Nebraska’s latest battle over illegal immigration is about to unfold in the town of Fairbury, where residents number less than 3,700 and foreigners are only a few dozen.
It is in this Jefferson County seat — where the legendary Wild Bill Hickok is said to have begun his infamous gunslinging career — that six taxpayers have filed a lawsuit asserting that Nebraska’s 2006 law granting in-state tuition rates to certain illegal immigrants violates federal law and is an improper use of their tax dollars.
The lawsuit names the University of Nebraska Board of Regents and other state college boards as defendants.
The Fairbury plaintiffs are represented by Kansas City, Mo., law professor Kris Kobach, who is building a national reputation as an opinion leader and architect of some of the toughest immigration laws in the country, including those in Arizona and Fremont, Neb.
The plaintiffs also are his in-laws and their neighbors.
So far the Nebraska law — designed for youths whose parents brought them to the U.S. illegally but have attended at least three years of a high school in Nebraska — has been used by a few dozen students.
It has been dogged by controversy. Gov. Dave Heineman unsuccessfully vetoed the law before it went into effect in 2006. A few legislators have since tried to repeal it, and it’s been a contentious issue in several political races.
So why has the issue now come to Fairbury, a town that doesn’t even have a local college campus or an industry that attracts immigrants?
Kobach said he has been contacted by frustrated taxpayers statewide for years. He spends a lot of time with family and friends in Fairbury, he said, so it is “convenient” for him to argue the case there.
His wife, Heather, is a Fairbury native. Her parents, Doyle and Brenda Mannschreck, are plaintiffs in the lawsuit. Other plaintiffs are Bruce and Patti Swartz, relatives of the Mannschrecks, and Brad and Danessa Weatherl, the Mannschrecks’ neighbors.
Kobach sees no advantage to battling in a Jefferson County courthouse, as all district judges should apply the same case law. He said he could have filed the lawsuit in a different county, as its outcome affects all Nebraska taxpayers.
“There has been a great clamoring to overturn this law,” said Kobach, who also is running for Kansas secretary of state. “Literally, I have been receiving e-mails and phone calls from all over Nebraska since 2006.”
Contacted at home, Doyle Mannschreck said the in-state tuition issue came up at the dinner table with Kobach.
“We just said, ‘Why don’t we just do it? We’re taxpayers.’ We never thought it was right from the beginning.”
Mannschreck, 62, said he and his wife paid to put all three of their daughters through the state university system. He doesn’t think the state should be spending any money to give illegal immigrants in-state tuition rates.
The retired farm equipment dealer said he hasn’t heard any uproar about illegal immigration in the town where he has lived for 50 years. His wife is a speech pathologist.
“They don’t talk about it,” Mannschreck said, “but everybody thinks: ‘What part of illegal don’t you understand?’”
The essence of the Nebraska case is similar to lawsuits filed by Kobach in two other states. The Kansas challenge was defeated in federal court; California’s is before that state’s Supreme Court. (Texas also has a lawsuit outstanding, but Kobach is not involved in that one.)
Kobach argues that the states are violating a 1996 federal law that prevents them from offering in-state tuition rates to illegal immigrants unless the state extends the same benefit to out-of-state U.S. citizens.
Interpretation of federal law is in dispute.
Michael Olivas, a University of Houston law professor who is advising the Nebraska university lawyers on the matter, said federal law allows states to draft their own policies.
A 2010 report prepared for Congress by the Congressional Research Service said some states went around the 1996 law by basing eligibility for the lower tuition on criteria that do not explicitly include state residency.
In all, 10 states have laws like Nebraska’s, which extends in-state tuition to students who graduate from area high schools after attending for at least three years. Noncitizen students otherwise pay a higher tuition rate.
For example, undergraduate tuition and fees this year at the University of Nebraska-Lincoln amount to about $7,300 for in-state students and about $19,000 for nonresidents.
The students must pledge to seek citizenship at their first opportunity.
So far, 38 students are using the law to attend college in Nebraska, officials have said.
By contrast, Texas higher education records show that about 12,000 college students benefited in a recent semester from that state’s law granting in-state tuition.
Kansas was the first state whose law was challenged. Kobach lost that battle when the federal court determined that the law did not harm the out-of-state college students trying to overturn it.
He’s employing different tactics in Nebraska. The plaintiffs are taxpayers, and the case was filed in state court. Taxpayer standing is allowed in Nebraska, Kobach said, to challenge the illegal spending of tax dollars.
University of Nebraska lawyer John Wiltse said the Nebraska colleges are asking that the case be thrown out based on their contention that the six Fairbury taxpayers don’t have standing or face harm by the law.
The 2006 law, he said, simply extends to illegal immigrant teens the same tuition rate granted to fellow high school graduates. It does not open the door to other aid.
Of Kobach, Wiltse said: “He goes wherever he thinks he can go, wherever he can get a forum to make his views known on immigration law. To try and drive a wedge between these students and the rest of the population is something I am not inclined to let him get away with.”
Kobach also works with the Immigration Reform Law Institute, the legal arm of Federation for American Immigration Reform (FAIR). He represented petitioners in Fremont in their fight to adopt an ordinance banning the housing and hiring of illegal immigrants. More recently, the City of Fremont hired Kobach to defend it against a legal challenge to the voter-approved ordinance.
Kobach said the legal challenge to Nebraska’s law was “not something I catalyzed or caused.”
Other states and congressional representatives are watching the case, assigned to District Judge Paul W. Korslund.
The next hearing date on the lawsuit, filed earlier this year, has not been set. But the judge has requested more written information from Kobach by Sept. 13.
Lawyers for the defendants — which include nearly 90 people who govern the University of Nebraska system and other state college governing bodies — have until Oct. 4 to respond.
Korslund’s options include throwing out the 2006 law or throwing out the lawsuit.
For now, the case hasn’t created much of a stir in the town, about an hour’s drive southwest of Lincoln.
Joseph Parker, Fairbury city administrator, said he hadn’t even heard about the lawsuit until a reporter asked him about it last week.
Neither has he heard much chatter about illegal immigration. He said he only occasionally sees a Hispanic walking around Fairbury, where the U.S. Census count in 2000 showed 19 foreign-born residents.
Parker said he does sense frustration about the ailing economy, and assumes that the six Fairbury plaintiffs are protecting their tax dollars.
“Maybe it’s kind of a burr under their saddle,” he said. “They’re just looking out for their own interest, I guess, and how their tax money is going.”
Contact the writer:
444-1224, cindy.gonzalez@owh.com
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