It's not often that a state attorney general declines to defend a state law. Kansas passed a law allowing illegal immigrants to attend state universities at discount tuition rates. Consequently, some out-of-state U.S. citizens who have to pay higher tuition just filed a lawsuit.

Kansas Attorney General Phill Kline agrees with them. He recused himself and assigned the defense of the case to other attorneys in his office.

Kline notes that several federal statutes have tried to prevent states from undermining national immigration law by giving taxpayer-paid benefits to those who enter the United States illegally. He says the Kansas tuition law rewards illegal activity and therefore is likely to be held contrary to federal law.

The lawsuit was filed on behalf of students from some of the other 49 states who are attending Kansas universities but are denied in-state college tuition. The lawsuit asserts that the Kansas tuition law, which was signed by Gov. Kathleen Sebelius on May 20, makes each of these U.S. students pay at least $10,000 more during their college years than illegal immigrants pay.

The three Kansas state universities currently have more than 9,000 students enrolled who are identified as non-U.S. citizens. For just the fall 2004 term, each illegal immigrant undergraduate student will receive a taxpayer subsidy of a reduction in tuition of $3,181.80 at the University of Kansas, $3,504 at Kansas State University and $3,360 at Emporia State University.

Federal law - 8 U.S.C. 1623(a) - bars aliens who are not lawfully present in the United States from receiving "any postsecondary education benefit" unless U.S. citizens are eligible for the same benefit "in no less an amount, duration, and scope" without regard to whether the citizen is a resident of the state. But Kansas is not giving this subsidy to U.S. citizens from the other 49 states.

The intent of the federal statute, which was signed by then-President Clinton in 1996, is clear. Anticipating that the states might try to get around the law, Congress specified that states may not award a college tuition subsidy to illegal immigrants "on the basis of residence within a state."

The chicanery of the Kansas law is obvious. It states that the illegal immigrant student "shall be deemed to be a resident of Kansas for the purpose of tuition and fees" if the illegal immigrant has attended a Kansas high school for three or more years or has received a GED in Kansas, and submits an affidavit stating that he will file an application to legalize his immigration status as soon as he is eligible to do so.

But this appears to require the student to do the impossible. Under federal law, illegal immigrants are detainable and deportable and may be barred for 10 years or more from reapplying for legal admission to the United States. Continued...