In response to a memorandum sent by Virginia Attorney General Bob McDonnell, the Virginia chapter of the American Civil Liberties Union recently sent a letter to the presidents of all public universities in Virginia urging them not to deny in-state tuition to students whose parents are illegal immigrants.
The memo from the Attorney General's office, issued March? 6, stated that "any person who is not lawfully present in the United States -- the parents in this case -- may not be domiciled in Virginia ... persons who are 'dependent students'... may be classified as in-state only if the parents are Virginia domiciliaries."
In effect, this statement qualifies all children of illegal immigrants as out-of-state students for tuition purposes at Virginia institutes of higher education?.
"A dependent whose parents are domiciled elsewhere is not categorically barred from establishing domicile in Virginia and being afforded in-state tuition," the memo also stated. "Virginia's tuition statutes permit any student ... to offer evidence to attempt to establish Virginia domicile independent of his parent's domicile."
McDonnell acknowledged in the memorandum that the criteria are strict.
"It is a difficult burden to meet, and instances of overcoming it will be rare," the memo stated.
Kent Willis, executive director of the ACLU of Virginia, said McDonnell's statement was sent in response to a query about a situation involving a U.S.-born high school student living in Alexandria who applied to the University but was told he might not be eligible for in-state tuition because his parents were not Virginia residents.
The ACLU's response to the Attorney General's office following this incident, according to Willis, noted that the ACLU believes denying in-state tuition to citizens whose parents are in Virginia illegally is a misinterpretation of commonwealth law.
The ACLU "is certain that the Attorney General's interpretation of the law regulating in-state versus out-of-state tuition is incorrect," Willis said, adding that the ACLU stated it is willing to represent students in court who are denied in-state tuition because of their parents' illegal status. He explained that the differing interpretations of the law are caused by different understandings of the term "domicile," a term, which in his opinion, does not require U.S. citizenship, only residency and intent to stay.
J. Tucker Martin, director of communications for the Attorney General, however, disagreed with the ACLU's claim and emphasized citizenship as a prerequisite of establishing domicile.
"The ACLU is wrong legally," Martin said. "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."
Willis, however, said he still believes the Attorney General's interpretation is "bizarre," noting that he did not know of any other state that has the same policy regarding children of illegal immigrants.
"The rules for establishing residency should apply the same whether or not the student's parents are here lawfully," Willis said.? "It is preposterous that a U.S.-born citizen who has lived in Virginia their whole life would be denied in-state tuition."
One of ACLU's primary concerns is that universities will view McDonnell's statement as a mandate.
"We felt the memo could influence colleges as they made their decisions about in-state versus out-of-state tuition and that it should be countered immediately," Willis said.
The ACLU, Willis said, hopes that colleges and universities in Virginia will either encourage use of "the loophole" in the Attorney General's memo -- which allows the children of illegal immigrants to establish Virginia residency independently of their parents -- or agree with the ACLU that the Attorney General's definition of domicile is wrong.
University President John T. Casteen, III, stated in an e-mail that "the Virginia Attorney General's office will respond on behalf of the Commonwealth, including the University of Virginia, as to the requirements of state law"
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