Judge Rejects Illegal Aliens' Student Status : Admissions: Ruling says undocumented people should not be counted as California residents when calculating tuition costs. The decision is stayed to allow for appeal.

By TRACY WILKINSON

May 31, 1990 12 AM PT

TIMES STAFF WRITER

In a case that could affect university policy statewide, a Superior Court judge ruled Wednesday that students who are undocumented aliens should not be counted as California residents when calculating their tuition costs.

The ruling came in a lawsuit brought by a former UCLA employee who contends that the state has lost millions of dollars by allowing illegal aliens to pay in-state tuition--a claim university officials deny. David P. Bradford, 35, alleges he was forced to resign from UCLA in 1985 for refusing to illegally enroll undocumented students.

Judge David P. Yaffe’s ruling Wednesday contradicted an earlier court order that has dictated university tuition policy for five years.

With that in mind, Yaffe immediately stayed his decision for 10 days to allow attorneys representing the University of California Board of Regents to appeal.

Charles Pereyra-Suarez, attorney for the regents, warned the judge that the new ruling sets a “very, very poor precedent.”

“It puts the university between a rock and a hard place,” he said.

Since 1985, all public universities and colleges in California have followed an order issued by the Alameda County Superior Court that requires campus registrars to consider the residency applications of undocumented alien students “in the same manner and on the same terms” as U.S. citizens.

Under that order, residency and federal immigration status were considered sepa rate and distinct issues. Students who were in this country illegally but who lived in California could be eligible for cheaper in-state tuition and some state financial aid.

But citing a 1984 opinion on the state Education Code written by Atty. Gen. John K. Van de Kamp, Yaffe favored Bradford’s motion that “undocumented aliens or illegal aliens are not legal residents for tuition purposes” and thus “may not be processed as such and may not be given preferential (state resident) tuition rates.”

Pereyra-Suarez argued that the attorney general’s ruling was superseded by the Alameda County court and should have no binding influence on current policy.

California residents pay, on average, $1,633 for a year of classes at a state university. Out-of-state students pay an average of $7,432 per year, according to a spokesman for the Board of Regents.

The case still must go to trial before all issues are resolved, but Bradford’s attorney, Richard L. Knickerbocker, said he was confident the university system would be forced to change its policy.

“It really is a win,” Knickerbocker said of Wednesday’s judgment. “This makes the determination that the policy (of considering undocumented students as residents) is illegal.”

Pereyra-Suarez declined to comment further on the potential impact of Yaffe’s decision, saying only that he would discuss the possibility of appeal with the Board of Regents.

Emerging from Wednesday’s hearing, Bradford conceded that it did not seem likely he would get back his UCLA job, which involved processing student applications and determining residency status.

But he said he hoped he could overturn the policy, which he maintains cheats U.S. citizens and “lawful aliens” out of slots in state schools, housing, financial aid and other benefits.

“It is discriminatory against people who are here legally . . . that deserve it . . . that pay taxes,” he said.

Bradford, whose suit has been backed by the conservative Santa Monica-based American Assn. of Women, claims the state has spent somewhere between $1 million and $13 million over the last five years in subsidizing the education of illegal aliens. Bradford, who currently works as a judicial assistant to the family law court of Los Angeles County Superior Court, bases his estimate on the number of illegal aliens he identified while processing applications.

David Birnbaum, university counsel, said there was “no basis” for the claims that the policy has cost the state millions of dollars. He said the number of students who fall into the category of undocumented immigrants who are treated as in-state residents is very small. Neither he nor the board spokesman could immediately provide numbers.

But Birnbaum emphasized that illegal aliens are not given preferential treatment but are required to show residency “the same way as everybody else.”

Immigrant advocates, meanwhile, were stunned by Yaffe’s ruling.

Peter Schey, director of the Center for Human Rights and Constitutional Law, said there was ample precedence for treating foreign-born people who entered the country illegally as state residents for the purpose of certain state benefits, particularly if they have lived in California for a number of years and indicate they intend to stay here.

He predicted Yaffe’s decision would not stand the test of appeal.

“It really just turns logic on its head,” said Schey, who successfully argued a landmark case in 1982 that established the right of children of undocumented workers to elementary education in Texas.

“The university is not in a position to become the second line of defense to the Border Patrol,” he said. “They have neither personnel nor expertise to evaluate the immigration status of every student or potential student. It would take an army of immigration agents to figure that out.”

BACKGROUND

For five years, the state’s universities and colleges have followed a court order that required registrars who were computing tuition costs to consider the residency applications of illegal aliens in the same manner they considered such applications from U.S. citizens. Under the policy, students who were in the United States illegally but who were residents of California were eligible to pay in-state college costs. It represents a significant savings: California residents pay $1,633 a year; out-of-state students pay an average of $7,432 per year. A new Superior Court ruling could change that policy, if upheld.