The 10th U.S. Circuit Court of Appeals in Denver reached the same conclusion. In declining to review the students and parents' appeal last week, the Supreme Court gave no explanation.
Kobach said such a decision is not surprising because the high court considers about 1 percent of the appeals filed with it and concentrates on resolving conflicting rulings from lower courts.
``Once we get to the merits of the issue, I'm confident that we'll win at the end of the day,'' Kobach said.
While said the high court's action makes a federal lawsuit unlikely, Kobach said he believes some aggrieved students — such as foreign students who have a valid U.S. visa — might be able to sue.
Both agreed such an issue is less of an obstacle in many state courts, though Bernstein still believes a lawsuit would fail there as well.
In 2006, a superior court judge in Yolo County, Calif., upheld that state's law, but that case is on appeal.
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