Legal Experts Dispute GOP Claim that Bill Granting In-State Tuition to Undocumented Immigrants Contradicts Federal Law

Keith King is convinced that Colorado cannot make in-state tuition rates at its colleges and universities available to the children who are undocumented immigrants.

In a video released by the Republican senate caucus Wednesday the veteran legislator and first-term senator argued that SB 170 violates federal law.

The Colorado Springs Republican senator is not alone in his view.

Attorney General John Suthers (R) issued a 2006 opinion in which he asserted that the state is forbidden to charge resident tuition to kids brought across an international border by their parents without permission from Congress.

The issue is driving an animated debate at the capitol, as Democratic Sen. Chris Romer of Denver and Rep. Joe Miklosi, D-Denver, are sponsoring a measure that would allow some immigrant children who have attended high school in Colorado to pay in-state tuition at any of the state's institutions of higher learning.

Despite GOP certainty on the issue, though, some legal experts believe federal law poses no obstacle at all to the passage of SB 170.

At the core of the dispute is the meaning of two federal statutes enacted in 1996.

The first of those federal laws, called the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, says that undocumented immigrants are ineligible for state-based “public benefits,” including “postsecondary education.”

But the statute also says that “[a] [s]tate may provide that an alien who is not lawfully present in the United States is eligible for any [s]tate or local public benefit for which such alien would otherwise be ineligible . . . only through the enactment of a [s]tate law after August 22, 1996, which affirmatively provides for such eligibility.”

The second, known as the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, says that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a [s]tate . . . 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.”

Suthers said in his 2006 opinion, which was requested by the then-executive director of the state's Commission on Higher Education, Rick O'Donnell, that the first of these two laws means that "aliens are ineligible to receive 'state or local public benefits' unless, through enactment of a state law after August 22, 1996, the state 'affirmatively provides' for such eligibility." The second federal law, according to Suthers, means that "undocumented aliens [are] ineligible for in-state tuition status so long as such status is conferred based on residency in the state."

But Professor Michael A. Olivas, the director of the Institute for Higher Education Law and Governance at the University of Houston Law Center, says Suthers' interpretation is incorrect.

"It is a very symmetrical arrangement that the restrictionists have completely ignored," Olivas said. "They say, 'If Congress has said if you give this status to someone who is undocumented you have to give it to everybody.' That is not at all what the statute says."

“What that means is, you may not give an enhanced status to someone who is undocumented with regard to rate duration and time. That means that someone from New Mexico could not be held to a 12-month standard and someone who is undocumented be held to a six-month standard."

The proposed Colorado law would require undocumented immigrants to have lived in the state for at least three years and to have graduated from a Colorado high school or obtained a GED to qualify for in-state tuition. American citizens qualify for in-state tuition rates at Colorado colleges if they can prove they have resided in the state for one year and intend to continue making Colorado their home.

Olivas said that there is no definitive judicial resolution of the argument about the meaning of the two 1996 federal laws available.

But the U.S. Court of Appeals for the Tenth Circuit, which is based in Denver and which has jurisdiction over federal cases arising in Colorado, ruled in 2007 that a group of college students in Kansas could not challenge a Sunshine State law similar to that being considered in the General Assembly.

In that decision, which came in a case known as Day v. Sebelius, the appeals court judges said the students lacked "standing" because they could not prove they were harmed by the law. The U.S. Supreme Court later declined to review that decision.

Olivas says the Tenth Circuit's ruling reflects common sense.

“My getting in-state tuition in Colorado doesn’t mean someone else doesn’t get it," he said. "It’s not like admission.”

There is another case pending in the California supreme court that challenges a similar law in that state, Olivas said, but it would be unlikely to have any impact on a Colorado law because Colorado courts are not bound by the findings of California state court judges and it is probable that the two states' laws would be significantly different.

In that California case, called Martinez v. Regents of the University of California, a state intermediate appeals court reversed the dismissal of a complaint by a college student that the Golden State's law granting undocumented immigrants the right to pay in-state tuition at state colleges. But that California court of appeals ruling was ordered "de-published," or removed from the law books, when the California supreme court decided in December to review the case.

Olivas is not alone in his assessment of the impact of federal immigration law on states' authority to offer resident tuition rates to undocumented immigrants.

In a letter sent to the attorney general of Texas last October, five other law professors took a similar view. In addition, the U.S. Department of Homeland Security told the North Carolina Department of Justice in a letter last July that the two 1996 federal immigration statutes have no impact on states' decisions about whether to admit undocumented immigrants to their colleges and universities.

Notwithstanding Olivas' certainty about the impact of federal law on state in-state tuition statutes, there are other authorities on immigration law who insist Congress did indeed mean to forbid access to in-state tuition for undocumented immigrants.

Ralph Kasarda, a lawyer with Pacific Legal Foundation who has filed an amicus curiae brief arguing on behalf of the college students in the California case, said he is certain the laws similar to SB 170 that have been adopted in ten states are blocked by federal law.

"I believe the federal law preempts all of these state laws," Kasarda said. "The federal law speaks of a post-secondary education benefit and the legislative history behind that certainly indicates that Congress was contemplating in-state tuition. So the law says that states can't grant a post-secondary education benefit to an illegal alien unless that same benefit is granted to out-of-state students without regard to residence."

"I would come down with the appellate court here in California, which said a law like that violates federal law."

Kasarda also dismissed claims that the 10th Amendment to the U.S. Constitution prevents Congress from imposing a barrier to state attempts to make in-state tuition available to undocumented immigrants.

"It's illegal to hire an illegal immigrant," Kasarda said. "Just their presence in the united States is illegal, so providing assistance to them is illegal. So, for a state to give assistance to an illegal alien is thwarting federal immigration laws and would be preempted on that basis."

The controversy over SB 170 may be mooted soon in any event.

A proposed federal law known as the DREAM Act, which passed the U.S. Senate in 1996 before dying when a comprehensive immigration reform bill was killed by a filibuster in 2007, would make clear that undocumented immigrants who meet certain criteria may pay in-state tuition rates at state colleges and universities.

A spokesperson for U.S. Rep. Howard Berman, D-California, who has previously been the prime sponsor of the bill in the House of Representatives, said the DREAM Act would be reintroduced in the current Congress "in the next several weeks."

Colorado's 2nd District Congressman, Democrat Jared Polis of Boulder, is expected to be a co-sponsor and leading proponent of that bill.

The states other than California that have laws granting some undocumented immigrants access to in-state college tuition are Washington, Texas, Illinois, Nebraska, New York, Utah, Kansas and New Mexico. Oklahoma had a similar law in effect between 2003 and 2007.