The issue of public education benefits for students in this country illegally was the subject of a major ruling by the California Supreme Court earlier this month.
We'll be discussing that case, as well as reviewing the legality of airport searches and we'll hear the story of a real-life Grinch who tried to steal Christmas, all in this edition of our Legal Update.
Guest
Dan Eaton, San Diego attorney and These Days legal analyst.
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MAUREEN CAVANAUGH: The ruling was surprisingly unanimous, and surprisingly written by conof the Court's most conservative justices. We'll be discussing in case as well as reviewing the legality of airport searches, and we'll hear the story of a real life grinch who tried to steal Christmas, all in this edition of our legal update, I'd like to welcome my guest, Dan eaten, San Diego attorney, and These Days legal analyst. Dan, good morning.
DAN EATON: Good morning, Maureen.
MAUREEN CAVANAUGH: Now, the state Supreme Court heard a challenge to California education policy. That policy allows some students here illegally to pay only resident fees at California universities. On November 15th, the California Supreme Court happeneded down, as I say, a unanimous ruling by one of the Court's most conservative justices that upholds the law that allows what they called unlawful aliens to receive in state tuition. What can you tell us about the law the state Supreme Court was considering.
DAN EATON: Maureen, the state law in question makes anyone including what the Court called quote, unlawful aliens, close quote, eligible for resident fees or tuition from California state colleges and universities if the student met certain requirements. And one was that the student attended high school in California, for at least three years, 2, they graduated from a high school, a California high school, and then three, enrolled in a -- in a California state university or college, and fourth, if they were here lawfully, they were required to submit an affidavit or a sworn statement to the university or college saying that they were in the process of obtaining legal status or would do so as soon as they could. So that's what -- that's what the law required and this was actually chemicalinged.
MAUREEN CAVANAUGH: It was -- yeah, who chemicalinged the law.
DAN EATON: Well, it was challenged by out of state students who were -- out of state Americans who claimed that, well, wait a minute, we have to pay nonresident tuition fees, and what you're doing is giving unlawful aliens issue again using the Court's term, at our expense. And that violates a federal law which says that you simply cannot do that. It also, by the way, violates another federal law, and it violates the constitutional prejudices and immunities that we enjoy as American citizens.
MAUREEN CAVANAUGH: So on what specific basis were they challenging this law.
DAN EATON: Well, Maureen, the main basis of a congressional law that said that it barred, quote, an alien who is not lawfully present in the United States, close quote, from being eligible, quote, on the bases of residence within a state or political subdivision for any postsecondary benefit. That's lawyer talk for college. Unless a nonresident American citizen was eligible for the same benefit. Which was challenged more broadly of course, under the constitution article six of the U.S. constitution which means that federal laws -- it's the supremacy clause which means that federal law Trumps state law when it's to the contrary. But anyway, so Congress passed this law that said that unlawful aliens could not get this benefit if it wasn't available to out of state Americans. Well, obviously out of state Americans don't get in state tuition, generally.
MAUREEN CAVANAUGH: Sure.
DAN EATON: And therefore this was the basis of the challenge. They said, Congress passed this law, your law allowing unlawful aliens under certain conditions to get benefits is inconsistent with the federal law. And therefore, that law is invalid. And the Court of Appeal, the lower intermediate appellate court in California agreed with those challenging the law, Maureen.
MAUREEN CAVANAUGH: Well, on the face of it, it seems like an awfully good argument. So what did the California Supreme Court rule.
DAN EATON: Well, the California Supreme Court speaking through one of its most conservative justices, ming chin, who you pointed out, said no, the federal law said that you can't extend those kinds of benefits, meaning the in state tuition or fees, on the bases of residents to unlawful aliens or undocumented immigrants. That's what the California -- that's what the federal law said, and the California law doesn't violate it. Why? The California Supreme Court unanimously said that these benefit it is under the state law were not being extended on the bases of residence. They were being extended on the bases of attending a California high school for three years and graduating from a California high school. That has -- that is not related to basis, it doesn't offend the federal laws, and therefore, it is not constitutionally invalid.
MAUREEN CAVANAUGH: Okay. So to translate this, it's not just because the undocumented student is in California, but they also have to have all of these different hurdles. They have to have attended high school here for three years and graduated, and also applied and been admitted to a school, a public university in California, and have attempted to obtain legal residence.
DAN EATON: Right. And submit aid sworn state of that's exactly right. That that is not conferring these benefits on the basis of residence. That's what the federal law said. And there's another federal law that was also the basis of the challenge Maureen that said you cannot extend benefits to unlawful aliens if -- unless the law, quote, affirmatively provides for some eligibility, close quote. Or on the face of it, the state law was very clearly that it did affirmatively provide such benefits, resident fees on undocumented immigrants. So that federal law, anyway, passed muster. But the harder one was this other federal law that prevents you from extending benefits in state tuition on the bases of residence to unlawful aliens and the California Supreme Court said, as you pointed out, this isn't on the bases of residence of it's on the bases of something else entirely.
MAUREEN CAVANAUGH: Now, did the Court extend that to the IDEA that they were people besides undocumented immigrants who could qualify for this exemption?
DAN EATON: Well, this was an important point that they made, Maureening in fact, the regents informed the California Supreme Court that the majority of students who qualify for this exemption are in this country lawfully. And so who are these people that they're thinking about? One are people who live in adjoining states, such as Arizona, which in itself has a very fine public university. Who live in adjoining states but are permitted to attend high school in California. The second group are boarding students whose parents are domiciled in other states. The third are students who attended high school here in this state, moved out of California, lost their residence, and then want to come back.
MAUREEN CAVANAUGH: I see.
DAN EATON: So those are the kinds of folks they had in mind. And the fact is, the majority of the students taking advantage of this particular exemption are here lawfully.
MAUREEN CAVANAUGH: Now, the people who challenged the in state tuition being granted to undocumented students, they had a big weapon in their pocket by a report from a congressional committee that had approved the measure, and they specific said that the federal law provides that illegal aliens are not eligible for in state tuition at public institutions of higher education. That seems pretty clear. So how did the California Supreme Court deal with that.
DAN EATON: It seems pretty clear right on the face of it. The California Supreme Court said, yes, that is what the congressional committee report said. But it's at odds with the plain language of what Congress actually in facted.
MAUREEN CAVANAUGH: It's not in the law.
DAN EATON: Well, it's not in the law. That's right. And the congressional committee's interpretation of the luis not in the law, and therefore the language of the law applies and the erroneous or expansive interpretation of the law does not. And that's what the California Supreme Court said it was bound to interpret. And under that INTERPRETATION, the law passed mustard, because the benefits that the California legislature extended were not on the basis of residence, which is what the law -- the federal law, anyway, addressed.
MAUREEN CAVANAUGH: And also challengers accused the California legislature, they said they in facted the state law to get around federal law. But the high court, the California high court said that didn't matter either. Why not.
DAN EATON: No, they said -- you're right. That's exactly what they did. But the point is that the question was whether -- not the motive in passing that law, which clearly was done as a run around the federal law, the question is when -- and this is what the Court needed to address, the California legislature had done so in a way that was effective. The core said, yes, it was effective, so it didn't matter. If they in fact did pass the law to make an end run around the federal law, the question for the Court system whether they succeeded. And theicalical Supreme Court said that they did.
MAUREEN CAVANAUGH: Now, those supporting and opposing the validity of the measure offered numerous policy reasons why the Court should uphold the law or why they should strike it down. Did the California Supreme Court deal with those policy issues at all?
DAN EATON: Yes, justice chin said we don't make policy here. That's really not our job. Our job is to look at the language of the statute and to apply it according to settled legal principles of that's what we do here. We appreciate the policy arguments both for and against this particular measure, but they have nothing to do with whether the particular law passes constitutional mustard in light of the federal law, that was the main bases of the challenger's challenge to the law.
MAUREEN CAVANAUGH: And they were specifically looking at the letter of the law in this case. Exactly what was written in the law.
DAN EATON: Well, that's right. They were looking exactly at the letter of the law, and also with respect to the constitutional chemicals on privileges and immunities, past Supreme Court decisions interpreting that clause in a way that was not helpful to those who are challenging this particular law.
MAUREEN CAVANAUGH: Now, as part of the language of this ruling, the California Supreme Court said it would use the term unlawful alien throughout its opinion rather than the term it is illegal alien or undocumented immigrant. Why did they choose unlawful alien?
DAN EATON: Maureen, they said, that, look, we can see where illegal alien has become a pejorative or a slur. But undocumented immigrant is a -- is euphemistic or sugar coated, and we're not going to use that either. So we've gotta come up with an alternative. And what the California Supreme Court said, is it looked at other federal laws, and it said, look, there's other language in some other federal laws that refers to them as, quote, a person without lawful immigration status, close quote. Well, that's just too long to keep repeating said the California Supreme Court. So we're going to shorten it and call them unlawful aliens. And that is the term they used throughout their opinion of it was an opinion, by the way, that was signed by justice Carlos Moreno who did not separately take issue with the use of that language.
MAUREEN CAVANAUGH: Interesting. So are those challenging the law planning an appeal.
DAN EATON: Yeah, they're heading to the Supreme Court. Of course, the Supreme Court has wide discretion to decide whether to accept the case. But yeah, they said they are going TO appeal to the Supreme Court. And there are federal questions, because the issue is whether the state law is consistent with the federal law, so the Supreme Court may very well accept the case of we'll know in a few months.
MAUREEN CAVANAUGH: Now, one of the big of the stories this holiday season is the level of screening going on for air line passengers. There are loud protests against the use of body scan devices and extensive pat-downs by TSA employees of it's made some of us curious about the legality of bodily searches at the airport. So Dan, do passengers have any kind of constitutional right to object to being searched before boarding a plane.
DAN EATON: Well, they generally don't. In fact, I read David car's column in the New York Times yesterday about the story that wasn't, that is to say, there were these protests but it didn't amount to much, and you had a bunch of lowly reporters in airports looking for people who were actually protesting. But the bottom line is, no, generally they don't. The fourth amendment to the United States constitution says that we are protected against unreasonable searches and seizures by our government, Maureen. But as far back as 1973, the United States court of appeals for the ninth circuit which hears appeals from the federal courts from California and other states specifically said that airport screening searches are constitutionally reasonable even without suspicion that someone might be carrying something illegal, because they serve the valid purpose of preventing passengers from carrying weapons or explosives onto an airplane and preventing hijackings. Remember, not with standing the cataclysmic events of 911, there were airplane hijackings even before that, not with the tremendously and widespread traumatic sequences that 911 had, but still, this has been a policy for some time. And at least for the last roughly 40 years, the ninth circuit has had it is constitutionally acceptable.
MAUREEN CAVANAUGH: Now you found in your searchings, speaking of searches, you found a case from a few years ago that relates to airport searches, the ninth circuit decided whether a passenger who passed through an initial screening could block security officials from searching him further simply by saying he changed his mind, and he decided not to get on the plane at all. So what can you tell us about that case?
DAN EATON: Maureen, this was a case from 2007 out of Hawaii involving a passenger by the name of Daniel Akay. And what happened was he went to Honolulu International airport intending to board a plane to Kona Hawaii. Of the problem was, he did not have a government issued ID. So on his boarding pass, they noted no ID. Heave passed through the magnetometer, and clear, that's the first level of screening that everyone's familiar with, walking through the magnetometer. Of and what happened though, because he had no ID written on his boarding pass, he was automatically subject to the secondary level of screening, which by now is familiar to all of us, which meant that you have to sit in a chair in a roped off area and be subjected to a Juaneding by a hand held magnetometer. And that -- whatever he had on his person, on his body triggered the magnetometer, the hand hel mag mag. And so they decided to subject him ask ask him what was in his pockets. Maureen, what happened was he lied and said he didn't have anything in his pockets am even though it was obvious from a bulge that he did have something in his pockets. So they asked him to take it out, he took out some car keys, there was still a bulge, then eventually they had him take out something else. And that something else was of a methamphetamine pipe.
MAUREEN CAVANAUGH: Right, right.
DAN EATON: During this process, though, Maureen, he said, you know what? During this process, he said I don't want to go on the airplane anymore. I've decided to leave the airport.
MAUREEN CAVANAUGH: And he thought that that would stop the search right there because he was gonna leave. Of.
DAN EATON: I'm not going on the airplane, so let me go. Of and they said, no, we're going to continue. And they did continue the search. And they found not only the pipe, which eventually came from his pocket, but also some methamphetamine. Eventual leave, he was, in fact, convicted of intent to -- possession with intent to distribute 50 grams or more of methamphetamine, he plead guilty because he cop fessed that he had the methamphetamine but he did so, he plead guilty with the understanding that he would have the right to appeal. And that's exactly what he ended up doing.
MAUREEN CAVANAUGH: And he appealed on the idea that the TSA employee should have stopped the search what he said, you know, aye decided not to make this trip after all. I'm not gonna get on the plane, and so you don't have to search me anymore.
DAN EATON: That's right, Maureen, because the argument had been that under ninth circuit pass rulings or precedent, a consent was required. And if you evoked your consent affirmatively to the search, it should stop. At least that's what Mr. Akay thought. Well, an expanded panel of the ninth circuit, an en banc panel as we call it, looked at it and said, no, even though you changed your mind, the search was still reasonable, and your conviction paced on your plea was going to be upheld. That's what they said.
MAUREEN CAVANAUGH: How did they come to that conclusion.
DAN EATON: Well, this is what the Court said. It said we cannot allow passengers in the quote, post 911 world, close quote, to revoke concept. Why? Because according to the Court, to allow a potential passenger to stop an ongoing search simply by 28ing officials he had changed his mind about getting on the plane, and now I'm quoting from the Court's opinion, would afford terrorists are multiple opportunities to attempt to penetrate airport security by attempting not to fly on the cusp of detection until a vulnerable portal is found. Once a person elects to enter an airport secured area way by walking through the metal detector, he or she is proper he subjected to TSA screening procedures.
MAUREEN CAVANAUGH: Now, from my understanding, the minority opinion on this did not necessarily subject to the ruling, the essence of the ruling. But they objected to this reference to 911. Why?
DAN EATON: That's right. They said, what does 911 have to do with this at all? The bottom line is that consent is not needed. What the minority, the three judges who said the Court of Appeal majority decision basically got it right, was they said, quote, by relying on the in my opinion 11 factors, the majority unnecessarily makes it its solid holding dependent on the existence of a current terrorist threat, inviting future challenges to the constitutionally -- constitutionality of searches under similar circumstances after the current terrorist threat has passed. They said Mr. Akey wasn't a terrorist, he wasn't carrying a weapon, but still his search was reasonable. Of the post 911 reference is a distraction.
MAUREEN CAVANAUGH: And yet the majority says we live in the real world.
DAN EATON: That's right.
