If there’s not a clear answer, meaning that it hasn’t been clarified in the courts, then I’d argue that means you go by the letter of the law, which to my mind is pretty clear. Seems to me Perry and his legislature are trying to do an end run around federal law. I have HAD IT with pols treating the Constitution like toilet paper. And I don’t give a tinker’s dam which party they belong to.
I guess to some degree the Courts have responded in two cases that made it to their venue.
California: Students paying out-of-state tuition attending California schools filed a lawsuit in the Yolo County State Superior Court (Martinez v. Regents, No. CV 05-2064), claiming that education officials violated the IIRIRA by offering in-state tuition to unauthorized immigrant students while continuing to charge U.S. citizens out-of-state tuition rates. The complaint was filed against the University of California, California State University, and state community college systems, who offered in-state tuition to unauthorized immigrant students following Assembly Bill 540, enacted in October 2001. On October 6, 2006, Judge Thomas E. Warriner upheld the schools' decision to grant eligibility to unauthorized immigrant students for in-state tuition. In September, 2008, a California appeals court reinstated the lawsuit and returned it for consideration in Yolo County Superior Court. In November, 2010, the California Supreme Court upheld the state’s method for providing in-state tuition to unauthorized immigrant students and ruled it did not conflict with federal law. An appeal was filed with the U.S. Supreme Court. On June 6, 2011, the Supreme Court declined to review the ruling.
Kansas: A claim was brought to the Kansas District Court by a Missouri resident denied in-state tuition while unauthorized immigrant students were granted in-state tuition benefits, arguing that this violated IIRIRA (Day v. Sibelius, No. 04-4085/Day v. Bond, No. 07-1193). The Kansas District Court dismissed the claim for lack of standing. The decision was upheld in the U.S. Court of Appeals for the Tenth Circuit. On June 23, 2008, the U.S. Supreme Court declined to review the federal review court’s ruling.