Following the example of a similar case in Kansas, several U.S. citizens have sued California, alleging the state is in violation of federal law by allowing illegal immigrants to pay in-state tuition at public colleges and universities, while denying the same privilege to out-of-state students.

The 42 out-of-state students represented in the case allege that California Assembly Bill 540 (AB 540) is in direct violation of a federal statute passed by Congress in 1998. The statute – 8 United States Code 1623 of the Illegal Immigration Reform and Responsibilities Act – mandates that any state university or college that allows illegal immigrants to pay in-state tuition must also give the same benefit to out-of-state students.

AB 540, which went into effect on Jan. 1, 2002, states that any student who has a three-year attendance record and diploma from a California high school can pay in-state tuition at California public universities. Non-citizens who have completed the two requirements can apply for in-state tuition after filing an affidavit stating they will apply for U.S. citizenship.

Plaintiff Attorney Michael Brady of the Ropers, Majeski, Kohn & Bentley law firm said the federal statute was very clear.

“The congressional law says if you give in-state benefits to illegal immigrants, you must pay the price,” Brady said. “What’s amazing is that [legislators] would take such financial risks. That’s hundreds of millions of dollars each year.”

Brady said he expects each student involved in the case could receive up to $305,000 in damages if the lawsuit is successful.

UC spokeswoman Ravi Poorsina denied charges that AB 540 is in violation of the federal statute.

“This tuition exemption is not based on residency,” Poorsina said. “It’s based on requirements that apply to all students. A family that lives in Colorado and sends their student to a boarding [high] school in California can apply for in-state tuition.”

She said the UC complies with AB 540 in order to make the application process less confusing for parents and students.

“This exemption serves unique opportunities,” Poorsina said. “To say that this was designed to accommodate illegal immigrants is grossly incorrect. Most are legal residents.”

UC Spokesman Ricardo Vasquez said the UC aligned with AB 540 in 2003. In the 2004-2005 school year, he said, 1,339 students who were non-California residents benefited from AB 540. Vasquez said only 30 percent of these students were undocumented immigrants.

Poorsina said the UC general legal counsel will handle the suit but another law firm may be hired. The UC has yet to respond to the suit.

Plaintiff lawyer and University of Missouri-Kansas City Law Professor Kris Kobach said he thinks California is violating the U.S. Bill of Rights. Under the 14th Amendment, the privileges of U.S. citizens cannot be divided by states and regions.

Kobach said he became interested in AB 540 while serving as Attorney General John Ashcroft’s general counselor from 2001 to 2003. He said he was hired as co-counselor by Brady’s law firm after he sued the state of Kansas on similar charges in 2004. The state won the lawsuit, which is now under appeal.

UC Berkeley senior and business administration major Aaron Dallek is an Illinois native and plaintiff in the lawsuit.

“I really feel that it’s not right,” Dallek said. “I feel that if illegal immigrants are given the right to pay in-state tuition, American citizens should be able to as well. It’s a federal law.”

He said his out-of-state tuition as a freshman in 2002 was $16,300, but that it is now $23,700.

Former U.S. Representative Brian Bilbray is also involved in the lawsuit. He said his children, Patrick and Briana, originally lived in California but pay out-of-state tuition at San Diego City College because they left California for a few years.

Bilbray said he became interested in the lawsuit after discussions with California community college officials.

“I actually had someone tell me, ‘we don’t recognize the federal law, we go by the state law,'” Bilbray said. “I told them they were wrong. … Students shouldn’t have to sue on their own in order to have equal protection. We need to get tough on this issue.”

Bilbray also said the California law is unfair to illegal immigrants. He said he grew up on the border between Texas and Mexico and witnessed several illegal immigrants die in their attempts to cross the border. He said giving illegal immigrants in-state tuition for college is also misleading. Bilbray said that few of the illegal immigrants who graduate from college ever find desirable jobs because it is still against the law to hire illegal immigrants.

“To encourage this is illegal and immoral,” Bilbray said.

Bilbray is currently running for California’s 50th Congressional District and said he will address this issue in his campaign.