OMAHA — A Nebraska judge threw out a lawsuit Friday challenging a state law that allows some illegal immigrants to pay in-state college tuition.
Jefferson County District Judge Paul Korslund ruled the six Nebraskans who claimed their taxes were being spent in violation of federal law should have first gone to the federal government and could renew the challenge in state court if the federal government declines to act.
The plaintiffs' attorney, Kris Kobach, called the dismissal "a bump in the road" and said he wasn't sure whether he would appeal the judge's dismissal or ask the Department of Homeland Security to intervene.
"The case is far from over," said Kobach, who recently was elected Kansas secretary of state. He has led litigation in other states, most notably Arizona, targeting illegal immigration.
The lawsuit filed in January claimed that taxes from the Fairbury residents were being used to support the state's immigration-tuition law in violation of federal law. The lawsuit named the University of Nebraska Board of Regents and other state college boards as defendants and asked the judge to prevent school officials from following the law.
University attorney Joel Pedersen agreed that the dismissal left open potential further litigation but declined to speculate how the plaintiffs will proceed.
The state law passed in 2005 says students whose parents brought them to the U.S. illegally may pay the lower in-state tuition fees, as long as they graduated from Nebraska high schools, lived in the state for at least three years and are pursuing or promise to pursue legal status. The rules for residency requirements and nonresident tuition fees are governed by state law.
Opponents of the law say it is unfair to legal residents and conflicts with both the U.S. Constitution and a 1996 federal law that prohibits higher education institutions giving benefits to illegal immigrants without offering the same break to U.S. citizens.
In-state tuition can be significantly cheaper than fees for out-of-state residents. For example, undergraduate tuition at the University of Nebraska-Lincoln is about $6,000 per year for in-state students and $17,650 for those from out of state.
Kobach led a similar lawsuit in California, where the state Supreme Court ruled last month that illegal immigrants are entitled to the same tuition breaks offered to in-state high school students to attend public colleges and universities. Kobach, who represented a group of U.S. students seeking to invalidate the California law, has said he would appeal that decision to the U.S. Supreme Court.
The California Legislature passed the measure in 2001 that allowed any student, regardless of immigration status, who attended a California high school for at least three years and graduated to qualify for in-state tuition at the state's colleges and universities. In-state tuition saves each state college student about $11,000 a year and each University of California student about $23,000 a year.
Several other states, including New York and Texas, have similar laws.