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Real Estate News Releases
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(EMAILWIRE.COM, August 04, 2009 )
Houston, TX August 4, 2009
The BIG question as to whether Texas is in violation of federal law and the Equal Protection Clause ofÂ…the United States Constitution (USC), by allowing illegal aliens in Texas the benefit of instate tuition in state colleges and universities to the exclusion of nonresident United States citizens was answered by the Attorney General of Texas, The Honorable Greg Abott.
In a bid to answer that question, the AG referred to the Education Code Sections 54.052(a)(3) and 54.053(3) of the U.S.C. where the bone of contention usually arises from. from. Section 54.052 governs the determination of resident status for in-state tuition eligibility at state colleges and universities in TX. That section of the constitution states that a resident is 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 the 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.
For residency to be determined the individual person is required to submit relevant information disclosing his or her resident status. If the individual has not yet attained permanent residency or citizenship of the United States YET, he or she may sign an affidavit that states he or she will apply to become a permanent resident of the USA as soon as he or she becomes eligible.
After considering the above named sections of the 8 U.S.C. it is paramount to look at section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 which states: “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 the 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.
By doing such evaluations therefore the Education Code sections 54.052(a)(3) and 54.053(3) would conflict and therefore preempted by section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 codified at the 8th United States Constitution. 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 of the United States is eligible for such a benefitÂ…without regard to whether the citizen or national is such a resident.
However the terms, “post secondary 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. Therefore, in conclusion, while a state court in Texas following the reasoning of an intermediate California state appellate court decision, could find that 8 U.S.C. preempts Education Code sections 54.052(a)(3) and 54.053(3) to the extent of the conflict with the federal law.
To keep following this story go to www.degree.com the premier internat online degree portal.
Degree.com
Sheila Danzig
954.905.4942
sheila@danzig.com 
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