Almost four years after it went into effect, California’s law allowing some illegal immigrants to pay in-state tuition at UC, CSU, and community colleges is being challenged in a class action lawsuit.

The lawsuit, filed today in Yolo County (home to UC Davis), argues that the 2002 law (AB 540) violated pre-existing federal law that sought to keep states from charging in-state tuition rates to students who are not U.S. citizens.

Mike Brady, one of the attorneys who filed the lawsuit on behalf of 42 college students and parents (Martinez vs. Regents of the University of California, et al.), claims that 60,000 out-of-state students have been overcharged… because, as he says, the federal law stipulates that any state granting in-state tuition status to undocumented students must also give that same tuition break to out-of-state students.

But university officials say their information shows the policy is not used by a large number of students. A UC spokeswoman said that’s because, in part, the law restricts participation to students who also attended a California high school for 3 years and who file an affidavit saying they intend to apply for legal immigration status. She estimated about 1,000 students use the policy every year… and she says a full 75% of those students are legal U.S. citizens whose family situations left their tuition status in limbo (example: a California family moves to another state just before its senior child graduates from high school).

So why now, almost four years after it went into effect, is the lawsuit filed? Part of the answer may be as simple as the one the speakers at today’s Capitol news conference: former U.S. Representative Brian Bilbray.

Bilbray, who represented part of the San Diego area in Congress for 6 years, says that when he moved his family back to California, he discovered his college-age children would not be eligible for in-state tuition, having attended high school in Virginia while he served on Capitol Hill. In fact, the GOP lawmaker, his son, and his daughter are now all plaintiffs in the lawsuit.