States Take Diverging Approaches on Tuition Rates for Illegal Immigrants

This was shaping up to be a spectacular year for the many lawmakers and activists working to

lower the costs of college tuition for students living illegally in the United States.

But fears raised by the events of September 11 and a policy reversal this month by the City University of New York have ignited legal debate over the issue and may slow the activists’ momentum.

After years of effort, the advocates scored breakthroughs as first Texas, then California each enacted a law to provide in-state tuition rates to many immigrants who have lived in the state illegally but graduated from a state high school.

Similar policy shifts are being debated in several other states, including Minnesota, North Carolina, Utah, and Washington. And in Congress, lawmakers introduced bills earlier this year that would grant permanent-resident status to undocumented immigrants who apply to or enroll in an American college. (Those measures are not expected to be voted on this year.)

But advocates in several states now worry that their agenda faces new hurdles as more policy makers talk about tightening immigration controls after the terrorist attacks.

On top of that, lawyers at the City University of New York decided this month to reverse the institution’s longstanding policy of providing in-state tuition rates to immigrants who live in the state for at least one year. They did so after conducting a review of many university policies, which was precipitated by the events of September 11.

“I am just happy that here in Texas we got [our legislation] through when we did,” says State Rep. Rick Noriega, a Democrat who sponsored the Texas bill that allows some immigrants to pay in-state tuition rates. “For ... fearmongers, these are perfect times to execute your agendas.”

Meanwhile, the Federation for American Immigration Reform and other policy groups that advocate limiting immigration are cheering CUNY’s decision. They argue that giving tuition breaks to illegal immigrants rewards illegal behavior and wastes taxpayer dollars. CUNY’s policy reversal merely brings the institution into compliance with a 1996 U.S. immigration law, they say.

A provision of that law states that immigrants who are not legally in the United States cannot be eligible, based on their residence in a state, for “any postsecondary benefit unless a citizen or national of the United States is eligible for such a benefit.”

After reviewing the law and consulting with immigration experts, CUNY lawyers decided that they had no choice but to change their 12-year-old policy. Frederick P. Schaffer, the university’s vice chancellor for legal affairs, says he believes the federal law forbids the university to offer in-state rates to immigrants living in the state illegally unless it offers the same lower rates to all U.S. citizens who live outside of New York.

Mr. Schaffer’s predecessor had allowed CUNY’s old policy to remain because the law did not explicitly mention in-state tuition. And federal officials have never issued regulations to specify how the provision would be enforced.

But anyone who has any doubts about the intention of Congress need look no further than nonbinding language that lawmakers attached to the immigration law, Mr. Schaffer argues. In it, lawmakers wrote that the section on postsecondary benefits “provides that illegal aliens are not eligible for in-state tuition rates at public institutions of higher education.”

The policy change has upset many faculty members at the institution, with some calling for public hearings and a Board of Trustees vote on the policy. Lawyers for the Mexican American Legal Defense and Educational Fund also plan to urge CUNY to reverse its decision.

But Mr. Schaffer says that any further changes in the policy would have to come from New York State lawmakers. University officials are notifying each of the 2,100 students who will have to pay higher nonresident tuition rates starting in January, and setting up “help centers” so that students can get advice and clarify their immigration status.

In Wisconsin, Gov. Scott McCallum, a Republican, had reached the same conclusion that CUNY did. In August, he vetoed a proposal that lawmakers put in the state’s budget bill that would have provided in-state tuition rates to immigrants who graduated from a Wisconsin high school and lived in the state for three years.

In his veto message, the governor said that “until Congress changes the eligibility status of undocumented persons for this benefit, the focus of taxpayer-subsidized postsecondary education needs to remain on students who are legal residents of the state.”

But some immigration lawyers, as well as college and state-government officials, believe that interpretation is too narrow. They say that the Congressional reference to in-state tuition rates is not legally binding.

Legal advocates for providing in-state tuition to immigrants also say they believe the federal law violates the U.S. Constitution. The federal government, they say, cannot dictate how states or public colleges must award state benefits, including resident tuition. Moreover, they add, without federal regulations on the provision, U.S. officials are unlikely to enforce any interpretation of the law.

Elaine Komis, a spokeswoman for the U.S. Immigration and Naturalization Service, finds this all beside the point. She says that the agency has “no reason” to issue regulations on whether someone who is in the country illegally could qualify for tuition benefits. The agency believes that person should be removed from the country.

But Dan L. Palmquist, an immigration lawyer who is helping draft legislation in Minnesota to provide in-state tuition rates to undocumented immigrants, says he heard a regional INS official say at a public meeting that the agency viewed the tuition policy as a “local matter.”

Jack Martin, special projects director for the immigration-reform federation, says it likely will take a lawsuit to determine whether states can legally enact policies to offer in-state tuition to immigrants living in the country illegally.

Mr. Palmquist says he does not believe that any individual would have the legal standing to challenge the policies. He believes that under the federal immigration law, only the U.S. Justice Department could bring such a case. Many federal statutes explicitly provide individuals with the right to bring a lawsuit against entities that violate the law, but the 1996 statute does not, Mr. Palmquist says.

In the meantime, many advocates for tuition benefits for immigrants say they are disappointed in CUNY’s decision. “Their historic mission has been for so many years to educate the disadvantaged -- to be the college of immigrants,” says Ellen H. Badger, director of international student and scholar services for the State University of New York at Binghamton.

Some SUNY campuses once allowed some undocumented immigrants to qualify for in-state tuition, but the system’s regents changed its policy in June 1998 in response to the federal immigration law. The policy now prevents immigrants living in the state illegally from paying in-state rates.

Ms. Badger says she does not want to second-guess the decision made by SUNY lawyers at the time the federal law was put into place. But she says there doesn’t appear to be any legal reason why CUNY would need to change its course now.

The students involved in this debate generally came to the United States with their parents and have grown up attending elementary and secondary schools in the country. A 1982 U.S. Supreme Court decision, Plyer v. Doe, prevents those schools from considering immigration status when a student is seeking to enroll. The ruling does not apply to colleges.

Many campus officials and lawmakers argue that the immigrants tend to stay in the United States, and that helping them attend college will allow them to better contribute to state economies.

Officials in California and Texas believe their new policies are crafted in ways that allow them to sidestep the limits of federal law.

California Gov. Gray Davis, a Democrat, signed a bill in October that will allow some immigrants living in the state illegally to pay in-state tuition at public community colleges and California State University campuses. (Under the bill, University of California regents also could vote to charge the lower rates; a university spokesman said that its regents would take up the issue at their January meeting.)

To receive the benefit, students must attend for three years, and graduate from, a California high school. They also must sign an affidavit pledging to apply for permanent residency as soon as they are eligible.

Governor Davis had vetoed a similar measure in 2000, citing concerns that the measure would violate the 1996 federal immigration law. That state bill would have allowed immigrants who could prove that they had lived in California for at least three years and were in the process of becoming legal residents to pay the lower tuition rates.

The California legislation that passed this year did not include any references to state residency. By eliminating those references, California lawmakers and government officials believe that they have steered clear of a conflict with the federal law, which specifically prohibits benefits awarded “on the basis of residence.”

In Texas, Gov. Rick Perry, a Republican, signed a bill in June that provides in-state rates at all public colleges to immigrants who have graduated from a Texas high school, lived in Texas for at least three years, and signed an affidavit pledging to apply for permanent residency when they are eligible.

State officials believe their law complies with the federal immigration statute because it sets a higher bar for receiving in-state tuition for immigrants living in the state illegally than for U.S. citizens who move to Texas. Students in the latter group can become residents -- and qualify for in-state tuition -- after living in the state for one year.

Michael A. Olivas, a professor of law at the University of Houston’s main campus who specializes in immigration law, believes the 1996 federal law unconstitutionally tries to dictate states’ tuition decisions.

But even if the federal law can be applied, it would simply prevent states from offering greater benefits to immigrants who are in the country illegally than to U.S. citizens, Mr. Olivas believes. Since a resident of any state can move to Texas and be eligible for in-state tuition in a shorter time than immigrants can, those immigrants are not getting any greater benefits under Texas law, he says.

He says he does not believe that CUNY’s recent decision will significantly influence other states.

Just this month, for example, Georgia’s Gov. Roy E. Barnes, a Democrat, told Mexico’s president, Vicente Fox, that he is encouraging college presidents to use a longstanding university-system policy to allow some Mexican immigrants living in the state illegally to pay in-state tuition.

Under that policy, each president can exempt up to 2 percent of the institution’s entering class from paying nonresident tuition rates. The policy often has been used to help athletes or outstanding students from other U.S. states.

In North Carolina, State Sen. William N. Martin, a Democrat, wants state lawmakers to study whether illegal immigrants should be allowed to pay resident tuition.

He worries that CUNY’s decision, fears about foreigners that have arisen since September 11, and a tight state budget could dim the prospects for such an idea.

Nevertheless, Mr. Martin expects the North Carolina General Assembly to authorize the study before the session ends this year. The state must decide how to help its immigrant population, which is one of the fastest growing in the United States, he says. If North Carolina does not offer opportunities for these students beyond high school, they will be unable to contribute much to the state economy.

“We want to glean out every bit of flexibility we can with the law,” he says.

CAN ILLEGAL IMMIGRANTS RECEIVE IN-STATE TUITION RATES?

State officials and legal experts disagree over whether states and public-university systems that offer in-state tuition rates to some immigrants living in the United States illegally run afoul of a 1996 federal-immigration law.

The federal provision: “An alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a state (or 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.”

Here’s how some state and university officials acted on the issue this year:

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