Colorado Senate Bill 126 — Allowing In-State Tuition For Illegal immigrants

The gang at Colorado Peak Politics is following SB126 as it works its way through the Colorado General Assembly.  The text of the bill is available here

In short, SB126 allows a student to be classified as an unsubsidized in-state student for tuition (and note residency) purposes so long as the student: (i) Attended high school in Colorado for three or more years immediately preceding the date the student graduated from a Colorado high school or earned a GED certificate in Colorado; and (ii) is admitted to an institution of higher education in Colorado within 12 months after graduating from high school or earning a certificate.  An illegal immigrant student applying for the in-state tuition classification also has to submit a confidential affidavit stating that he or she  has requested lawful status, or will request lawful status as soon as he or she is eligible.

I generally agree that the bill is a bad idea on the same grounds cited at the link:

The most intellectually dishonest part of the bill is where it stipulates “unsubsidized” in-state tuition. That’s logically impossible. In-state tuition is lower because the cost difference with the out-of-state tuition is covered by taxpayers. Free lunch does not exist. Someone has to pay for it. 

Right.  The only difference is that illegal immigrants would not be eligible for additional subsidies  under state-funded programs such as the college opportunity fund stipends or for need-based financial aid above and beyond the inherent in-state tuition subsidy.  Therefore, making up a new classification of subsidized students and calling them unsubsidized is patently dishonest and misleading.

I also think the affidavit requirement stating that the student has requested lawful status, or will request lawful status as soon as he or she is eligible is a joke.  Obviously, because the affidavit is classified as confidential, the school cannot share it with immigration enforcement to determine whether any statements within it are accurate.  Indeed, SB126 classifies the affidavit as an “education record” under 20 U.S.C. 1232g.  Under that statute, even the Attorney General and its subordinates cannot obtain access to such records to investigate terrorism without a court order.  20 U.S.C. 1232g(j).  Clearly, nothing can or will be done to ensure that students are not just lying in their affidavits, and a statement of future intent to submit a request is usually not a fact that one can be said to have lied about as a legal matter.

But I disagree, in part, with one point being made at Colorado Peak Politics.  They quote someone, perhaps Minority Leader Mike Kopp, saying this:

SB126 clearly violates existing federal law, which stipulates that if you grant in-state tuition to an illegal alien, you must also grant that same tuition to all U.S. citizens, thereby effectively abolishing out-of-state tuition.

Not necessarily. 

The referenced statute, I believe, is 8 USCS § 1623(a).  It provides that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.” 

SB126 has been crafted to avoid this provision by basing eligibility on attendance at a Colorado high school and either graduation from a Colorado high school or obtaining a Colorado GED rather than simply residing in Colorado.  It then attempts to invoke the specific language of Section 1623 by stating that eligibility “is not based upon residency.” 

This may seem a bit fanciful to a non lawyer — after all, attending Colorado high schools for three years certainly has a bit of a connection to residency.  But at least one court has bought the argument so far. 

In Martinez v. Regents of University of California, 50 Cal. 4th 1277, 1284 (Cal. 2010), the court held as follows:

Because the exemption is given to all who have attended high school in California for at least three years (and meet the other requirements), and not all who have done so qualify as California residents for purposes of in-state tuition, and further because not all unlawful aliens who would qualify as residents but for their unlawful status are eligible for the exemption, we conclude the exemption is not based on residence in California. Rather, it is based on other criteria. Accordingly, section 68130.5 does not violate section 1623.

Moreover, the United States Court of Appeals for the Tenth Circuit held in Day v. Bond, 500 F.3d 1127, 1131 (10th Cir. 2007), that U.S. citizen non-resident students paying out-of-state tuition in Kansas did not have standing to challenge a similar statute.  Without legal standing, the federal court could not even address the merits of their claim that the Kansas law violated the federal statute by not allowing all U.S. citizens the tuition subsidy enjoyed by qualifying illegal immigrants.

Like I said, these statutes are not a good thing.  They allow (additional) taxpayer subsidized education for persons who — largely through no fault of their own, alas — are not even supposed to be in the country and are breaking the law every day they are here.  That increases the strain on limited resources that already absorb massive amounts of the state budget.

The proper way to deal with the illegal immigration issue is through border enforcement first, then turning to what to do about people already here illegally.  Otherwise, we just increase the incentives to cross the border and take up residence in the U.S. illegally while lax border enforcement makes it relatively easy to do so. 

But, particularly in the Tenth Circuit (where Colorado is located), non-resident citizens are not likely to get in-state tuition if SB126 passes.

UPDATE:  Let me be perfectly clear (channelling Obama here), I am not saying that either of the cited court decisions are correct.  I am sure that with additional thought and research I could come up with plenty of arguments as to why they are wrong, and some of them might turn out to be pretty decent.  Intuitively, and in particular, I think the argument that a requirement that one go to school for three years is not a residency distinction is probably pretty weak.

I am only saying that it is not correct to assert that “SB126 clearly violates existing federal law” or would “effectively abolish[ ] out-of-state tuition.”  The question is unsettled and complicated by the standing issue, and the statute was specifically crafted to avoid conflict with the relevant federal statute.

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Published in: on March 16, 2011 at 2:44 pm  Leave a Comment  

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