MARTINEZ v. The REGENTS of The Univ. of Cal.

50 Cal.4th 1277

241 P.3d 855

117 Cal.Rptr.3d 359

Robert MARTINEZ et al., Plaintiffs and Appellants,

v.THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

No. S167791.

Supreme Court of California

Nov. 15, 2010.

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Immigration Reform Law Institute, Kris W. Kobach; Ropers, Majeski, Kohn & Bentley and Michael J. Brady, Redwood City, for Plaintiffs and Appellants.

Lawrence J. Joseph for Eagle Forum Education & Legal Defense Fund as Amicus Curiae on behalf of Plaintiffs and Appellants.

Daniel J. Popeo, Richard A. Stamp; Law Offices of Mark E. Foster and Mark E. Foster, San Jose, for U.S. Representative Lamar Smith, U.S. Representative Steve King, Washington Legal Foundation

and Allied Educational Foundation as Amici Curiae on behalf of Plaintiffs and Appellants.

Sharon L. Browne and Ralph W. Kasarda, Sacramento, for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiffs and Appellants.

Charles F. Robinson, Christopher M. Patti, Oakland, Margaret L. Wu; Howard Rice Nemervoski Canady Falk & Rabkin, Robert D. Hallman, San Francisco; Folger Levin & Kahn, Crowell & Moring, Ethan P. Schulman and Trina D. McAlister, San Francisco, for Defendants and Respondents The Regents of the University of California and Mark G. Yudof.

Christine Helwick and Andrea M. Gunn, Long Beach, for Defendants and Respondents Board of Trustees of the California State University and Charles B. Reed.

Edmund G. Brown, Jr., Attorney General, David S. Chaney, Chief Assistant Attorney General, Gordon Burns, Deputy State Solicitor General, Douglas M. Press, Assistant Attorney General, and Julie Weng-Gutierrez, Deputy Attorney General, for Defendants and Respondents California Community Colleges and Chancellor Marshall Drummond.

Multicultural Education, Training and Advocacy (META) Inc., and Peter D. Roos for Californians Together, The Association of Mexican American Educators and the California Association of Bilingual Education as Amici Curiae on behalf of Defendants and Respondents.

Julie A. Su, Yungsuhn Park, Carmina Ocampo; Bird, Marella, Boxer, Woolpert, Nessim, Drooks & Lincenberg, Paul S. Chan, Los Angeles, and Jennifer S. Chang for Asian Pacific American Legal Center and 80 Asian Pacific American organizations as Amici Curiae on behalf of Defendants and Respondents.

Camille A. Goulet, Kevin D. Jeter, Los Angeles, Anne L. Diga and Eric C. Kim for Los Angeles Community College District as Amicus Curiae on behalf of Defendants and Respondents.

Garcia Calderón Ruíz, Mary T. Hernandez, Cecilia N. Brennan, San Diego, and Virginia Y. Calderón for San José/Evergreen Community College District as Amicus Curiae on behalf of Defendants and Respondents.

Vanessa Castillo, Carlos Amador, Jonathan Bibriesca, Yenni Diaz, Francisco Bravo and Lourdes Cruz for Orange County Dream Team as Amicus Curiae on behalf of Defendants and Respondents.

Munger, Tolles & Olson, Bradley S. Phillips, Fred A. Rowley, Jr., Mark R. Yohalem, Gabriel P. Sanchez, San Francisco; Lawyers' Committee for Civil Rights of the San Francisco Bay Area, Robert Rubin, San Francisco; Mexican American Legal Defense and Educational Fund, Cynthia Valenzuela, Pasadena, Nicholas Espiritu and Kristina Campbell for Alicia A., Gloria A., Marcos A., Mildred A., Enrique Boca, Nicole Doe, Collin Campbell, Alex Ortiz, Linda Lin Qian, Cesar Rivadeneyra, Jennifer Seidenberg, Improving Dreams, Equality, Access and Success at University of California, Davis, Improving Dreams, Equality, Access and Success of University of California, Los Angeles and National Immigration Law Center as Amici Curiae on behalf of Defendants and Respondents.

Stutz Artiano Shinoff & Holtz, Ray J. Artiano and Robert M. Mahlowitz, San Diego, for San Diego Community College District as Amicus Curiae on behalf of Defendants and Respondents.

Latinojustice PRLDEF, Jose Perez, Jackson Chin; Simpson Thacher & Bartlett, Alexis S. Coll-Very, George R. Morris and Deanne K. Cevasco, Palo Alto, for

New York State Youth Leadership Council, The New York State Association for Bilingual Education, New York Latino Research and Resources Network, New York Immigration Coalition, Long Island Immigrant Alliance, Northern Manhattan Coalition for Immigrant Rights, Hispanic Resource Center of Larchmont and Mamaroneck, Hispanic Federation, Committee for Hispanic Children & Families, Hispanic Association of Colleges and Universities, Hispanic College Fund, Hispanic National Bar Association, Asian American Legal Defense & Education, Professional Staff Congress, California Faculty Association, Dr. Pedro Caban, Dr. Marcelo Suárez-Orozco, Dr. Carola Suárez-Orozco, Dr. Regina Cortina, Catherine J. Crowley and Dr. Kevin Dougherty as Amici Curiae on behalf of Defendants and Respondents.

Lee Gelernt, Lucas Guttentag and Linton Joaquin, Los Angeles, for American Civil Liberties Union, American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California, American Civil Liberties Union of San Diego and Imperial Counties and the National Immigration Law Center as Amicus Curiae on behalf of Defendants and Respondents.

Thuy Thi Nguyen; School and College Legal Services of California, Virginia A. Riegel, San Francisco, and Patrick C. Wilson, Santa Rosa, for Peralta Community College District as Amicus Curiae on behalf of Defendants and Respondents.

CHIN, J.

This case involves a controversial subject: persons unlawfully present in this country. The California Legislature has provided that unlawful aliens are exempt from paying nonresident tuition at California state colleges and universities under certain circumstances. (Ed.Code, § 68130.5 (section 68130.5). Congress has prohibited the states from making unlawful aliens eligible for postsecondary education benefits under certain circumstances. (8 U.S.C. § 1623 (section 1623).) Plaintiffs challenge section 68130.5's validity, largely on the basis that it violates section 1623. Defendants argue section 68130.5 complies with federal law.

This court has received many briefs making policy arguments for and against section 68130.5's tuition exemption. We have received arguments that section 68130.5 affords deserving students educational opportunities that would not otherwise be available and, conversely, arguments that it flouts the will of Congress, wastes taxpayers' money, and encourages illegal immigration. But this court does not make policy. Whether Congress's prohibition or the Legislature's exemption is good policy is not for us to say. Rather, we must decide the legal question of whether California's exemption violates Congress's prohibition or is otherwise invalid. We must decide the statutory question by employing settled methods of statutory construction.

The main legal issue is this: Section 1623 provides that an alien not lawfully present in this country shall not be eligible on the basis of residence within a state for any postsecondary education benefit unless a citizen or national of this country is eligible for that benefit. In general, nonresidents of California who attend the state's colleges and universities must pay nonresident tuition. (Ed.Code, § 68050.) But section 68130.5, subdivision (a), exempts from this requirement students-including those not lawfully in this country-who meet certain requirements, primarily that they have attended high school in California for at least three years. The question is whether this exemption is based on residence within California in violation of section 1623.

Because the exemption is given to all who have attended high school in California for at least three years (and meet the other requirements), and not all who have done so qualify as California residents for purposes of in-state tuition, and further because not all unlawful aliens who would qualify as residents but for their unlawful status are eligible for the exemption, we conclude the exemption is not based on residence in California. Rather, it is based on other criteria. Accordingly, section 68130.5 does not violate section 1623.

We also conclude plaintiffs' remaining challenges to section 68130.5 lack merit. Specifically, section 68130.5 does not violate another federal statute (8 U.S.C. § 1621 (section 1621)), is not impliedly preempted by federal law, and does not violate the privileges and immunities clause of the Fourteenth Amendment to the United States Constitution. We reverse the judgment of the Court of Appeal, which had found section 68130.5 invalid on each of these grounds.

I. Procedural Background

Plaintiffs allege that they are United States citizens who are or were students paying nonresident tuition at a California public university or college, and that they have been “illegally denied exemption from nonresident tuition under California Education Code section 68130.5.” They have filed this lawsuit against the Regents of the University of California (Regents) and others, including officials representing the California State University System and the California Community Colleges. The complaint also alleges that “[p]laintiffs intend to and hereby maintain the claims reflected herein as a class action. The plaintiff class consists of thousands of former and current nonresident U.S. citizens too numerous to be practically joined.”

The complaint states 10 causes of action. The first eight causes of action allege, in order, that section 68130.5 violates the following legal provisions: (1) section 1623; (2) section 1621; (3) 42 U.S.C. section 1983; (4) the equal protection clause of the United States Constitution; (5) the privileges and immunities clause of the Fourteenth Amendment to the United States Constitution; (6) “field preemption”; (7) the equal protection clause of the California Constitution; and (8) the Unruh Civil Rights Act (Civ.Code, § 51 et seq.). The ninth and 10th causes of action are for injunctive...