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Hastings Constitutional Law Quarterly

Abstract

The recent wave of anti-immigrant sentiment has resulted in a revisitation of the rights of undocumented alien students. While each state has its own residency rules, a few states, including California, have precluded long-term undocumented alien students from establishing in-state residency for postsecondary tuition purposes. As a result, in most cases, students who are academically qualified to attend the state's institutions, whose only home is and has been within the state, and who otherwise function as full participants in the state's economy, are barred from attending the state's public institutions.

This article examines the legal and social implications of preventing this section of our society from receiving postsecondary education. The author argues that the application of Supreme Court case law prohibits states from denying these students in-state tuition solely because they are undocumented. After analyzing the Supreme Court precedent and recent cases in California, the article concludes that one California court has reached the correct result: the author argues that the court in Leticia "A" v. Board of Regents of the University of California correctly applied immigration law to student residency issues and held that the State's related Education statutes were unconstitutional. Finally, the author argues that, states receive a net benefit from this group of individuals and that, therefore, precluding their incorporation into California society through higher education is a foolishly short-sighted policy.

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