Illegals Instate Tuition should be REPEALED

The SL Tribune recently reported on the upcoming California Supreme Court hearing on Instate Tuition for illegal aliens which is virtually the same as the Utah law.

In sanitizing the original LA Times article, all references to "illegal" immigrant were replaced with the politically correct "undocumented" immigrant. Also missing from the article were many of the very poignant statements by the plaintiffs, such as:

• "U.S. citizens should have at least the same rights as undocumented immigrants," said one of the plaintiffs, Aaron Dallek, an Illinois native who graduated from UC Berkeley in 2006.
  
• Another plaintiff, 2006 UC Davis graduate Onson Luong, said he didn't think it was fair that he, as a native of Nevada, had to pay higher tuition than illegal immigrants.
  
• Michael Brady, who represents the out-of-state students and their parents in the case, said California is "completely undermining the intent of Congress" and that the state law should be invalidated because it violates federal immigration law. . .

As the Utah Attorney General’s office opined in a 2002 letter to the University of Utah: "This Utah statute provides, by its own terms, that it is only operational ""[i]f allowed under federal law"". Federal law places limitations on a state allowing higher educational benefits to aliens who are not lawfully present in the United States unless the same benefits would be available to any other individuals in the United States regardless of whether they are residents of Utah." . . .

Utah passed Instate Tuition predicated on the passage of the proposed so-called Dream Act, which would have allowed States the option to offer reduced tuition to illegal aliens. Click here to listen to the actual floor debates in 2002.

When posted in the Utah Office of Education regulations (R513-13) the phrase "If allowed under Federal law," was omitted. The Dream Act has never been passed.

The Utah AG letter went on to say: "We have not found applicable judicial opinions interpreting 8 U.S.C. Section 1623, so there is always the possibility that a different or more strict interpretation might be applied by the courts, but on its face, at this preliminary juncture, we are of the opinion that it does not override Utah’’s tuition statute."

A California Appeals Court (Martinez v. Regents of U.C. 9/15/08 CA3) has now issued an opinion: "As we shall explain, the three-year attendance requirement at a California high school is a surrogate residence requirement. The vast majority of students who attend a California high school for three years are residents of the state of California. Section 68130.5 thwarts the will of Congress manifest in title 8 U.S.C. section 1623."

That appellate court decreed that all US Citizens paying non resident tuition would be eligible for reimbursement for the excess payment above the resident rate. The potential to the taxpayers of Utah for such a decision in voiding the Utah instate tuition could easily be in the $10's, or even $100's, of millions.

Additionally, upon graduation, the undocumented immigrant graduate can still not LEGALLY obtain employment in the United States.

In addition to being in violation of the federal law on tuition, allowing that reduction also appears to violate federal law declaring it illegal to aid, abet or "encourage or induces an alien to come to, enter, or reside in the United States, knowing . . . that such . . . residence is or will be in violation of law;" US Code Title 8, sec 1324 .

Instate Tuition for illegal immigrants should be repealed by the Utah legislature - this year - to comply with federal law, avoid huge potential costs and be fair to US citizens, regardless of what the California Supreme Court decides.

California Court on In-state Tuition for illegals

California Court of Appeals has weighed in with a decision on illegal aliens and In-state Tuition, declaring it unconstitutional:

A three judge panel of the California Court of Appeals unanimously ruled Monday that a California law intended to permit illegal aliens to attend public colleges and universities at in-state tuition rates is unconstitutional because it conflicts with federal law, and violates both the equal protection clause and privileges and immunity clause of the constitution. Ruling in the case of Martinez et al. v. Regents of the University of California, brought by the Immigration Reform Law Institute (IRLI) on behalf of some 80,000 nonresident American students who were denied in-state tuition benefits, the Appeals Court agreed that California policy violates expressed provisions of both the Immigration Act and the Welfare Reform Act of 1996.

The 1996 Immigration Act states that "an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State...for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit..." In their ruling, the judges concluded that a California law that recognizes illegal aliens as residents for the purpose of attending public colleges and universities at taxpayer subsidized tuition rates, "does, and was intended to, benefit illegal aliens" - a benefit that the state fails to provide to U.S. citizens from other states. The court also granted injunctive relief to nonresident American students, meaning that they must be permitted to pay in-state tuition. Students who have already paid out-of-state tuition rates must be reimbursed."

This decision should be a call to action in Utah to repeal in-state tuition for illegals. Obviously court cases may continue, but the salient point in this decision is that some in the Utah government have used the original court decision (no standing) as a reason to allow continuing the Utah illegal alien in-state law.

This case is based on virtually the same scenario as Utah's situation, and the California Court ruled on the RESIDENCY issue. A letter to U of U from the AG's office opines:

"This Utah statute provides, by its own terms, that it is only operational “[i]f allowed under federal law”. Federal law places limitations on a state allowing higher educational benefits to aliens who are not lawfully present in the United States unless the same benefits would be available to any other individuals in the United States regardless of whether they are residents of Utah." . . .

"We have not found applicable judicial opinions interpreting 8 U.S.C. Section 1623, so there is always the possibility that a different or more strict interpretation might be applied by the courts, but on its face, at this preliminary juncture, we are of the opinion that it does not override Utah’s tuition statute."

It appears that opinion has now been offered - Martinez v. Regents of U.C. 9/15/08 CA3 :

"2. Respondents argue in-state tuition is not granted "on the basis of residence within a state" as required by federal law. Respondents point to the fact that in-state tuition for illegal aliens is based on a student’s having attended a California high school for three or more years and on the student’s having graduated from a California high school or having attained "the equivalent thereof." (§ 68130.5, fn. 1 ante.) As we shall explain, the three-year attendance requirement at a California high school is a surrogate residence requirement. The vast majority of students who attend a California high school for three years are residents of the state of California. Section 68130.5 thwarts the will of Congress manifest in title 8 U.S.C. section 1623.
We shall conclude the trial court erred in determining the complaint failed as a matter of law. We shall reverse the judgment of dismissal and allow the case to proceed in the trial court."

As has been testified many times before Utah legislative committees, there is a huge POTENTIAL liability to the taxpayers of Utah in continuing this action - Instate Tuition for illegal aliens should be repealed as soon as possible. The estimated liability to Utah may be in the $100's of millions.

Atty Gen opinion on Instate Tuition

This is the AG opinion on the subject (bold added):

October 9, 2002
Bernard Machen
President
University of Utah
201 South Presidents Circle, Room 203
Salt Lake City, Utah 84112

Re: Eligibility for In State Tuition

Dear President Machen:

This letter is in response to your inquiry concerning the validity and current applicability of Utah’s statute allowing students (except specifically defined nonimmigrant aliens under federal law) to pay only resident tuition at a Utah institute of higher education if they have attended a Utah high school for three or more years and received a high school diploma or its equivalent.

Based on the following analysis, I conclude that the Utah statute is valid and is currently enforceable.

The Utah statute in question, Utah Code Ann. § 53B-8-106, provides:

(1) If allowed under federal law, a student, other than a nonimmigrant alien within the meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States Code, shall be exempt from paying the nonresident portion of total tuition if the student:

(a) attended high school in this state for three or more years;
(b) graduated from a high school in this state or received the equivalent of a high school diploma in this state; and
(c) registers as an entering student at an institution of higher education not earlier than the fall of the 2002-03 academic year.

(2) In addition to the requirements under Subsection (1), a student without lawful immigration status shall file an affidavit with the institution of higher education stating that the student has filed an application to legalize his immigration status, or will file an application as soon as he is eligible to do so.

This Utah statute provides, by its own terms, that it is only operational “[i]f allowed under federal law”. Federal law places limitations on a state allowing higher educational benefits to aliens who are not lawfully present in the United States unless the same benefits would be available to any other individuals in the United States regardless of whether they are residents of Utah. 8 U.S.C. Section 1623 provides:

Notwithstanding any other provision of law, 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.

The Utah statutory criteria for being exempt from the nonresident portion of tuition, namely (a) attending a Utah high school for three or more years and (b) receiving a high school diploma or a equivalent, can be met by “a citizen or national of the United States” regardless of whether he or she is a resident of Utah. Utah’s Public Education Code provides that students who reside in one school district may, to the extent reasonably feasible, attend school in another school district (Utah Code Ann. § 53A-2-207). Likewise, a school district may permit a child residing outside of the state to attend school within the district on the payment of tuition at least equal to the per capita cost of the school program in which the child enrolls, though the tuition may be waived by the school board (Utah Code Ann. § 53A-2-205). In general, a child’s residence for purposes of obtaining a free public education in Utah is based on whether the child resides in the district, apparently without regard to citizenship or immigrant status (Utah Code Ann. § 53A-2-201). This is the case even if the child is not living with its parents but with a responsible adult designated by affidavit by the child’s parents as a legal guardian.

Therefore, there appear to be a number of options available to a child and its parents to allow the child to attend and graduate from a Utah high school regardless of citizenship, state of residence, or immigrant status. Based on this flexibility in Utah law relative to high school attendance and graduation, the federal prohibition against postsecondary education benefits for an illegal alien appear not to apply because the same opportunities are equally available to citizens or lawful residents of any other state. Utah law allowing Utah high school graduates to pay resident tuition does not appear to violate either the letter or spirit of the federal limitation and appears valid. Thus, this education benefit appears “allowed under federal law” and is valid and enforceable.

We have not found applicable judicial opinions interpreting 8 U.S.C. Section 1623, so there is always the possibility that a different or more strict interpretation might be applied by the courts, but on its face, at this preliminary juncture, we are of the opinion that it does not override Utah’s tuition statute.

Sincerely,



WILLIAM T. EVANS
Assistant Attorney General
Chief, Education Division

WTE/bk

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Note: This appears to be a rather convoluted argument saying that: we have created a residency requirement specifically for "a student without lawful immigration status" to be eligible for instate tuition, all nonresident US citizens must meet that requirement, even though the federal law says "without regard to whether the (nonresident) citizen or national is such a resident," because we have residency requirements for High School. If, and when, a court case arises from a nonresident paying nonresident tuition, I hope, for the taxpayers of Utah that they are right.

The requirement to educate illegal alien children in K-12 was decreed under Plyler v Texas, 1985, and has no requirement basis in higher education.
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US Code Title 8, Section 1623.
Limitation on eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education benefits (a) In general
Notwithstanding any other provision of law, 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. http://assembler.law.cornell.edu/uscode/html/uscode08/usc_sec_08_00001623----000-.html

Kansas Instate tuition Ruling

http://deseretnews.com/dn/view/0,1249,600146785,00.html

Plaintiffs' co-counsel Kris Kobach on Wednesday called the ruling "unduly narrow." Kobach said he plans to appeal the dismissal to the 10th Circuit Court of Appeals, which also oversees Utah. If the ruling is overturned, the case will go back to the Kansas District for arguments on the merits. The Kansas law is similar to one in Utah that grants in-state tuition to illegal immigrants who attend a Utah high school for three years and graduate here, or obtain the equivalent of a diploma. They must also be seeking legal immigration status or plan to do so when they are eligible. . . .
However, Rep. Glenn Donnelson, R-North Ogden, said the ruling hasn't changed his decision to sponsor the repeal of the tuition law, which he says is "still against the law. "I'm sure that people will say we don't have a problem here, but we still have a problem here," Donnelson said. U. of U. sophomore Kelly Wolfe, who is among those considering a suit, says it's a matter of principle. "We are being affected," Wolfe said. "They should not be allowing illegal aliens to have something the federal government says they can't have unless citizens have it.". . .
Utah Latino rights activist Tony Yapias said the Kansas ruling "gives us more fuel to the fire" in efforts to persuade lawmakers to keep the law intact. "I think the biggest thing right now is that a judge has said there isn't a case," Yapias said. "I'm just concerned our legislators could have waited a little bit longer, rather than take an anti-immigrant group and attorney at face value."

Instate tuition Hearing

Undocumented students may lose in-state breakThe joint Education Interim Committee voted Wednesday to support repealing a law that allows some undocumented students to pay in-state tuition at Utah colleges and universities.

Waiver for illegals on shaky ground http://www.sltrib.com/utah/ci_2805178
By Shinika A. Sykes The Salt Lake Tribune
Children of illegal residents may no longer be eligible for reduced in-state college tuition at Utah public colleges and universities if a 3-year-old state law is reversed. That reversal gained momentum Wednesday when the Legislature's Education Interim Committee voted along party lines, 10-3, to send House Bill 239 directly to the House floor during the 2006 session. HB239 was ready for passage during the 2005 Legislature, but was delayed when questions arose over whether federal law prohibits Utah from providing higher-education opportunities to illegal residents. In addition, lawmakers were concerned that the current law harms U.S. citizens from out of state who are forced to pay higher tuition. "If it stays on the books, it's an amnesty bill," said Rep. LaVar Christensen.

Urquhart on InState Tuition for illegals

http://www.steveu.com/2005/06/education-immigration-and#comments
Wednesday, June 15, 2005

Education, Immigration, and Constitutional Law 101

In establishing the Constitution, the people, through their states, gave certain powers to the federal government. These are called delegated or enumerated powers. Governmental powers not given to the federal government (all others) are called reserved powers. The rules are simple: the federal government acts in areas of its enumerated powers, and the states act in areas involving reserved powers.

Today, in the education committee we addressed 2 important issues. I wish that our committee broadcasting system already were in place. Today's hearing would have been very interesting to all Utahns and would have provided a great constitutional lesson. We addressed K-12 educational testing requirements, and we addressed college tuition for illegal aliens. Both issues potentially pack dramatic, life-altering implications.

However, because of the constitutional structure of our Nation, the two issues must be addressed in different fashions.Dr. Patti Harrington discussed the layers of testing we require of our K-12 students. She pointed out that the testing regime is an important part of the State's comprehensive assessment and accountability system (which we desire to implement, instead of the federal system dictated by No Child Left Behind). Can Utah do better? Absolutely. The push-and-pull with the federal government has prompted us to look more closely at what we're doing. We’re working to make improvements – as we should. Authority to govern education matters is a reserved power; it is a “state’s rights” issue.

We also discussed Utah’s existing law allowing illegal aliens to pay in-state tuition at our colleges and universities. The Committee took the action to advance a bill that would repeal the statute. Because this involves a very passionate issue, some might instinctively say “good,” and others might instinctively say “bad.” Whatever one’s underlying feelings are, the decision was driven by the constitutional structure of our nation. Immigration, unlike education, is an issue that has been delegated to the federal government.The federal government has declared, as it can, that states shall not offer in-state tuition to illegal aliens.

The House conference report states, “This section provides that illegal aliens are not eligible for in-state tuition rates at public institutions of higher education.” Likewise, Senate sponsor Alan Simpson stated, “Illegal aliens will no longer be eligible for reduced in-State college tuition.” Our Utah statute is at odds with federal law and, therefore, must yield.A lot of the arguments against repeal were very emotional. But, as I stated in committee, “This is not an emotional issue; this is a Constitutional issue.” Also, it is a very serious dollars and cents issue.

Because the federal law establishes that Utah can't give illegal aliens a tuition break that it doesn't give all Americans, there is a great threat that all out-of-state students who have paid more than the in-state tuition paid by illegal aliens for Utah colleges and universities could file a class action suit to get back that additional money -- $100,000,000 since the statute went into effect and growing at about $30,000,000 every year it stays in place in the future. Clear law and a serious threat of liability dictated the outcome.One member of the committee stated after the votes that she thought the committee was inconsistent in demanding state's rights on one issue and deference to the federal government on the other. Rep. Christensen correctly pointed out that it is the Constitution that demands state's rights on the education issue and deference on the immigration issue. Our founders imposed an order; though I think the federal government has lost all concept of that fact, governments must act accordingly.

Utah Illegal alien tuition law

The current law reads as follows:

53B-8-106. Resident tuition -- Requirements -- Rules.
(1) If allowed under federal law, a student, other than a nonimmigrant alien within the meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States Code, shall be exempt from paying the nonresident portion of total tuition if the student:
(a) attended high school in this state for three or more years;
(b) graduated from a high school in this state or received the equivalent of a high school diploma in this state; and
(c) registers as an entering student at an institution of higher education not earlier than the fall of the 2002-03 academic year.
(2) In addition to the requirements under Subsection (1), a student without lawful immigration status shall file an affidavit with the institution of higher education stating that the student has filed an application to legalize his immigration status, or will file an application as soon as he is eligible to do so.
(3) The State Board of Regents shall make rules for the implementation of this section.
(4) Nothing in this section limits the ability of institutions of higher education to assess nonresident tuition on students who do not meet the requirements under this section. Enacted by Chapter 230, 2002 General Session
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Notice the exclusion of the bolded item above in the current School Board implementation rule:

R513-13. Exemption from Paying Nonresident Portion of Tuition for Certain Students - Pursuant to §53B-8-106
13.1. Exemption for Certain Students with Utah High School Graduation - A student, other than a non-immigrant alien within the meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States Code, shall be exempt from paying the nonrsident portion of total tuition if the student:
13.1.1. attended high school in Utah for three or more years;
13.1.2. graduated from a high school in this state or received the equivalent of a high school diploma in Utah; and
13.1.3. registers as an entering student at a System institution not earlier than the fall of the 2002-03 academic year.
13.1.4 Affidavit - In addition to the requirements of 13.1, a student without lawful immigration status shall file an affidavit with the System institution stating that the student has filed an application to legalize his or her immigration status, or will file an application as soon as he or she is eligible to do so. http://www.utahsbr.edu/policy/r513.htm

Debate on Instate Tuition bill

The audio debate on HB 144 can be found at: http://www.le.state.ut.us/asp/audio/index.asp?Sess=2002GS&Day=0&Bill=HB0144&House=H

Rough paraphrase audio lasts 46 minutes
Ure's bold comment about 10 mnutes in.


Rep Ure (Bill Sponsor) matter of economics - $16k "investment" in education - will give lifetime benefits Congress in turmoil on issue "only 10-20 people" will be involved in Utah

Rep Parker opposed - employers should pay for education

Dayton amendment: allow instate tuition for all US resident to comply with Federal law.

Ure: in response to proposed amendment: paraphrase: "Bill will not go into effect until US Congress allows it. That provision is in the bill.

Throckmorton: consider one legal, one illegal immigrant - illegal gets benefit, legal does not.

??? We are confusing illegal with undocumented, don't punish children. This is for the children of illegals who have gone through the school system (at taxpayer expense)

Urquhart: Fiscal note on existing bill. Ure says 10-20 per year UU resident vs. non resident $5931 difference $1,920,000 total over four years. many Utahns can't afford - shall we subsidize utahns or illegals? Offered exemption 25% of non resident difference.

Ure: So what if it is a million $, what's baby your baby, food stamps costing If he graduates he can make more money and help community.
These people are here no stay, better education, better job.

Ferrin: How many current students will this effect? Non necessarily a cost - may just be an incremental increase by more students. Marginal costs

Newbold: empathy How can they become citizens? Why provide to people who can not become Legal Permanent Residents. The students MAY be able to get that status, need requirement for step towards legalization. Amend "shall become a LPR" (action to have been completed)

Ure: OPPOSED If they could have done it they already would have done it In the next couple of months, Congress will be changing the situation in a few months. Quick LPR is someone's dream - It takes much longer (Hatch's Act is a Dream - or a Nightmare, here we are three years later and nothing has happened - but Utah is allowing illegals instate tuition.)

Motion to circle: Ure opposed Knowledge from INS is not there. Waiting for weeks vote the bill, stop wasting time. FAILED

??? If student applies for legal status he might be deported, because they admit their illegal status.

Newbold Amendment defeated.

Urquhart: Significant financial cost to Utah 25% amendment failed

Ure: College grad pays more taxes will pay back his $20,000 Illegals come to help their children,, have the drive to make US better

Bill Passed