the underlying claim).
Under these conditions, Walker simply does not apply. Accordingly, we now turn to the pure standing question whether § 1623 confers a private cause of action upon the Plaintiffs.
B. Whether § 1623 confers a private cause of action on these plaintiffs.
The question whether a federal statute confers a private cause of action under 42 U.S.C. § 1983 0907 and concomitantly an injury for purposes of evaluating standing 0907 has been treated extensively in recent years. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 282-86, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); Alexander v. Sandoval, 532 U.S. 275, 286-93, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001); Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997).
The Supreme Court in Gonzaga University analyzed the Family Educational Rights and Privacy Act (FERPA) to determine whether it conveyed a personal right to nondisclosure of educational records. The statutory text at issue there provided that
[n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein . . .) of students without the written consent of their parents to any individual, agency, or organization.
Gonzaga Univ., 536 U.S. at 279, 122 S.Ct. 2268 (quoting 20 U.S.C. § 1232g(b)(1)). "[T]here is no question," the Court determined, "that FERPA's nondisclosure provisions fail to confer enforceable rights." Id. at 287, 122 S.Ct. 2268. The text lacked critical "rights-creating" language and addressed itself to the Secretary of Education, not the individuals on whom it purportedly conferred enforceable rights. Id. It employed an "aggregate focus" on "institutional policy and practice, not individual instances of disclosure," and it did not express concern "with whether the needs of any particular person ha[d] been satisfied." Id. at 288, 122 S.Ct. 2268 (quotations omitted). Further, Congress had mandated a federal enforcement mechanism, "expressly authoriz[ing] the Secretary of 1139 Education to deal with violations of *1139 the Act" by establishing an administrative review board. Id. at 289, 122 S.Ct. 2268 (citing 20 U.S.C. § 1232g(f)) (quotation, emphasis omitted). The Court concluded that Congress had not created personal rights under FERPA that were enforceable via § 1983. Id. at 290, 122 S.Ct. 2268.
The statute at issue in this case, 8 U.S.C. § 1623, has significant aspects of text and structure that foreclose the Plaintiffs' argument that it vests in them private rights. Its text "entirely lack[s] the sort of `rights-creating' language critical to showing the requisite congressional intent to create new rights." Gonzaga Univ., 536 U.S. at 287, 122 S.Ct. 2268. Section 1623 does not provide that "No nonresident citizen shall be denied a benefit" afforded to an illegal alien, but rather imposes a limit on the authority of postsecondary educational institutions. Cf. id. (quoting the rights-creating language of Titles VI and IX).
Moreover, § 1623 addresses itself to the institutions affected and their authority to provide benefits to illegal aliens, not to the class of nonresident citizens who incidentally benefit from its provisions. "This focus is [a step] removed from the interests of individual students and parents and clearly does not confer the sort of `individual entitlement' that is enforceable under § 1983" or an implied private right of action. Gonzaga Univ., 536 U.S. at 287, 122 S.Ct. 2268 (quoting Blessing, 520 U.S. at 343, 117 S.Ct. 1353). Section 1623, like FERPA, speaks "in terms of institutional policy and practice" and employs an "aggregate" focus which "cannot `give rise to individual rights.'" Id. at 288, 122 S.Ct. 2268 (quoting Blessing, 520 U.S. at 343-44, 117 S.Ct. 1353).

Further, we observe that 8 U.S.C. § 1103(a)(1) provides in relevant part that "[t]he Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens." We do not conclude that private rights are not conferred under other provisions of the immigration code. However, the language of § 1623, in combination with § 1103(a)(1), provides further evidence that federal, not private, enforcement of § 1623 was contemplated by Congress.
Accordingly, we hold that the Plaintiffs held no legal right under § 1623 to assert preemption that was invaded by the implementation of K.S.A. § 76-731a, and the Plaintiffs' claim of such an individual legal right under § 1623 to support standing is legally invalid. Thus, the Plaintiffs lack standing to assert a preemption claim based on such a supposed individual right.
CONCLUSION
The Plaintiffs' claim that K.S.A. § 76-731a violates the equal protection of the laws guaranteed under the Fourteenth Amendment fails for lack of standing. The Plaintiffs have failed to bring forward evidence supporting their theories of injury based upon the subsidization of resident tuition for illegal aliens. Thus, these theories of injury are too conjectural and speculative to support standing. And because the Plaintiffs cannot show that they could have qualified for the benefits of § 76-731a even were the allegedly discriminatory provision excised, they are unable to show that their other theories of injury are traceable to the discriminatory conduct alleged or that the injuries would be redressed by a decision in the Plaintiffs' favor. They thus lack standing to bring their equal protection claim.
The Plaintiffs similarly lack standing to raise their preemption claim under 8 U.S.C. § 1623. The text and structure of § 1623 do not manifest a congressional intent to create private rights, and the Plaintiffs thus have not claimed 1140 any cognizable *1140 and individualized injury stemming from the implementation of K.S.A. § 76-731a.
Because the Plaintiffs lack standing to bring either of their claims, we lack jurisdiction to hear them. We must therefore AFFIRM the dismissal of both claims.
[1] Section 76-731a, captioned "Certain persons without lawful immigration status deemed residents for purpose of tuition and fees," provides, in relevant part:
(a) Any individual who is enrolled or has been accepted for admission at a postsecondary educational institution as a postsecondary student shall be deemed to be a resident of Kansas for the purpose of tuition and fees for attendance at such postsecondary educational institution.
(b) As used in this section: . . .
(2) `individual' means a person who
(A) has attended an accredited Kansas high school for three or more years,
(B) has either graduated from an accredited Kansas high school or has earned a general educational development (GED) certificate issued within Kansas, regardless of whether the person is or is not a citizen of the United States of America; and
(C) in the case of a person without lawful immigration status, has filed with the postsecondary educational institution an affidavit stating that the person or the person's parents have filed an application to legalize such person's immigration status, or such person will file such an application as soon as such person is eligible to do so or, in the case of a person with a legal, nonpermanent immigration status, has filed with the postsecondary educational institution an affidavit stating that such person has filed an application to begin the process for citizenship of the United States or will file such application as soon as such person is eligible to do so.
(c) The provisions of this section shall not apply to any individual who:
(1) Has a valid student visa; or

(2) at the time of enrollment, is eligible to enroll in a public postsecondary educational institution located in another state upon payment of fees and tuition required of residents of such state.
[2] Section 1623, captioned "Limitation on eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education benefits," provides in relevant part that
[n]otwithstanding 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.
[3] The district court dismissed Governor Sebelius as a defendant because she had no involvement with the enforcement of § 76-731a and thus was not a proper defendant in the suit. The Plaintiffs do not appeal this ruling.
[4] The Plaintiffs' first and fourth theories of injury under their equal protection claim, evaluated under these standards, sufficiently allege cognizable injuries in fact to support the Plaintiffs' standing. However, as addressed in Part I.B of this opinion, infra, those theories falter on the causation and redressability requirements of Article III standing.
[5] Contrary to the Plaintiffs' arguments, City of Jacksonville does not mandate a different conclusion. The Supreme Court held in that case that "a plaintiff challenging under the Equal Protection Clause a legal barrier to compete for a government contract, need not show that in the absence of the challenged provision he would have been awarded the contract, only that he would have qualified for the opportunity to bid for it." Fuller, 86 F.3d at 1027 n. 10 (citing City of Jacksonville, 508 U.S. at 665-67, 113 S.Ct. 2297). As we noted in Fuller, this "equal footing" definition of injury in the context of a competition for benefits does not contradict the principle that a plaintiff disqualified entirely from competing for a benefit by nondiscriminatory eligibility criteria lacks standing. Id. This principle is equally applicable to competitive and noncompetitive benefit programs.
[6] In their Amended Complaint, the Plaintiffs denominated Count 2 as "Violation of 8 U.S.C. [§] 1623" and proceed to enumerate the ways in which K.S.A. § 76-731a "contravenes 8 U.S.C. [§] 1623." The district court separated this claim for analytical purposes into (1) a claim purporting to enforce directly substantive personal rights conferred by § 1623 and (2) a claim seeking injunctive relief against § 76-731a based upon the purported preemptive effect of § 1623. It dismissed the former claim for failure to state a claim, in that § 1623 provided no private right of action, and the latter claim for lack of standing. The analytic distinction between these two claims is a diaphanous one, and it might well dissolve upon close inspection. We need not decide the issue, however, as the Plaintiffs argue on appeal only that "enforcement" of § 1623 grants it the appropriate preemptive effect under the Supremacy Clause and the Plaintiffs concede they seek only invalidation of § 76-731a as relief. Accordingly, we consider their claim under Count 2 only as one of preemption.
[7] The Plaintiffs did not abandon their assertion of standing by failing to raise it in their initial appellate brief. They did directly raise the essence of the issue in their initial brief 0907 i.e., whether they have a legally cognizable right under § 1623. Further, we have the benefit of the Defendants' arguments on the threshold issue of standing presented in their response brief, and consideration of the issue thus would not prejudice them. The question was presented below, and both sides have had the opportunity to develop fully their legal and factual arguments. And though standing is not always a pure question of law, the issue here is one for which we have a sufficiently developed record, given that the same question of standing arises in the context of the Plaintiffs' equal protection claim. Cf. United Transp. Union v. Dole, 797 F.2d 823, 827-28 (10th Cir.1986). Thus, although the Plaintiffs "should have developed the issue in a more thorough and in-depth fashion in [their initial] appellate brief," id. at 827, we are not foreclosed from considering the issue by the concerns which normally prevent us from addressing a question abandoned on appeal.
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 511 F.3d 1030 (2007)

Kristen DAY; Sonna L. Day; Cody Echols; David C. Eichman; Brandi P. Gillette;

Christopher J. Heath; Amy E. Hughes; Jeraldyn L. Hughes; Kenneth H. Hughes; Nicole C.

Keene; Heidi L. Landherr; Roberta K. MacGregor; Robert R. Manzel; Karla A. Manzel;

Kayla L. Manzel; Jonathan D. Miller; Mary L. Miller; Lashonda M. Montgomery; Michelle

Prahl; Kyle Rohde; Marcy R. Rutan; Joshua B. Sheade; Jamie Whittenberg; Lindsey D.

Whittington, Plaintiffs-Appellants,

v.

Richard BOND, Chairman of the Kansas Board of Regents; Donna L. Shank; Janice

Debauge; William R. Docking; Lewis L. Ferguson; Frank Gaines; Nelson Galle; James

Grier, III; Deryl W. Wynn, Members of the Kansas Board of Regents in their official

capacity; Cindy Derritt, Registrar of the University of Kansas in her official capacity;

Monty Nielson, Registrar of Kansas State University in his official capacity; Lehymann F.

Robinson, Registrar of Emporia State University in his official capacity, Defendants-

Appellees,

1031

*1031 Kansas League of United Latin American Citizens; The Hispanic American

Leadership Organization, Kansas State Chapter; A. DOE; J. Doe; L. Doe, Defendants-

Intervenors-Appellees,

Kathleen Sebelius, personally and in her official capacity as Governor of Kansas,

Defendant.

Honorable Alan K. Simpson; Honorable Lamar S. Smith; Washington Legal Foundation;

Thomas J. Brennan; Zan Brennan; Brigette Brennan; Allied Educational Foundation;

Kansas Association of School Board, Inc., Amici Curiae.

No. 05-3309.
United States Court of Appeals, Tenth Circuit.
December 17, 2007.
Kris W. Kobach, Kansas City, MO, Michael M. Hethmon, Federation for American Immigration Reform, Washington, DC, for Plaintiff-Appellants.
Clayton L. Barker, Leawood, KS, David W. Davies, Johnson County District Attorney's Office, Olathe, KS, Michael F. Delaney, Spence, Fane Britt & Browne, Overland Park, KS, William Scott Hesse, Office of Attorney General, Topeka, KS, Michael C. Leitch, Kansas Attorney General, Topeka, KS, for Defendants-Appellees.
Before LUCERO, Circuit Judge, and McWILLIAMS and EBEL, Senior Circuit Judges.

ORDER

EBEL, Senior Circuit Judge.
Plaintiffs-Appellants filed a petition for rehearing and for consideration en banc seeking review of our decision 1032 affirming *1032 the dismissal of their preemption and equal protection claims.[1] In the district court, Plaintiffs
challenged a Kansas statute 0907 Kan. Stat. Ann. § 76-731a 0907 that allows certain non-U.S. citizens to pay instate tuition rates while attending Kansas post-secondary educational institutions. The district court dismissed each of the relevant claims for lack of standing.

On appeal, we affirmed the district court's dismissal of Plaintiffs' equal protection claim for lack of standing. Day v. Bond, 500 F.3d 1127, 1130 (10th Cir.2007). We then addressed Plaintiffs' preemption claim, and noted that "[t]he only form of injury that the Plaintiffs assert in support of their standing to make this preemption claim is the invasion of a putative statutory right conferred on them by [8 U.S.C.] § 1623." Id. at 1136. Accordingly, to determine if Plaintiffs had alleged the requisite injury in fact necessary for standing purposes, we analyzed whether § 1623 confers a private right of action. Id. We affirmed the district court's dismissal of the preemption claim after concluding that Plaintiffs lacked standing because § 1623 did not confer a private right of action. Id. at 1139.
After reviewing Plaintiffs' petition, we conclude that Plaintiffs' arguments do not justify rehearing because our decision does not conflict with prior decisions of the Supreme Court, the Tenth Circuit, or our sister circuits.[2] We recognize, however, that certain facets of this case are complex and that additional explanation may clarify the logic supporting our conclusions. Accordingly, we address below why it is appropriate to deny Plaintiffs' request for rehearing in spite of two of the issues raised in the petition.[3]
I. Whether our opinion concluded that preemption claims generally require a plaintiff to demonstrate a private right of action, and if so, whether our opinion conflicts with precedent from the Tenth Circuit, our sister circuits, and the Supreme Court
First, Plaintiffs contend that our opinion concludes that a private right of action is a necessary prerequisite in all instances to establish federal question jurisdiction for preemption claims. They argue that this conclusion conflicts with prior decisions of the Supreme Court, the Tenth Circuit, and our sister circuits. Plaintiffs, however, apparently misunderstand the nature of our conclusion regarding the relationship between the alleged statutory right and their preemption claim. Their confusion on this point apparently stems from the unique nature of the injury they asserted in relation to their preemption claim. As we recognized in the opinion, Plaintiffs' only form of alleged injury for their preemption claim was "the invasion of a putative statutory right conferred on them by [8 U.S.C.] § 1623." Id. at 1136. Therefore, if § 1623 did not confer such a right on Plaintiffs, they would lack standing for their preemption claim. Our standing analysis thus required us to analyze whether § 1623 confers a private right of action. Id. This is a distinct question from whether a private right of action exists for the purposes of federal question jurisdiction.
1033 *1033 In support of their contention, Plaintiffs assert that our opinion conflicts with this court's decision in Qwest Corp. v. City of Santa Fe, 380 F.3d 1258 (10th Cir.2004), because our standing analysis required Plaintiffs to demonstrate that § 1623 confers a private right of action. Plaintiffs make much of the language in Qwest that states "[a] party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right of action." 380 F.3d at 1266. Our conclusion, however, does not conflict with Qwest because there this court did not determine that a plaintiff may bring a preemption claim without standing. In fact, the plaintiff in Qwest clearly alleged a sufficiently particularized economic injury based on a newly enacted Santa Fe ordinance.[4]Id. at 1262-63. Accordingly, given the clear presence of a particularized injury, this court did not explicitly address that element of the standing inquiry.
Plaintiffs also assert that our opinion is at odds with cases from several other circuits: Puerto Rico Telephone Co. v. Municipality of Guayanilla, 450 F.3d 9 (1st Cir.2006); Planned Parenthood of Houston and Southeast Texas v. Sanchez, 403 F.3d 324 (5th Cir.2005); Bud Antle, Inc. v. Barbosa, 45 F.3d 1261 (9th Cir.1994); and Western Air Lines, Inc. v. Port Authority of New York & New Jersey, 817 F.2d 222 (2d Cir.1987). We disagree because each of these cases can be distinguished in the same manner as Qwest. Specifically, in each case, the plaintiffs had a sufficiently particularized injury to support standing for their claim. Puerto Rico Tel. Co., 450 F.3d at 11, 16 (plaintiff alleged injury based on a potentially preempted local ordinance that required the plaintiff to pay 5% of its gross revenues to a municipality); Sanchez, 403 F.3d at 328 (plaintiff alleged injury based on a potentially preempted state statute that restricted the distribution of federal family planning funds to entities 0907 like the plaintiff 0907 that provided abortions); Bud Antle, Inc., 45 F.3d at 1264-65 (plaintiff alleged injury based on costs of complying with potentially preempted state labor law); W. Air Lines, Inc., 817 F.2d at 223 (plaintiff alleged injury based on a potentially preempted state agency rule that prevented the plaintiff from establishing a route between LaGuardia and Salt Lake City airports). Accordingly, in each of the cases cited by Plaintiffs, the court did not have

reason to explicitly address the standing issue because the Plaintiffs alleged a particularized injury, and instead only determined that a private right of action under a federal statute that allegedly preempted the offending statute was not a prerequisite to bring a preemption claim. Puerto Rico Tel. Co., 450 F.3d at 14-15; Sanchez, 403 F.3d at 334; Bud Antle, Inc., 45 F.3d at 1269; W. Air Lines, Inc., 817 F.2d at 225-26. Therefore, the distinction between these cases and the instant case is clear: only in the instant case are we required to consider the effect of a lack of a private right of action in the context of standing.
Plaintiffs also complain that our decision conflicts with Supreme Court precedent. In particular, Plaintiffs argue that our opinion is inconsistent with Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), and Crosby v. National Foreign Trade Council, 530 U.S. 363, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). In Shaw, the Supreme Court asserted that "[a] plaintiff who seeks injunctive relief from state regulation, on the 1034 ground that such regulation is pre-empted by a federal statute which, by virtue of the *1034 Supremacy Clause, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve." 463 U.S. at 96 n. 14, 103 S.Ct. 2890. Similarly, in Crosby, the Supreme Court permitted a plaintiff to pursue a preemption claim under the Supremacy Clause even though it was not clear that the federal law at issue gave rise to a private right of action. 530 U.S. at 370-71, 120 S.Ct. 2288.
These cases support the general proposition that a federal law need not include a private right of action in order to support federal question jurisdiction when a party pursues a preemption claim arising under the Supremacy Clause. Shaw and Crosby do not, however, support the proposition that a party does not need to establish that it has standing before it may pursue such a claim. Thus, these cases do not conflict with our opinion.
II. Whether our decision requiring a private right of action to establish Plaintiffs' standing for their preemption claim conflicts with Tenth Circuit precedent
Additionally, Plaintiffs contend that our decision requiring a private right of action to establish standing for their preemption claim conflicts with a prior Tenth Circuit decision. Specifically, Plaintiffs argue that by requiring them to demonstrate that § 1623 confers a private right of action, our standing analysis for their preemption claim conflicts with In re Special Grand Jury 89-2, 450 F.3d 1159 (10th Cir.2006). In Grand Jury, we decided two issues relevant to the standing inquiry in the instant case. First, we noted that an injury in fact only requires an injury to be "the sort of interest that courts think to be of sufficient moment to justify judicial intervention." Id. at 1172. Second, we noted that "there is no requirement that the legal basis for the interest of a plaintiff that is `injured in fact' be the same as, or even related to, the legal basis for the plaintiff's claim." Id. at 1173.
Neither of these determinations alter the logic of our opinion in the instant case. As previously stated, Plaintiffs' only claimed injury in regard to their preemption claim rests on the invasion of a statutory right that Plaintiffs claimed § 1623 conferred on them.[5] Accordingly, Grand Jury's statement that a "judicially cognizable interest" can exist even if the interest is not "protected by law" has no effect because Plaintiffs' only claimed injury relies explicitly and entirely on their asserted rights under statutory law. Accordingly, in such circumstances, our decision does not conflict with Grand Jury.
III. Conclusion
In sum, the cases that Plaintiffs believe conflict with our opinion do no such thing. In each of these cases, it is clear that a sufficiently particularized injury existed in order to support standing. Here however, Plaintiffs have not asserted the existence of any such particularized injury. Although Plaintiffs may generally bring a preemption claim without an implied private right of action, in this particular instance, they do not have standing to do so 1035 because they have asserted no separate injury. Accordingly, we DENY the petition *1035 for rehearing with suggestion for rehearing en banc.
[1] See Day v. Bond, 500 F.3d 1127 (10th Cir. 2007), for a full discussion of the facts in this case.
[2] The petition was circulated to all members of the court who are in active service. No judge called for a poll. Accordingly, the request for rehearing en banc is denied.

[3] We find no merit in any of the other issues raised in the petition for rehearing and do not feel that further discussion of those matters is warranted.
[4] Specifically, in Qwest, the plaintiff alleged that the ordinance would result in a 59% increase in its operating costs in Santa Fe. See 380 F.3d at 1262-63.
[5] Plaintiffs do attempt to assert other injuries in conjunction with their equal protection claims. Our previous opinion addressed those assertions and concluded that they were insufficient to establish standing. Those alleged injuries were not asserted as a basis for their preemption claim. However, if they had been, they would be subject to the same defects and insufficiencies pointed out in our prior discussion regarding the Plaintiffs' equal protection claim.
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