Recent cases involving undocumented college student issues—MD, TX, and IL (or, Gallia est omnis divisa in partes tres)

If you follow these issues, writ large, they can take you over any number of collateral legal areas: recent examples include civil procedure and standing, birthright citizenship and the status of undocumented parents, employment law and professional responsibility/lawyer qualifications, and, of course, many benefits and education status matters. This updates readers on three cases that have largely flown under the radar, involving ballot measures, challenges to the legality of DACA, and construction of a trust that is funding scholarships. There are also other, related cases floating in the ether, to which I draw readers’ attention.

From Maryland comes Doe v. Maryland State Board of Elections, concerning the challenge to the state ballot measure “freezing” the 2011 Maryland Dream Act implementation, due to the requisite number of signatures calling for such a measure (which will occur in November 2012, next month). The case shows a number of technical and procedural issues. The case allows the ballot measure to proceed, so vamos a ver. But it is interesting for several reasons, in a case of first impression. It considered whether or not the non-voter undocumented plaintiffs could be designated as unnamed Doe plaintiffs (they were allowed to do so) and have standing (they could). It also refers to the plaintiffs as “undocumented” throughout. The end result, after appellate court’s per curium decision to uphold the circuit court, is that the ballot measure will be before voters. I have attached the circuit court decision, and when I get the final appellate written decision, I will post it as well.

In the District Court for the Northern District of Texas, on August 23, 2012, a group of 10 ICE agents and officers, led by ICE Council president Chris Crane, filed suit against DHS Secretary Janet Napolitano and ICE Director John Morton seeking an injunction against the Napolitano Directive of June 15, 2012, establishing DACA. The Governor of Mississippi has also joined since the original filing of Crane v Napolitano. I have attached the pdf. There are likely to be more intervenors.

In Illinois, a different kind of collateral attack on statutes concerning the undocumented has been filed, on August, 2012, in Ardash v. University of Illinois, also styled as Ardash Marderosian Trust v. Quinn et al. Illinois has passed state statutes that allow the state’s undocumented college students to be considered for certain private scholarships and to receive resident tuition if they meet the durational requirements. [Ardash v Governor Ardash Marderosian Trust v Univ. Ill. Docket] and The trustees of the Marderosian Trust have objected to the undocumented being allowed to receive funds from the scholarship funded by the original gift. (“The amount of the Scholarship varies depending on the amount in the Fund. Currently, the seven year average of the Scholarship endowment is approximately $21,539.70. The Scholarship amount for fiscal year 2013 is projected to be approximately $846.”) They invoke several statutes, including Sec. 1623, to argue that these funds cannot be awarded to the undocumented, who they argue would have been ineligible before because paying non-resident tuition would have made it unlikely that they would enroll at all; the gift predates the resident tuition statute. I have attached the complaint above as a pdf, and the case’s docket status as a Word.doc. It was originally filed as Marderosian v. Topinka, and was withdrawn.

I will continue to monitor other lost undocumented college doagies and residency matters making their way through the chutes: Hispanic Interest Coalition of Alabama (HICA) v. Governor of Alabama, 691 F. 3d 1236 (11th Cir. 2012) (state statute concerning undocumented resident tuition and effect upon refugees; mooted by revised statute)[Hispanic Interest Coalition of Alabama v Governor of Alabama] ; A.Z. v. HESAA (NJ will not appeal in NJ financial aid case concerning USC children and undocumented parents) and its companion case Cortes v. HESAA—the new regulations are at: ; Ruiz v. Robinson, 11-CV-23776 (appeal being considered in FL resident tuition case concerning USC children and undocumented parents); in Texas, IRCOT v. Texas, a challenge to the state resident tuition statute is still rattling around in state court. In a challenge to the NY state residency statute by a NJ US citizen non-resident who wanted to use the provision but who was not undocumented, I believe a settlement was reached in Strum v. SUNY, but I still need the confirmation: .

All of these are current, as best as can be known, on November 5, 2012.