On July 19, 2004, a group of students at Kansas state universities and their parents filed suit in the U.S. District Court for the District of Kansas, seeking to overturn a provision of Kansas Statutes § 76-731a, a Kansas law that permitted certain undocumented aliens to qualify for in-state tuition. The law at issue provided that any individual (including undocumented aliens) who attended an accredited Kansas high school for three years and either graduated or earned a Kansas GED, qualified for in-state college tuition at Kansas state universities. In addition, undocumented and documented non-citizen aliens were required to sign an affidavit agreeing to upgrade their immigration status as soon as they are eligible. Plaintiffs, who were represented by the Federation for American Immigration Reform and private attorneys, alleged that the law unlawfully discriminated against U.S. citizens who are not Kansas residents in violation of the Equal Protection Clause of the Fourteenth Amendment and was preempted by federal immigration law, namely 8 U.S.C. § 1623. Plaintiffs sought declaratory and injunctive relief to enjoin application of the law to undocumented aliens.

Defendants moved to dismiss the case. Two groups, the Kansas League of United Latin American Citizens (KLULAC) and the Hispanic American Leadership Organization, Kansas State Chapter (HALO) were allowed to intervene as defendants in the case. Day v. Sebelius, 227 F.R.D. 668 (D.Kan. Feb 24, 2005). The intervening defendants, who were represented by the National Immigration Law Center, the ACLU, and META, Inc., also moved to dismiss the case.

On May 10, 2005, the District Court (Judge Richard D. Rogers) held a hearing on the motions to dismiss. Following the hearing, the parties submitted additional materials to the Court for its consideration. Based on that additional evidence, the Court converted the motions to dismiss to motions for summary judgment. The Court granted summary judgment to the defendants, finding that plaintiffs lacked standing to bring their Equal Protection claim and had no private cause of action for their statutory preemption claim under 8 U.S.C. § 1623. Day v. Sebelius, 376 F.Supp.2d 1022 (D.Kan. 2005) Plaintiffs appealed. The Court of Appeals affirmed, finding that plaintiffs lacked standing for all of their claims. Day v. Bond, 500 F.3d 1127, 1130 (10th Cir.2007). Plaintiffs' petition for rehearing and rehearing en banc was denied Day v. Bond, 511 F.3d 1030, 2007 WL 4376052 (10th Cir. Dec 17, 2007). The plaintiffs filed a petition for writ of certiorari, and on June 30, 2008, the U.S. Supreme Court denied the petition for certiorari. This case was closed.

Kristen Sagar - 03/02/2009


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