Equal Access Educ. v. Merten

Decision Date24 February 2004
Docket NumberNo. CIV.A. 03-1113-A.,CIV.A. 03-1113-A.
CourtU.S. District Court — Eastern District of Virginia
PartiesEQUAL ACCESS EDUCATION, et al., Plaintiffs, v. Alan G. MERTEN, et al., Defendants.

Luis Alberto Parada, Catherine Rebekkah Rowland, David M. Orta, Yohai Baisburd, Jorge Almonte, Arnold & Porter, LLP, Washington, DC, Tisha Rae Tallman, Jose Gonzalez, Mexican American Legal Defense and Educational Fund, Atlanta, GA, for Plaintiffs/Movants.

William Henry Hurd, James V. Ingold, Jerry Kilgore, Alison Paige Landry, Maureen Fay Riley Matsen, Andrew Cameron O'Brion, Office of the Attorney General, Richmond, William Eugene Thro, Christopher Newport University, Newport News, for Defendants/Respondents.

MEMORANDUM OPINION

ELLIS, District Judge.

In this case of first impression, plaintiffs claim that various of Virginia's post-secondary educational institutions violate the Constitution's Supremacy, Commerce, and Due Process clauses by denying admission to illegal aliens or to persons they believe to have an "illegal," "unlawful," or "undocumented" immigration status. Threshold dismissal motions by all defendants raise a variety of dispositive issues, which are addressed here.

I.1

The impetus for this suit and a focus of the complaint is the Virginia Attorney General's September 5, 2002 memorandum to all Virginia public universities and colleges, and to the Executive Director of the State Council for Higher Education in Virginia, stating that "the Attorney General is strongly of the view that illegal and undocumented aliens should not be admitted into our public colleges and universities at all ...." See Commonwealth of Virginia Attorney General Memorandum, Immigration Law Compliance Update at 5 (Sept. 5, 2002). The memorandum also "strongly encourages school officials and all public employees in higher education to report [to the Immigration and Naturalization Service (INS)] facts and circumstances that may indicate that a student on campus is not lawfully present in the United States." Id. at 11. A reporting form for this purpose was attached to the memorandum to be returned to the Virginia Attorney General.

Plaintiffs further allege that the Virginia Attorney General's Office did not issue any guidelines or procedures for Virginia public universities and colleges to follow in order to implement its recommendation to deny admission to students based on immigration status. Indeed, plaintiffs point out that the Attorney General's memorandum admits "as a strictly legal matter, [that] institutions have broad discretion to decide what documentation they will request of applicants, and how they will treat applicants who are not lawfully present in the United States." Id. at 5. Finally, according to the complaint, the widely publicized memorandum caused Virginia's leading colleges and universities to implement, or to continue to enforce, admissions policies that deny admission to illegal aliens and to applicants believed to have an illegal or undocumented status.2

Given the memorandum's nature and its role as the impetus for this action, the parties' identities are understandable. There are now three remaining plaintiffs,3 one association and two individuals, all of whom claim to be adversely affected by the admissions policies of Virginia's colleges and universities relating to applicants who are, or who may be believed to be, illegal aliens.

Plaintiff Equal Access Education (EAE) is an unincorporated association whose mission is (1) to promote the welfare and education of all minority and immigrant individuals in the Commonwealth of Virginia; and (2) to obtain access to post-secondary education for all individuals, including aliens with undocumented status. According to the complaint, EAE's members include current and former Virginia public high school students and Virginia community college students who are not United States citizens or lawful permanent residents and whose immigration status is, or may be perceived to be, illegal or undocumented. Some EAE members are alleged to be students who graduated from high school in 2003, or who expect to graduate in 2004, and whose exceptional grade point averages and SAT or PSAT scores place them within acceptable academic ranges for admission to the post-secondary educational institutions referred to in the complaint, namely George Mason University (GMU), James Madison University (JMU), Northern Virginia Community College (NVCC), the University of Virginia (UVA), Virginia Commonwealth University (VCU), Virginia Polytechnic Institute and State University (Virginia Tech), and the College of William and Mary (William & Mary). Some EAE members intend to seek admission to these Virginia institutions or to transfer to these institutions from a Virginia community college, but allegedly will be denied admission, or are currently unable to apply to or attend these institutions, because of policies denying admission to students who are not United States citizens or lawful permanent residents and who are illegal aliens or who may be believed to have an "illegal," "unlawful," or "undocumented" immigration status. Yet other EAE members, it is alleged, have already been denied admission based on their actual or perceived immigration status.

Plaintiff Brian Marroquin is a high school senior who is neither a United States citizen nor a lawful permanent resident, and whose immigration status appears to be illegal. He was brought to this country by his parents as a young child and will now graduate from high school in June 2004, after which he intends to pursue a college education in Virginia. And because his high grade point average and SAT scores fall within acceptable academic ranges to attend GMU, JMU, NVCC, UVA, VCU, Virginia Tech, and William & Mary, he has applied or will apply to these institutions for admission, but believes that, in accordance with the Virginia Attorney General's memorandum, they will deny him admission based on his immigration status. He also alleges he is fearful that, in accordance with the memorandum, college and university officials will report individuals they suspect to have an "illegal," "unlawful," or "undocumented" immigration status to the Virginia Attorney General and the Bureau of Immigration Control and Enforcement (BICE), the successor to the INS. Marroquin is proceeding in this action by his father, Jorge Marroquin, as next friend, pursuant to Rule 17, Fed.R.Civ.P.

The second individual plaintiff is Freddy Vasquez, who came to the United States as a minor to be with his parents, who were already here. Like Marroquin, Vasquez is neither a citizen nor a lawful permanent resident of the United States. Unlike Marroquin, however, the record reflects that Vasquez enjoys Temporary Protected Status (TPS) and thus he currently resides in the United States legally.4 Vasquez graduated from a Virginia public high school in 2003 and has taken the SAT. According to the complaint, Vasquez has an exceptional grade point average and intends to pursue a post-secondary education in Virginia. He falls within acceptable academic ranges to attend GMU and Virginia Tech. He applied to both and was denied admission. He alleges his applications for admission to GMU and Virginia Tech were rejected because of his immigration status. In this respect, Vasquez alleges that he would like to attend GMU or Virginia Tech, but is precluded from doing so because of admissions policies that, upon information and belief, deny admission to students believed to have an "illegal," "unlawful," or "undocumented" immigration status. Vasquez alleges that he will continue to be denied admission as long as GMU and Virginia Tech continue to enforce this admissions policy.

Defendants are the Presidents, Rectors, and Boards of Visitors of GMU, JMU, NVCC, UVA, VCU, Virginia Tech, and William & Mary, who are sued in their official capacities. According to the complaint, these individuals are responsible for establishing and applying "rules and regulations for the acceptance of students" to their respective institutions pursuant to Va.Code § 23-9.6:1. Plaintiffs allege that, in accordance with the Attorney General's memorandum, each of these Virginia post-secondary educational institutions has adopted an admissions policy that denies admission to students who are not United States citizens or lawful permanent residents, and who are illegal aliens or believed to have an "illegal," "unlawful," or "undocumented" immigration status, but are otherwise eligible for admission. Plaintiffs further allege that these institutions have instructed their respective employees to enforce the admissions policies challenged here.

Plaintiffs allege that defendants' admissions policies and the enforcement of those policies denying admission to students based on actual or perceived immigration status, coupled with the recommendations of the Virginia Attorney General to report students based on their perceived "illegal," "unlawful," or "undocumented" immigration status, have precluded and/or will preclude Marroquin, members of EAE, and many otherwise qualified persons from applying to and/or attending the defendant institutions. Plaintiffs further allege that other persons, including Vasquez and members of EAE, have applied to these institutions but have been denied admission, and will continue to be denied admission, based on their actual or perceived illegal immigration status. Further, plaintiffs allege that these individuals are subjecting themselves to possible reporting to BICE and the Virginia Attorney General by applying to these institutions.

On the basis of these factual allegations, plaintiffs' complaint consists of three constitutional claims and a request for declaratory and injunctive relief. Count I is brought under the Supremacy Clause of ...

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