Immigration and College Admission
October 18, 2004
Recently, the United States District Court for the Eastern District of Virginia addressed the standing and constitutional issues surrounding state colleges denying admission to aliens who are actually or “perceived” to be illegal aliens in Equal Access Education v. Merten. This case was a challenge brought after the Virginia Attorney General released a memorandum on September 5, 2002, stating that illegal and undocumented aliens should not be admitted into Virginia Public Colleges and Universities. The memorandum urged reporting to the federal government the presence of illegal aliens on campus.
The suit was initially filed by Equal Access Education and five anonymous plaintiffs. After a determination that anonymity was not permitted, only two individual plaintiffs remained: Brian Marroquin and Fredy Vasquez. Marroquin and Vasquez sought to attend a public college in the state of Virginia. The Plaintiffs sued the College of William and Mary, George Mason University, James Madison University, Northern Virginia Community College, the University of Virginia, Virginia Commonwealth University and Virginia Tech. Plaintiffs claimed Virginia’s post-secondary educational institutions violated the United States Constitution’s Supremacy Clause, Commerce Clause, and Due Process Clause by denying admission to illegal aliens or persons they perceive to have an “illegal,” “unlawful,” or “undocumented” immigration status.
On February 24, 2004, the Court dismissed all constitutional issues except, “whether [the schools] admissions policies simply adopt federal standards, in which case they are not invalid under the Supremacy Clause, or instead create and apply state standards to assess the immigration status of applicants, in which case the policies may run afoul of the Supremacy Clause.”
The Court addressed the remaining issue on July 14, 2004. The schools argued that only a legal alien has standing to sue on the Supremacy Clause issue. The Court agreed, noting that the Supremacy Clause does not bar an educational institution from denying admission to illegal aliens. Therefore, the Court engaged in an analysis of the alien status of Marroquin and Vasquez. For each individual plaintiff, the Court determined that neither had standing to maintain the remaining Supremacy Clause issue. Accordingly, Equal Access Education lacked standing because its members, which Marroquin represented, did not have individual standing to sue.
The Court ultimately dismissed the case based on the lack of standing of the Plaintiffs. However, the Court stated that there is “no Supremacy Clause bar to these institutions’ offering or denying admission to illegal aliens, provided, with respect to the latter, that they use only federal standards in doing so and do not systematically or consistently misapply those standards.” The Court also was very careful to note that its opinion did not express what, if any, remedy a legal
alien may have if he or she was denied admission based on a defendant’s
misperception as to his legal immigration status. This remains on open issue
that may surface in future litigation.
For more information, e-mail Cynthia Brennan Ryan at
cynthia.ryan@hklaw.com or call toll free, 1-888-688-8500.
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