The Fight over Financial Aid to Illegal Alien Students Continues

Too often, politicians at every level will ignore the clear language of a law if it does not let them do as they wish.  This was evident on two fronts last week: in California and here in the District of Columbia.

First California.  You will recall that we filed a taxpayer lawsuit in August 2014 challenging a decision by the University of California Regents to give up to $27.1 million in non-resident tuition waivers and financial aid to illegal alien students in their schools.

A lower California state court upheld their action, and we’ve now completed the briefing for the appeal of the lower court ruling with the filing of a reply brief last week.  We brought this litigation on behalf of Earl De Vries, a legal resident and taxpayer of California (Earl De Vries v Regents of the University of California (BC555614)).  Under California law, taxpayers have the right to sue government officials to prevent unlawful expenditures of taxpayer funds and taxpayer-financed resources.

In our August 2014 lawsuit on behalf of De Vries in the L.A. County Superior Court, we asked the court to halt the estimated annual $19.6 million in non-resident tuition waivers, $4.3 million in taxpayer-funded grants and scholarships, and $3.2 million in state loans the Regents have started giving illegal alien students.

Under the “Personal Responsibility and Work Opportunity Reconciliation Act” passed by Congress in 1996, unlawfully present aliens are ineligible for state or local public benefits.  The only exception to this federal law is when a state “affirmatively provides for such eligibility” to illegal aliens, which states may do “only through the enactment of a State law.”

The California State Legislature passed statutes granting such tuition benefits to California State University students and California Community College students, but it was forbidden to do so for University of California students.  Under the California Constitution, the UC Board of Regents is “entirely independent” of the state legislature in policy matters, so there is no lawful way for the California legislature to allow or require the University of California to provide public benefits to illegal aliens.

In March 2015, the Superior Court ruled that the UC Board of Regents policies themselves (and not the state statutes) are the “state laws” that affirmatively provide the benefits to UC students in satisfaction of federal law and dismissed the lawsuit.  In November 2015, Judicial Watch filed its opening appellate brief with the California Court of Appeal, Second Appellate District, arguing that the trial court wrongly read extra words into Congress’ statute.  Specifically, the brief argues that the federal statute in question “does not say ‘state law or administrative rule, regulation or policy.’ It says ‘State law.’ This means an enactment of the state legislature.”

In our March 22 appellant’s reply brief, we highlighted how the appointed UC Board of Regents has not been granted the same rights as a state legislature elected by voters under federal law:

When Congress wrote “only through the enactment of a state law” can unlawfully present aliens receive benefits, that is precisely what it meant.  This means the exercise of state legislative power. … The Regents argue this is not what Congress really meant, but rather it meant any exercise of state lawmaking power, be it legislative, executive, judicial, or by independent board.  Those arguments are unavailing. Congress’ unique word choices and other evidence of Congressional intent behind [the federal law] prove that the statute is limited to representative or democratic state legislative acts only.

UC Regents officials think they can rewrite the law according to their personal whims and provide illegal aliens in-state tuition benefits contrary to law.  Public officials on the UC Board of Regents need to put aside politics and obey both federal law and the California Constitution.  They have no right to play politics at taxpayers’ expense.

“Taxpaying California citizens deserve to have their hard-earned money spent lawfully,” De Vries says. “What the Regents are doing is not only illegal, and it’s grossly unfair to taxpayers.”

There also was action this week in the U.S. Supreme Court on a matter that concerns illegal aliens.  Last year, we joined with the Allied Educational Foundation (AEF) in the filing of two amici curiae briefs with the U.S. Supreme Court in support of Sue Evenwel, a Texas resident who filed a lawsuit to overturn a Texas “malapportionment” law (Sue Evenwel, et al. v. Greg Abbott, et al. (No. 14-940)) and (Sue Evenwel, et al. v. Greg Abbott, et al. (No. 14-940)).

We argued then that Texas is devaluing the votes of certain citizens by improperly including noncitizen nonvoters when determining the “equal population” of legislative districts.  Under federal law and the laws of all 50 states, only citizens may vote in federal elections.  Texas’ scheme to give weight to non-voting non-citizens along with lawful voters is contrary to the principles embodied in citizen voting laws.  As a result, the votes of some Texas’ citizens have, by some measures, almost twice the electoral power of the votes of other Texas citizens.

Unfortunately, the Supreme Court this week found that, the “one-person, one-vote” allows states to use total population only, rather than voter population, when apportioning state voting districts: “Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have fol­lowed for decades, even centuries.”

Isn’t it incredible that five of the six justices who signed on to that opinion just last year imposed gay marriage across America despite thousands of years of tradition and law!

The media made much of the 8-0 ruling, but the same media masked reports of the Court’s divisions.  Justice Thomas agreed with the result only because he thought states had leeway to apportion state legislative seats as under our constitutional system.  Justice Alito also noted that the decision by Justice Ginsberg left for another day the issue of whether only voters could be counted for purposes of apportionment by the states.  View the Evenwel opinions here.

The Supreme Court’s Evenwel majority decision undermines the principle of “one man, one vote.”  The decision will encourage politicians to fill their legislative districts with more non-citizens and fewer voting Americans.  This abuse could lead to unequal voting power for voters in districts with large numbers of alien residents.

Under this decision, 100,000 black American voters in one state legislative district would have the same voting power as 10,000 white American voters in another district with 90,000 non-citizens.  Even though total population is the same in both districts, voting power is radically different.

These types of abuses, already present in Texas, will spread nationally.

This is one reason this political decision by the High Court will not stand the test of time.

To that end, you may now want to contact your state’s elected representatives about how you feel about counting non-citizens in apportioning representation in your state legislature.