Part 1 is here 

Do individual states have the right to “establish reasonable criteria” for in-state tuition? In Goodhart v. Bd. Of Visitors, the District Court for the Western District of Virginia ruled that a state had a legitimate interest in protecting the right of its bona fide residents to attend its colleges and universities on a preferential basis. “Preferential tuition rates serve not just legitimate, but important, state interests.” The decision upheld a resolution by a university in Virginia not to grant instate tuition to a student from Georgia who had moved there for higher education and claimed to remain indefinitely.

Does 8 U.S.C. § 1623 prevent states from granting instate tuition to undocumented students? Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Title 8, Chapter 14, Sec. 1623(a)) states: "an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident." Some interpret this law to mean that instate-tuition for undocumented students is unconstitutional—the Courts have thus far skirted around the issue.

Does instate-tuition for undocumented students violate the equal protection clause of the Fourteenth Amendment?

No. In Plyler v. Doe, the Supreme Court held that “no plausible distinction with respect to Fourteenth Amendment jurisdiction can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” Hence, an undocumented student is entitled to the same protection under the laws as a citizen.

Citing “lack of standing,” the Tenth Circuit Court of Appeals recently dismissed a lawsuit filed by nonresident citizen students against Governor Selebius for granting resident tuition to undocumented students.

Does 8 U.S.C. § 1623 allow American citizens and legal residents private right of action i.e. filing a discrimination claim against a university for giving instate-tuition to undocumented students?

In Day v. Selebius, using 8 U.S.C. § 1623, plaintiffs filed a lawsuit against Governor Kathleen Selebius, challenging the Kansas instate-tuition law which allowed at least six undocumented students to qualify for Kansas resident tuition. The Tenth Circuit dismissed the suit stating that the plaintiffs failed to show they were injured by the Kansas Law (K.S.A. § 76-731a) that grant instate-tuition to certain non-residents. Nor could any injury be redressed by overturning the law since the plantiffs would not be eligible for resident tuition even without the law:

“Discrimination cannot be the cause of injury to an applicant who could not have obtained the benefit even in the absence of the discrimination, and such an applicant lacks the requisite personal stake in the outcome because he would still not qualify for the benefit following a decision in his favor.”

Also, while the Court admitted that they might have standing under 8 U.S.C. § 1623, the federal code provided no private right of action.