Virginia’s chapter of the American Civil Liberties Union is vowing to represent any student denied in-state tuition because his parents are illegal immigrants, setting up a dispute with Attorney General Robert McDonnell over the interpretation of state education law.
The ACLU argues unequal treatment of the students would violate the equal protection guarantees of the U.S. Constitution, while McDonnell argues granting them the less-expensive tuition afforded Virginians would be illegal.
The disagreement revolves around whether the statutes governing who can receive in-state tuition reflect immigration status and specifically whether an illegal immigrant can be “domiciled” in the state.
In a March 6 memo to the State Council of Higher Education, Senior Assistant Attorney General Ronald Forehand argued that a student cannot receive the lower tuition while living with parents not legally present in the United States.
Illegal immigrants may not legally be “domiciled” in the commonwealth and their children must prove they have established Virginia residency on their own to qualify, Forehand wrote.
Not so, argues the ACLU of Virginia. Executive Director Kent Willis said the conclusion reflects a bias against immigrants.
“We cannot find anything in the law that says if they’re not here legally, they can’t be domiciled,” Willis said.
“The ACLU is wrong legally,” said McDonnell spokesman Tucker Martin. “Illegal aliens cannot establish domicile in Virginia, so the ACLU has no basis for any legal action. This agency advice simply reiterates that basic legal fact, and then explains how every citizen has the ability to rebut a determination that they are not eligible for in-state tuition.”
