## Facts

- A Virginia Attorney General memorandum advised public colleges and universities that “illegal and undocumented aliens should not be admitted” and encouraged reporting suspected unlawful presence to federal authorities.
- Several Virginia public postsecondary institutions allegedly adopted or continued admissions practices that denied admission to applicants believed to be undocumented, without uniform statewide standards.
- Equal Access Education (an advocacy association) and individual undocumented students sued presidents and officials of multiple Virginia public institutions in their official capacities.
- Individual plaintiffs alleged they were denied admission or deterred from applying due to immigration-status-based admissions decisions.
- Plaintiffs sought declaratory and injunctive relief, alleging the policies conflicted with federal immigration law and violated the Supremacy Clause, Commerce Clause, and Due Process Clause.
- Defendants moved to dismiss on justiciability grounds (standing and ripeness) and for failure to state constitutional and preemption claims.

## Issues

1. Whether plaintiffs had Article III standing and whether the disputes were ripe given varying and sometimes uncertain institutional policies.
2. Whether federal immigration statutes regulating alien eligibility for certain state benefits preempt state public universities from denying admission based on undocumented status.
3. Whether the challenged admissions decisions impermissibly regulated or unduly burdened interstate or foreign commerce.
4. Whether denial of admission to undocumented applicants implicated a protected liberty or property interest or a fundamental right under the Due Process Clause.

## Decision

- The court granted the motions to dismiss as to most claims and defendants.
- The court held that the cited federal immigration provisions governing certain public benefits and tuition classifications did not preempt state admissions decisions regarding undocumented applicants.
- The court rejected the Commerce Clause claim, treating university admissions decisions as internal state educational governance with only indirect effects on commerce.
- The court rejected due process theories premised on a right to postsecondary education or an entitlement to admission.
- The court dismissed portions of the case for lack of standing or ripeness where alleged injuries were speculative, not traceable to particular defendants, or not tied to concrete, operative policies; limited claims connected to specific plaintiffs and specific institutional practices were allowed to proceed.

## Legal Principles

- Federal statutes restricting certain public benefits for nonqualified aliens and limiting in-state tuition benefits do not, without clearer congressional direction, preempt a state institution’s decision to deny admission to undocumented applicants.
- In the absence of an express federal mandate governing admission of undocumented students to public universities, states retain substantial discretion to set admissions criteria for publicly funded postsecondary institutions.
- University admissions decisions generally are not treated as state regulation of “commerce” for Commerce Clause purposes; indirect economic effects are insufficient to state a Commerce Clause violation.
- There is no fundamental constitutional right to postsecondary education; therefore, exclusions from public higher education are evaluated under rational basis review absent another protected classification or right.
- Procedural due process requires a protected liberty or property interest; discretionary admissions regimes typically do not create a “legitimate claim of entitlement” to admission.

## Conclusion

The court largely sustained Virginia public universities’ authority to consider undocumented status in admissions at the pleading stage, concluding that the federal immigration provisions invoked did not preempt admissions decisions, that the policies did not violate the Commerce Clause, and that undocumented applicants lacked a fundamental right or state-created entitlement to postsecondary admission; only narrowly pleaded, concrete disputes survived standing and ripeness scrutiny.


Equal Access Education v. Merten, 305 F. Supp. 2d 585 (E.D. Va. 2004)