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American Civil Liberties Union of Virginia, News Release
March 25, 2008

ACLU Says Schools Must Provide In-state Tuition to U.S.-Born Virginia Residents Even If Parents Are Undocumented
Virginia civil liberties organization offers legal assistance to U.S.-born Virginia students who are denied in-state tuition.

Richmond, VA -- In letters being mailed today, the American Civil Liberties Union of Virginia warns Virginia colleges against denying in-state tuition to U.S.-born students whose parents are undocumented immigrants. The ACLU’s letter responds to a memo from the Virginia Attorney General’s office claiming that undocumented persons are not considered to be domiciled in Virginia and therefore their children are presumed not to be domiciled here as well. One must be domiciled in Virginia to receive in-state tuition.

The ACLU of Virginia is prepared to offer legal representation to any student in this situation who is denied in-state tuition.

The issue arose recently after a U.S.-born high school student residing in Alexandria was told he might not receive in-state tuition rates from the University of Virginia. UVA officials later relented, but there is no guarantee that other students applying to UVA or other schools will receive the same treatment.

“It appears that the AG is allowing his bias against immigrants to taint his thinking,” said ACLU of Virginia Executive Director Kent Willis. “Under the AG’s line of reasoning, a U.S. citizen born in Virginia and who has spent his entire life here could be denied in-state tuition because his parents are not lawfully present. That’s patently unfair and a bit preposterous, if you think about it. At the very least it violates a fundamental tenet of U.S law -- that you do not punish children for the actions of their parents.”

“The AG also misinterprets Virginia’s own laws regarding domicile,” added Willis. “The AG says that undocumented persons cannot be considered domiciliaries of Virginia. But there’s nothing in the law that requires lawful presence in order to be domiciled here. Domicile merely means you live in Virginia and intend to remain here.”

“The Attorney General does give some wiggle room that may allow universities to offer in-state tuition rates to these students under some circumstances,” added Willis. “But the ACLU is saying is that the schools must give them in-state tuition. They have no choice in the matter.”

Contacts: Kent Willis or Rebecca Glenberg (804/644-8022)

[ACLU of Virginia]

[Text of letter sent to presidents of all public universities in Virginia]

March 25, 2008

Dear ___________:

I write regarding a recent memo from the office of the Attorney General addressing the issue of in-state tuition for U.S. citizen children of undocumented immigrants. As you are no doubt aware, the Attorney General opined that it is impossible for undocumented immigrants to establish domicile in Virginia, and that their dependent children, who are presumed to share their parents’ domicile, must therefore be presumed to be ineligible for in-state tuition. The ACLU of Virginia believes that this is an incorrect statement of Virginia law, and, moreover, that it is unconstitutional to deny a student in-state tuition based solely on the immigration status of his parents.

Virginia law provides that to be eligible for in-state tuition, a dependent student must establish that “ the person through whom he claims eligibility” – typically, the student’s parents – has been domiciled in Virginia for at least one year. Va. Code § 23-7.4(B). The statute defines “domicile” as “the present, fixed home of an individual to which he returns following temporary absences and at which he intends to stay indefinitely.” Va. Code § 23-7.4(A). The definition of domicile contains no mention of immigration status. An undocumented immigrant, and, by extension, his children, should be considered a domiciliary of Virginia if he resides in Virginia and intends to remain there indefinitely.

Indeed, to treat the U.S. citizen children of undocumented immigrants differently from similarly situated students with respect to in-state tuition would violate the Equal Protection Clause of the Fourteenth Amendment. The United States Supreme Court has repeatedly recognized that individuals may not be discriminated against on the basis of who their parents are. For example, in the context of laws that discriminate against children born out of wedlock, the Court has observed:

[I]mposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual-as well as an unjust-way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where-as in this case-the classification is justified by no legitimate state interest, compelling or otherwise.

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972).

The same principle applies to the children of undocumented immigrants. The Supreme Court has explained that such children “can affect neither their parents' conduct nor their own status. . . .Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice.” Plyler v. Doe, 457 U.S. 202 (1982).

Therefore, we request that you treat dependent U.S. citizen children of undocumented immigrants precisely the same way that you treat their peers. If they or their parents reside in Virginia and intend to remain here, they should be granted in-state tuition. Accordingly, we request prompt written assurances that the undocumented status of students’ parents will not be considered in making eligibility determinations for in-state tuition.

We are in communication with individuals and groups directly affected by the uncertainties created by the Attorney General’s memo, and we are prepared to take legal action on behalf of any student who is denied in-state tuition based on the legal status of his parents.

Please respond by April 8, 2008. Should you have any questions, please do not hesitate to call me at (804) 644-8022. Thank you for your assistance in this matter.

Sincerely,

Rebecca K. Glenberg
Legal Director

cc: Governor Tim Kaine
Attorney General Robert F. McDonnell