Undocumented student tuition resurfaces

Dream bill or nightmare at Colorado Capitol?
The Colorado Statesman

Next week, the Senate Education Committee plans to wade into the fray over illegal immigration, when they tackle another effort to grant undocumented students instate tuition.

Senate Bill 126 is sponsored by Sens. Angela Giron, D-Pueblo, and Michael Johnston, D-Denver, and 10 other Senate Democrats. The bill is scheduled to be heard in the education committee on Feb. 17.

In announcing SB 126 last week, Giron said that if passed, “students will finally get to dream big dreams. It has always been the right thing to do and now economically, it’s the smart thing to do.”

SB 126 would allow a student to be “classified as an unsubsidized instate student” for tuition purposes as long as the student went to a public or private high school in Colorado for three years and graduated, and has been admitted to an institution of higher ed in Colorado within 12 months of graduation.

The bill requires the undocumented student to submit an affidavit that he or she has applied for or will apply for lawful immigration status as soon as possible.

What’s different about this bill from those that preceded it in the last decade: the undocumented student is not eligible for the College Opportunity Fund voucher or for any state-funded need-based financial aid. That makes the cost of higher education more expensive for the undocumented student; the current value of the COF voucher is $62 per hour, to a maximum of $1,860 for 30 credit hours, roughly two semesters or one academic year.

But it’s still a lot cheaper than paying out-of-state tuition at any of the state’s public colleges and universities. At the University of Colorado-Denver, instate tuition, not including the COF subsidy, is $7,099 per year; for out-of-state students it’s more than $19,000 per year. Within the community college system, the cheapest instate tuition is at Morgan Community College, at $3,058 per year for instate, but for out-of-state it’s $12,579 per year.

SB 126 is known as Colorado ASSET, which stands for Advancing Students for a Stronger Economy Tomorrow. Three undocumented students spoke in favor of the bill during a Feb. 2 news conference, two from Bruce Randolph High School, and one student from Metropolitan State College of Denver. None of the three were identified by last name.

Alicia said she applied to seven colleges and was accepted by four, including Metro. “I want to go to college in Colorado,” she said, but “it’s three to five times more expensive,” and she doesn’t qualify for federal or state financial aid. Alicia said she came to the United States when she was two years old and has lived in Colorado for the past 13 years.

Virna noted that her high school was mentioned by President Obama in the State of the Union address because 97 percent of its students in 2010 graduated. What he didn’t mention, she said, is that half of them are undocumented. “We plan to attend college,” she said, tears welling up in her eyes. “But it’s harder. We’re smart. We’ve tried our best.” A native of Honduras, Virna said she also has been accepted to several colleges and wants to be a social worker. “It’s heartbreaking” when the dream fails, she added.

Sonja is a major in broadcast journalism at Metro and also came to the United States at the age of two. She graduated in the top eight of her high school class, was in its international baccalaureate program and was admitted to five colleges. At Metro, she has a 3.7 GPA. But all five of the colleges would have charged out-of-state tuition and provided virtually no financial aid, she said.

Johnston said the high school diploma becomes a “hollow promise” when the student can’t go on to college. Seven Western states, including all of Colorado’s neighbors except for Wyoming and Oklahoma, allow for instate tuition to be granted to undocumented students. In Texas, which began granting instate tuition a decade ago, the bill passed its legislature overwhelmingly and was signed by its Republican governor, Rick Perry, Johnston pointed out.

Granting instate tuition has also paid off for state coffers, Johnston said. Texas saw a $29 million increase in its revenue in 2009 and 9,000 more college grads. It’s now an economic issue for the colleges, he indicated. “Do we want to keep Colorado competitive, or tie the hands and create a permanent underclass of uneducated” individuals? he asked.

The sponsors claim the bill would bring in about 500 students per year, and could pump $1.7 million to $4.5 million per year into the state’s public colleges and universities, without any general fund cost to the taxpayer.

Sen. Ted Harvey, R-Highlands Ranch, attended the Feb. 2 news conference and said after that “we cannot continually ask the taxpayers… to fund benefits for illegal immigrants, and now they want one more service from the taxpayers.” Harvey acknowledged that the students wouldn’t get the COF voucher, but said they would still get a taxpayer-subsidized education, since they would not have to pay out-of-state tuition rates.

Whether the bill will get past the Republican-controlled House is another matter. SB 126 is the fourth effort in the past decade to get instate tuition rates for undocumented students.

Instate tuition for undocumented students goes way back

The efforts date back to 2002, when a graduate of Aurora Central High School went public with the high financial cost for college for undocumented students. Jesus Apodaca graduated in the top 10 of his class, and in September, 2002 he was a freshman at the University of Colorado-Denver, majoring in computer science. The cost was prohibitive, and Apodaca told The Denver Post that only donations and other “private financial support” made it possible for him to go to college.

But in going public, Apodaca made himself and his family a target. Then-Rep. Tom Tancredo, R-Colo., called upon the Immigration and Naturalization Service to have Apodaca and his family investigated, a request politely declined by the INS, which claimed it had higher priorities. In the wake of the publicity, Apodaca left UCD and graduated from another college, with financial support arranged by Gov. Bill Owens, according to a 2009 book authored by now-First Lady Helen Thorpe.

The following year, Rep. Val Vigil, D-Thornton, introduced House Bill 03-1178, which required the residency affidavit, three years of high school in Colorado and graduation or a GED in order to qualify for instate tuition. The bill got through two committee hearings and its second reading debate. But when HB 1178 came up for its final House vote, the bill instead got sent to the State Affairs Committee. The bill was killed a week later by that committee.

In 2004, legislators debated over competing bills. Vigil tried again with HB 04-1132, which was nearly identical to the 2003 effort, and that died in its second committee hearing. Harvey, then a member of the House, countered with HB 1187, which would prevent undocumented students from establishing Colorado residency to become eligible for in-state tuition rates. Harvey’s bill was just a Senate amendment away from heading to Owens for signature — but that amendment was the Democrats’ revenge. The bill was changed on second reading with an amendment by Sen. Paula Sandoval, D-Denver, to allow undocumented students who had graduated from a Colorado high school to obtain instate tuition rates. Despite a GOP majority in both chambers, Republicans could not get the amendment stripped off the bill, and the House refused to go along with it. The bill died on the last day of the 2004 session.

Vigil still wasn’t ready to give up. In 2005, his HB 1124 got only as far as House Appropriations, its second committee, before being killed.

Then came the 2006 special session. The General Assembly introduced 36 bills intended to deal with the illegal immigration issue, but the one with the biggest impact for higher education was HB 06S-1023. It required anyone attempting to “use a state service to produce a valid Colorado driver’s license or state identification card,” and applicants for state services, including a college education, had to sign affidavits stating they are U.S. citizens or permanent legal residents “or otherwise in the country legally under federal law.”

During the administration of Gov. Bill Ritter, only one bill surfaced that attempted once again to allow instate tuition for undocumented students.

SB 09-170 contained much of the same requirements in the previous efforts, although it left out the requirement that the undocumented student submit an affidavit for legal residency. And it had what should have been an easier path: it had Ritter’s support and a Democratic-controlled House and Senate to glide through. “As governor, I have long supported tuition equity as a matter of principle and policy. ...For me, this is about building a talented and well-educated work force and strengthening our economy,” Ritter said in a statement on his support.

But SB 170 had a major flaw — while undocumented students could qualify for instate tuition rates, colleges and universities were still required by state law to verify the legal residency status of all students.

And not all Senate Democrats supported it. Five were against it, and it lost on an 18-16 vote. The five included Sen. Morgan Carroll, D-Aurora, who was concerned about its constitutionality, and Sens. Lois Tochtrop, D-Adams County, Moe Keller, D-Wheat Ridge, Jim Isgar, D-Hesperus and Linda Newell, D-Littleton. Keller’s successor, Sen. Cheri Jahn, said this week she would support SB 126. When asked last week, Newell said she hadn’t read the bill and had no opinion on it.

But if Carroll were to change her mind, it might be enough to get the bill out of the Senate.

Carroll told The Colorado Statesman she has submitted language suggestions for SB 126 to deal with federal pre-emption issues. Carroll’s concerns pertain to a 1996 federal statute, 8-14-1623, which says “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 any U.S. citizen is also eligible for the same benefit.

Carroll pointed out that if a state granted instate tuition before the federal act was passed, then they were excluded from the prohibitions of the 1996 law. Eleven states have passed laws granting instate tuition after that, beginning in 2001. Carroll said those states could be sued under the 1996 federal law, and it recently became the basis for a challenge of the California law that granted instate tuition.

Last November, the California Supreme Court, in Martinez v. California Board of Regents, declared that state’s law constitutional and said it was not in violation of 8-14-1623. “If Congress had intended to prohibit states entirely from making unlawful aliens eligible for instate tuition, it could easily have done so. It could simply have provided, for example, that ‘an alien who is not lawfully present in the United States shall not be eligible’ for a postsecondary education benefit. But it did not do so,” the Court wrote. “Instead, it provided 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 a postsecondary education benefit. The reference to the benefit being on the basis of residence must have some meaning. It can only qualify, and thus limit, the prohibition’s reach,” the Court concluded.

Marianne@coloradostatesman.com