Untitled Texas Attorney General Opinion

GENERALOF TEXAS

ATTORNEY

GREG A B B O T T

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 in-

Austin, Texas 78768-2910 state tuition at Texas 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 of the Committee on Elections. We were asked whether

Texas "is in violation of federal law and the Equal Protection Clause o f . . . 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 of the diploma equivalent, as applicable; and

(ii) the year preceding the census date of the academic term

in which the person is enrolled in an institution of higher education.

TEX.EDUC.CODEANN.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

and the Equal Protection Clause, the federal provisions specifically raised. Section 505 of the 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 on the 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.

8 U.S.C 5 1623(a) (2006). The Equal Protection Clause of the Fourteenth Amendment to the 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

as to how or why the state statutes may violate the federal law, o w discussion 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 Letter at 1;Crosby, 530 U.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; see also Villas at Parkside Partners v. 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 education benefit" 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 any federal 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. See Jones

v. Ruth Packing Co., 430 U.S. 5 19,526 (1977) (stating that obstacle preemption inquiry requires a

consideration of the "relationship between state and federal laws as they are interpreted and applied,

not merely as they are written") (emphasis added).

To date, the only judicial decision on this specific question is from an intermediate 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 198 P.3d

1 (Cal. 2008) (granting respondents' petition for review on Dec. 23, 200Q3 In Martinez v. Regents

of University of California, the court of appeals held that a California statute exempting unauthorized

aliens from paying nonresident tuition at certain state colleges and universities4provided a benefit

on the basis of residence 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 at least three years 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 in-

state tuition to United States citizens from other states "'without regard to' ~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 provision in the related Personal Responsibility and Work Opportunity Reconciliation Act of 1996, codified

at 8 U.S.C. § 1621(c), defines "state or local benefits" as

any retirement, welfare, health, disability, public or assisted housing,postsecondary

education, food assistance, unemployment benefit, 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. 8 1621(c)(l)(B) (2006) (emphasis added). Section 1621 does not further define "postsecondary education

benefit."

3Under California court rules, if the 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. 8.1 105(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 for publication with the exception ofparts I1 and I11 ofthe DISCUSSION); Cal.

R. Ct. 8.11 10 (concerning partial publication).

4The California 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 submit an affidavit that they have either filed an 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

tuition for unauthorized aliens6 Thus, while a federal or state court in Texas could find that 8 U.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 of the Fourteenth Amendment to the United States Constitution

prohibits a state from denying "to any person 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, 5 17 U.S. 620,63 1 (1996) (citing Personnel Adm '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).

61nDay v. Sebelius, the federal district court dismissed equal protection and preemption challenges to a Kansas

in-state tuition statute similar to 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, 376 F. Supp. 2d 1022, 1034, 1039 (D. Kan. 2005). The Tenth Circuit Court of Appeals affirmed the 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 to pay

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 requirements by themselves would not violate

the equal protection guarantee. The United States Supreme Court has approved "bona fide residency

requirements in the field of public 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

(1 973). "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 , 3 5 (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 of the Equal Protection Clause.'

71fa legislative classification targets a suspect class or impacts a fundamental right "it will be strictly scrutinized

and upheld only if it is precisely tailored to further a compelling government interest." Sonnier v. 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

S U M M A R Y

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." 8 U.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. f j 1623 preempts Education

Code sections 54.052(a)(3) and 54.053(3) to the 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 of its colleges and universities and the right of

its own bona fide residents to attend such institutions on a 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 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).

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 from this state are eligible for in-state

The Honorable Rob Eissler - Page 7 (GA-0732)

tuition. However, no court has addressed whether a statute similar to

the Texas statutes conforms to the mandates of the 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