## ATTORNEY GENERAL OF 

## TEXAS

GREG ABBOTT

July 23,2009

The Honorable Rob Eissler Opinion No. GA-0732 Chair, Committee on Public Education Texas House of Representatives Re: Whether the State of Texas may permit Post Office Box 29 10 unauthorized aliens to receive the benefit of inAustin, Texas 78768-2910 state tuition atTexas state colleges and universities (RQ-0742-GA)
Dear Representative Eissler:

You have requested that we answer the questions submitted by your colleague, Representative Leo Berman, former chair ofthe Committee on Elections. We were asked whether Texas "is in violation of federal law and the Equal Protection Clause of.



### . . the United States Constitution, by allowing illegal aliens in Texas the benefit of instate tuition in state colleges and universities to the exclusion of nonresident United States citizens."' Although the request does not cite to any particular provision of Texas law, we understand it to inquire about Education Code sections 54.052(a)(3) and 54.053(3). Section 54.052 governs the determination of resident status for in-state tuition eligibility at state colleges and universities in Texas and includes as a resident a person who:
(A) graduated from a public or private high school in this state
or received the equivalent of a high school diploma in this state; and


### (B) maintained a residence continuously in this state for: (i) the three years preceding the date of graduation or receipt ofthe diploma equivalent, as applicable; and
(ii) theyearpreceding the census date ofthe academic term in which the person is enrolled in an institution of higher education.

TEX. EDUC. CODE ANN. 

## 5 54.052(a)(3) (Vernon 2006). To establish residency under this provision, section 54.053(3)requires a person to submit information to establish the resident status and "if the person is not a citizen or permanent resident of the United States, an affidavit stating that the person

'Request Letter at 1 (available at http://www.texasattorneygeneral.gov).The Honorable Rob Eissler 

### - Page 2

will apply to become a permanent resident of the United States as soon as the person becomes eligible to apply." Id. 

## 5 54.053(3).

We consider here only whether sections 54.052(a)(3)and 54.053(3)violate 8 U.S.C. 

## 5 1623 andthe Equal Protection Clause,the federal provisions specifically raised. Section505 ofthe Illegal Immigration Reform and Immigrant Responsibility Act of 1996, codified at 8 U.S.C. 

## 5 1623, provides as follows: Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible onthe basis of residence within a State



## . . . 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.

8U.S.C 

## 5 1623(a)(2006). The Equal Protection Clause of the Fourteenth Amendmenttothe United States Constitution generally requires states to treat similarly situated persons in a similar manner. See U.S. CONST. amend. XIV, 

## 5 1. Because the request does not specify or present legal arguments
asto how or why the state statutes may violate the federal law, owdiscussion is necessarily general.



### I. Federal Statutory Preemption Under the Supremacy Clause of the United States Constitution, "any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to a federal law, must yield." Gade v. Nut '1 Solid Wastes Mgmt. Ass 'n, 505 U.S. 88, 108 (1992) (quoting Free v. Bland, 369 U.S. 663, 666 (1962)). State laws may be preempted under the Supremacy Clause by federal law in several ways. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-74 (2000) (discussing express preemption and the two categories of implied preemption, i.e., field and conflict preemption); De Canas v. Bica, 424 U.S. 351, 358 n.5, 360-65 (1976) (discussing preemption of immigration-related state law), The request suggests that the Texas statutes may conflict with 8 U.S.C. 

## 5 1623. See Request Letterat 1;Crosby, 530U.S. at 372 (explaining that state law is impliedly preempted to the extent of conflict with federal law). A conflicting state statute is preempted if it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" or if compliance with both the state and federal law is impossible. De Canas,424 U.S. at 363; Crosby, 530 U.S. at 372-73; seealso Villas atParkside Partnersv. City of Farmers Branch, 496 

### F. Supp. 2d 757, 764-66 

### (N.D. Tex. 2007) (discussing the De Canas decision as construed by federal district courts). Section 1623 would preempt Education Code sections 54.052(a)(3) and 54.053(3)under the conflict preemption test ifthese sections provide a "postsecondary educationbenefit" to an alien who is not lawfully present in the United States (hereinafter "unauthorized alien") on the basis of "residence," within the meaning of the federal statute, "unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident." 8 U.S.C. 

## 5 1623 (2006).The Honorable Rob Eissler 

### - Page 3 (GA-0732)

Section 1623, however, does not define "postsecondary education benefit" or "residence." See id.2 We are not aware of any federal agency that has administratively defined these terms; nor
are we aware of anyfederal court or state supreme court that has construed these terms or considered the substantive application of section 1623(a)to a statute similar to the Texas statutes. SeeJones
v. Ruth Packing Co., 430 U.S. 519,526 (1 977) (stating that obstacle preemption inquiry requires a consideration ofthe "relationship between state and federal laws as they areinterpretedandapplied, not merely as they are written") (emphasis added).
To date, the only judicial decision on this specific question is from anintermediate California state appellate court, and it is currently pending review by the California Supreme Court. See Martinez v. Regents of Univ. of Cal., 83 Cal. Rptr. 3d 518 (Cal. App. 3d), superseded by 198P.3d 1 (Cal. 2008) (granting respondents' petition for review on Dec. 23, 200Q3In Martinez v. Regents of Universityof California, the court of appeals held that a California statute exempting unauthorized aliens from paying nonresident tuition at certain state colleges and universities4 provided a benefit
onthe basis ofresidence in violation of 8 U.S.C. 

## 6 1623, and was thus preempted by the federal law. See Martinez, 83 Cal. Rptr. 3d at 540-45. The court construed "benefit" in 8 U.S.C. 

## 5 1623 to include in-state tuition, rejecting the argument that it means only payment of money or direct financial assistance. See id. at 53 1-33. The court also determined that the state statute requiring attendance at a California high school for atleast threeyears created a de facto residence requirement and thus conferred a benefit to unauthorized aliens on the basis of residence in California. Id. at 537-40. Finally, the Martinez court determined, because the California statute did not provide instate tuition to United States citizens from other states "'without regardto' ~aliforniaresidence, [the statute] conflicts with



## . . . 8 U.S.C. section 1623." Id. at 540. Accordingly, the Martinez court concluded, the California statute was preempted to the extent of the conflict because it was

'A provisioninthe related Personal Responsibilityand Work Opportunity ReconciliationAct of 1996, codified at 8 U.S.C. § 1621(c), defines "state or local benefits" as any retirement, welfare, health, disability, public or assistedhousing,postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibilityunit by an agencyof a Stateor local government or by appropriated funds of a State or local government.

8 U.S.C. 8 1621(c)(l)(B) (2006) (emphasis added). Section 1621 does not further define "postsecondary education benefit."

3UnderCalifornia court rules, ifthe California Supreme Court grants review, a court of appeals' opinion may be treated as an unpublished opinion or a partial publication. See Cal. R. Ct. 8.1105(e), 8.1 110, 8.1 115. Pursuant to California's Rules of Court, Martinez has been certified for partial publication. See Martinez, 83 Cal. Rptr. 3d at n.* (providing that the "opinion is certified forpublication with the exceptionofparts I1 and I11 oftheDISCUSSION); Cal. R. Ct. 8.1110 (concerning partial publication).

4TheCalifornia statute provides that to qualify for in-state tuition rates, (1) students must have attended high school in California for a least three years; (2) they must have graduated from a California high school or attained the equivalent thereof; and (3)unauthorized alien students must submitan affidavit that they have either filedan application to legalize status or will file such an application as soon as they become eligible. Martinez, 83 Cal. Rptr. 3d at 522 n. 1.The Honorable Rob Eissler 

### - Page 4 (GA-0732)

impossible for universities and colleges to comply with both federal and state law, and because "it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id. at 54142.5

It is possible that another court could follow the reasoning of the Martinez decision. However, a California Supreme Court decision would not bind a federal or state court in Texas, and
no other court has considered the validity under federal law of a state statute authorizing in-state tuitionfor unauthorized aliens6Thus, while a federal or state court in Texas could find that 

### 8U.S.C. 

## 5 1623 preempts Education Code sections 54.052(a)(3) and 54.053(3) to the extent of the conflict with the federal law, given the paucity of judicial precedent, we cannot predict with certainty that a court would so find.

11. Equal Protection The Equal Protection Clause oftheFourteenth Amendmentto the United States Constitution prohibits a statefrom denying "to anyperson within its jurisdiction the equal protection ofthe laws." U.S. CONST. amend.

### XIV, 1. The constitutional equal protection guarantee requires that similarly situated persons be treated similarly under the law; it does not preclude a state from adopting legislation classifying persons for "one purpose or another, with resulting disadvantage to various groups or persons." Romer v. Evans, 517 U.S. 620,631 (1996) (citing PersonnelAdm 'r v. Feeney, 442 U.S. 256, 271-72 (1979)). The question presented suggests that unauthorized aliens and nonresident United States citizens are similarly situated, but treated unequally with respect to eligibility for the benefit of in-state tuition under Texas law. See Request Letter at 1. Because the request does not specify or present legal arguments as to how or why the state statutes violate the equal protection guarantee, our discussion is necessarily general.
First, on their face, Education Code sections 54.052(a)(3) and 54.053(3) do not allow unauthorized aliens a benefit denied to nonresident United States citizens. See TEX. EDUC. CODE

'The Martinez court looked at the Congressional objective as stated in 8 U.S.C. Ij 1601 regarding the national policy with respect to immigration: "the availability of public benefits [should] not constitute an incentive for immigration to the United States" and "[ilt is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits." Martinez, 83 Cal. Rptr.3d at 542; 8 U.S.C. 1601(2)(B), (6) (2006).

61n Day v. Sebelius, the federaldistrict court dismissed equal protection and preemption challengesto a Kansas in-state tuition statute similarto the Texas statutes on the grounds that the out-of-state plaintiffs lacked standing because they were not injured as a result of the state law and there existed no private right of action under the federal statute. See Sebelius, 376F. Supp.2d 1022, 1034, 1039(D.Kan. 2005). The Tenth Circuit Court ofAppeals affirmedthe dismissal. Day v,Bond, 500 F.3d 1127 (10th Cir. 2007), cert. denied, 128 S. Ct. 2987 (2008). In rejecting the out-of-state plaintiffs' equal protection standing claim, the circuit court determined that the plaintiffs' alleged injury-having topay nonresident tuition-would not be redressed by a decision in the plaintiffs' favor because they still would not qualify for in-state tuition. Bond, 500 F.3d at 1139. Regarding the plaintiffs' preemption standing claim, the circuit court concluded that "the text and structure of Ij 1623 do not manifest a congressional intent to create private rights, and the Plaintiffs thus have not claimed any cognizable and individualized injury stemming from the implementation of [the Kansas statute]." Id at 113940.The Honorable Rob Eissler 

### - Page 5 (GA-0732)

ANN.

## $5 54.052(a)(3), .053(3) (Vernon 2006). Nonresident United States citizens can obtain the benefit of sections 54.052(a)(3)and 54.053(3)by graduating from a Texas high school or obtaining the equivalent of a Texas high school diploma; and living continuously in Texas for the three years preceding the graduation or receipt of the diploma and the year before the census date of the term of enrollment in a Texas college or university. See id. 

## 5 54.052(a)(3). Second, high school attendance and residency requirementsby themselves wouldnot violate the equal protection guarantee. The United States Supreme Court has approved "bona fideresidency requirements in the field ofpublic education." Martinez v. Bynum, 46 1 U.S. 32 1, 326-27 (1983). Additionally, the Court has recognized "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." VZundis v. Kline, 412 U.S. 441, 452-53 (1973). "This 'legitimate interest' permits a 'State [to] establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates."' Bynum, 461 U.S. at 327 (quoting Vlandis, 412 U.S. at 453-54). An appropriately defined bona fide residence requirement uniformly applied furthers "the substantial state interest in assuring that services provided for [a state's] residents are enjoyed only by residents[,]" and "[s]uch a requirement with respect to attendance in public free schools does not violate the Equal Protection Clause." 

### Id. at 328. Finally, such a requirement does not burden or penalize a fundamental right protected by the Constitution or implicate a suspect classification requiring strict scrutiny. Id. at 328-29 & n.7; see also Plyler v. Doe, 457 U.S. 202, 221-23 (1982) ("[plublic education is not a 'right' granted to individuals by the Constitution") (citing Sun Antonio Indep. Sch. Dist, v. Rodriguez, 41 1 U.S. l,35 (1973)).7 Accordingly, a federal or state court in Texas would likely conclude that Education Code sections 54.052(a)(3) and 54.053(3)do not facially violate the Equal Protection Clause because the statutory prerequisites for in-state tuition are reasonable requirements that serve Texas's legitimate
or substantial interest in assuring that only bona fide residents that graduate or receive diplomas from Texas high schools are eligible for in-state tuition. However, as with the issue of preemption, we caution that no court has addressed whether a statute similar to the Texas statutes conforms to the mandates ofthe Equal Protection Clause.'

71f a legislative classification targets a suspect classorimpacts a fundamental right "it will be strictly scrutinized and upheld only ifit isprecisely tailored to further a compelling government interest." Sonnierv. Quarterman,476 F.3d 349, 368 (5th Cir. 2007) (citing Plyler, 457 U.S. at 217-18). If the legislative classification "neither burdens a hndamental right nor targets a suspect class," it will be upheld "so long as it bears a rational relation to some legitimate end." Romer, 517 U.S. at 631.

'The California appellate court in Martinez did not determine that the similar California statute violated the Equal Protection Clause. See Request Letter at 1("the Third District Court of Appeals in California ruled that California law conflicts with federal law and the Equal Protection Clause"). It merely allowed the plaintiffs in the case to amend their complaint regarding the equal protection claim. See Martinez, 83 Cal. Rptr. 3d at 545-46. In discussing the equal protection claim, the Martinez court, in fact, observed that the "high school attendance requirement of [the California statute] is not troubling in and of itself, because a state may favor its own residents." Id. at 545.The Honorable Rob Eissler 

## - Page 6



### SUMMARY

Education Code sections 54.052(a)(3) and 54.053(3) would conflict with and thus be preempted by section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, codified at 

### 8 U.S.C. fj 1623, if the state statutes provide 

### a "postsecondary education benefit" to an alien who is not lawfully present in the United States on the basis of "residence," within the meaning of the federal statute, "unless a citizen or national of the United States is eligible for such a benefit



### . . . without regard to whether the citizen or national is such a resident." 8U.S.C.

## 5 1623(a) (2006). However, the terms "postsecondary education benefit" and "residence" are not defined in the federal law. In addition, no Texas or federal court has construed these terms or considered the substantive application of the federal law to a statute similar to the Texas statutes. Thus, while a federal or state court in Texas, following the reasoning of an intermediate California state appellate court decision, could find that 

### 8 U.S.C. fj 1623 preempts Education Code sections 54.052(a)(3)and 54.053(3)tothe extent ofthe conflict with the federal law, given the paucity of judicial precedent, this office cannot predict with certainty that a court would so find. The United States Supreme Court has "approved bona fide residency requirements in the field of public education." Martinez v. Bynum, 461 U.S. 321, 326-27 (1983). Additionally, the Court has recognized "that a State has a legitimate interest in protecting and preserving the quality ofits colleges and universities and the right of itsown bona fide residents to attend such institutions ona preferential tuition basis." Vlandis v. Kline, 412 U.S. 441,452-53 (1973). "This 'legitimate interest' permits a 'State [to] establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solelyfor educational purposes, cannot take advantage of the in-state rates."' Bynum, 461 U.S. at 327 (quoting Vlandis, 412 U.S. at 453-54). Accordingly, a federal or state court in Texas would likely conclude that Education Code sections 54.052(a)(3)and 54.053(3)do not facially violate the federal Equal Protection Clause because the statutory prerequisites for in-state tuition are reasonable requirements that serve Texas's legitimate or substantial interest in assuring that only bona fide residents that graduate from Texas high schools or receive the diploma equivalent fromthis state are eligible for in-stateThe Honorable Rob Eissler 

### - Page 7 (GA-0732)

tuition. However, no court has addressed whether a statute similarto the Texas statutes conforms to the mandates ofthe Equal Protection Clause. Very tr ly yours, 

# A%&

Attorney General of Texas

ANDREW WEBER First Assistant Attorney General

JONATHAN 

### K. FRELS Deputy Attorney General for Legal Counsel

NANCY S. FULLER Chair, Opinion Committee

Sheela Rai Assistant Attorney General, Opinion Committee