09/18/2012 12:41 pm ET Updated Nov 18, 2012

Florida Deferred Action Recipients Deserve In-State College Tuition

Perhaps following states, such as Arizona, Alabama and Georgia, which have sought to implement their own policies touching upon immigration, until recently the state denied parents the ability to pay in-state tuition for state colleges and universities. To some, this issue may be insignificant, but when one considers that this practice affected 200,000 young inhabitants, effectively preventing them from attending college, its importance is abundantly apparent.

Because of the Florida law, these young adults had to pay anywhere from three to four times the cost of college education of other residents -- the difference between let's say $5,000 and $20,000 a year. However, two weeks ago, Federal District Court Judge Michael Moore in Ruiz v. Robinson, found that the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution forbids a state from discriminating against these similarly situated citizens.

Judge Moore correctly observed that "defendants by their own admission classify plaintiffs by virtue of their parents' undocumented status." Under this framework, the Judge found that the state created a tier of second-class citizens that were required to pay significantly more for public higher education, effectively preventing the plaintiffs, from accessing higher education.
Somewhat related to this issue is the claim for in-state tuition brought by recipients of deferred action. As many already know, President Obama recently created this program, whereby undocumented students who came to the country as children are now allowed to apply for a temporary status in the United States. The controlling language on this issue is a state document entitled the Guidelines on Florida Residency for Tuition Purposes.
Section 2.1 of the Guidelines specifically identifies that U.S. citizens, lawful permanent residents, and aliens lawfully present in the United States may be classified as residents for tuition purposes. Section 2.4 of the Guidelines is of particular importance with respect to deferred action recipients. This section, which is titled "Exceptions/Qualification," contains language that conclusively addresses the matter. Specifically, within Section 2.4 of the Guidelines is the following language:

"Non-U.S. Citizens who fall within the following categories are also eligible to establish Florida residency for tuition purposes...

h. Individuals granted Deferred Action Status."

Accordingly, the relevant guidelines concerning residency envision and actually cover deferred action recipients. The language of Section 2.2, coupled with Section 2.4's language, strongly suggest that the legislature, through one of its delegated arms, envisioned a broad grouping of individuals pursuant to federal immigration determinations to be allowed to prove their residency based on actual presence within the state for the requisite period identified by the relevant statute and guidelines. And the categories of individuals that are able to establish residence are broad, and specifically include beneficiaries of certain temporary legal immigration status, including deferred action.

Because it is a basic canon of statutory interpretation that a "court should always turn to one cardinal canon before all others... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Only the most obscure and tortured interpretation of the guidelines would lead one to conclude that despite the various provisions cited above, an applicant's parents' legal residence is a precondition to obtaining in-state tuition.

Finally, given the success of the plaintiffs in the Ruiz case, it is not unlikely that these issues and related ones will continue to be the focus of varFurthermore, in light of the guidelines' favorable language concerning deferred action recipients on the in-state tuition issue, it would be ious advocacy groups and attorneys. unwise, possibly exposing the state's higher education system to significant legal damages, to not immediately institute an in-state tuition program for deferred action recipients.