Uncivil action

In 2001, Maria was a high-school senior excited about applying to college, with dreams of eventually becoming an attorney. But despite stellar grades, she wasn’t sure if attending would even be an option.

Now, in 2006, she is a senior at UC Davis—and is fighting to preserve the law that she says is the only reason she is there today.

Maria—who asked that her last name not be used for this story—is an undocumented immigrant, one of the estimated 12 million in the country who are at the center of a heated national debate over immigration policy. She came to the United States with her family from Jalisco, Mexico, when she was 5 years old.

Until 2002, undocumented immigrants like herself, who wanted to pursue higher education, had to do so at the same rate as out-of-state students because they lacked California residency. With out-of-state tuition sometimes costing more than twice as much as the in-state fees, Maria’s family could afford only community college—until she was saved by the bill.

In 2001, Assembly Bill 540, authored by then-Assemblyman Marco Antonio Firebaugh, passed and was signed by then-Governor Gray Davis. The law allows college students who don’t have California residency to pay the in-state fee rates at the University of California, California State University and California community colleges if they attended a California high school for at least three years, graduated from a California high school and have been accepted to a college or university in the state. Because many undocumented immigrants meet these criteria, they can apply to be one of these “A.B. 540 students,” as long as they sign an affidavit stating that they are in the process of legalizing their status or will try to as soon as they are able.

For Maria and many other undocumented students, many of whom come from families that struggle financially, the law meant the difference between going to college and not.

But in December, about 40 California college students from out of state filed a lawsuit in December against the three school systems, claiming that their granting of in-state fee rates to undocumented students, as mandated by A.B. 540, violates a federal law by not offering the same to out-of-state students.

Some of the plaintiffs say that the lawsuit is simply meant to address what they see as unfairness in the law. Undocumented students feel it was driven by anti-immigration sentiment enflamed by politicians to scapegoat them for the country’s problems. Either way, the lawsuit has thrust Yolo County and California into the debate over illegal immigration and has shed light on what Maria calls a “shadow population”—undocumented immigrant students.

Undocumented immigrants are able to apply to the UC system since the application doesn’t take citizenship status into consideration, said Pamela Burnett, the director of undergraduate admissions at UC Davis. Though there is a question for it, she said students can leave it blank, because it’s not something the college looks at. Maria said that she listed her status as pending.

Even though some undocumented students qualify for in-state fees under the law, they can’t apply for federal financial aid.

Juan, an undocumented UC Davis senior whose family came to California from Guatemala when he was 8, can’t get a regular job to help his parents offset his college expenses; instead, he works for a Chilean friend during breaks from school who pays him in cash. He can’t apply to rent an apartment, so he is lucky to have friends who let him live with them without him signing the lease. Even buying his books from the bookstore can be a hassle because it asks for two forms of identification now and does not consider his Guatemalan consulate matricular card as one. And not being able to apply for federal financial aid does make life harder for his family.

Juan’s father, though, always told his five children that money was not going to be an issue when it came to education. He worked his way up from washing dishes in restaurants to being a manager and puts in extra hours and has refinanced their home several times to pay his son’s tuition.

“My dad said we were going to get an education no matter what,” Juan said. “He always says that he prays to God to still be around until the youngest one graduates from college.”

Like Maria, Juan says that A.B. 540 made higher education a reality for him, though even the in-state rates can be expensive for undocumented immigrant families, many of which are low-income.

Up until the end of his junior year, he thought he was the only undocumented immigrant who attended UC Davis. It wasn’t until he was sitting with some friends and accidentally slipped out his status that he found out he wasn’t alone and that Maria was starting a group for them on campus.

“I always felt the need to have some type of support. There needs to be a circle where you can openly talk about these things,” said Maria. “This identity causes you to feel like less [than] somebody else. It brings injustice straight into your face.”

That’s what happened last fall, said Maria, when she saw an advertisement in the campus newspaper, the California Aggie.

“ARE YOU AN AMERICAN STUDENT PAYING NON-RESIDENT TUITION?” the ad read. “Public universities in California are offering illegal aliens in-state tuition, while Americans like you are paying up to $17,000 more per academic year!” It was an advertisement to recruit plaintiffs “who oppose illegal immigration” into a class-action lawsuit.

The suit, filed December 14, 2005, in Yolo County Superior Court, charges that A.B. 540’s granting of in-state fees to undocumented immigrants violates a federal law that says “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 is eligible for such a benefit.”

“It’s kind of insulting now that other parents that took routes that weren’t legal get all sorts of benefits that I didn’t. My father immigrated from Thailand in the ’70s legally,” said plaintiff Suzanne Kattija-Ari, a first-year veterinary student and former undergraduate at UC Davis who came from Kaneohe, Hawaii, to study in California.

“For me, the point is to get the law to make sense. It doesn’t make sense for there to be a mechanism for illegal immigrants to pay in-state tuition. There’s very little chance of me personally getting any financial refund, but that’s not the goal.”

Kattija-Ari’s attorney, Michael J. Brady, said his client and as many as 80,000 out-of-state students who are legal citizens are entitled to “restitution for what has already been done to them—thousands of dollars in illegally extracted tuition for each student.”

A hearing on the lawsuit is scheduled for May 25. Nicholas Espíritu, with the Lawyers’ Committee for Civil Rights, is one of the attorneys defending A.B. 540.

“Undocumented students would be effectively priced out of college,” he said, fostering “permanent class divisions between individuals.

“If we look at the universe of students out there, these are really the most deserving out there. Despite every obstacle put in their way, they still have been able to get through that and succeed and go to school and strive to make their dreams come true. It seems to be a gross injustice to try to take that away from these students, who have long-standing attachments to California.”

For her part, Maria said she was “insulted” by the suit. “People don’t know that we pay taxes [to this state],” she said. “I’ve been struggling just to get through undergrad. Immigrants are easy scapegoats for the country.” She said her family has already spent thousands of dollars trying to legalize its members’ status and that many people fall into fraudulent traps while doing so.

The March 21 death of Firebaugh at age 39 from liver disease, she said, inspires her to make sure his legacy of access to higher education for immigrant and low-income communities survives. She first met him when she gave testimonies at press conferences in favor of passing the bill when she was a high-school senior. She interned at his Sacramento office during her freshman year at UC Davis.

“Had that law never passed, I never would have been able to attend a UC. I would have gone to a community college and been stuck there,” Maria said. “I feel responsible to really fulfill the opportunity he gave me.”