Mike Rosen Show, John Suthers, March 8, 2012

Station:   850 AM, KOA

Show:     Mike Rosen Show

Guest:     Suthers

Link:       http://www.850koa.com/cc-common/podcast/single_page.html?podcast=shows_rosen

Date:      March 8, 2012

Topics:    ASSET, Higher Education, DREAM Act, SB-15, Undocumented Residents, Illegal Aliens, In-state Tuition, Plyler vs. Doe

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MIKE ROSEN:  Yesterday, we talked about this bill:  Senate Bill 15. The official title is “A Bill for an Act Concerning Creating an Optional Category of Tuition at State Institutions of Higher Education.”  The title of that bill isn’t all that informative.  The name of the bill, if it were accurately worded, would be “A Bill to Create an Illegal Alien Tuition Subsidy”, or “A Bill Pandering for Hispanic Votes”.  That’s the intent of the bill, the latter, and the first is what it actually does.  It creates a highly discounted tuition rate at state colleges and universities for students who are here illegally.  Now, this isn’t the first iteration of this bill.  It has surfaced before and hasn’t passed.  It’s also almost identical to bills being presented in other states with exactly the same purpose.  And as I was going through the bill yesterday and dissecting the wording, and the wording is so clever.  You’ve got to give credit to our law schools for teaching students how to be devious (laughs) and deceitful in the language that they use.  You have to be very suspicious and appropriately so, to actually get at the real meaning of this.  Nowhere in here does it talk about illegal aliens, which is what this bill is all about.  At the very end it says, “Verification of lawful presence in the United States is not required for persons applying for the tuition classification.”  “Tuition classification” of course means steep tuition discount.  And there was one paragraph in here that as I read yesterday I knew they were trying to get at something, but I didn’t know what they were trying to get at, but all of my suspicious instincts were lighting up.  And it’s that part of the bill that reads as follows, and this is from the summary of the bill:  “Eligibility for the tuition classification (discount) is not based upon residency.  A student classified as a standard rate student for tuition purposes”… (that’s the discount rate, that’s their euphemism for the highly discounted rate—they call that the ‘standard rate’)… “A student classified as a standard rate student for tuition purposes shall not be counted as a resident and the tuition classification shall not be deemed to establish residency or domicile for any person.”  I was wondering why this wording was in there, then I got an email from a listener who brought to my attention a federal law – this is Title A, Chapter 14, Section 16-23, having to do with the limitation of eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education benefits.  There’s that word “residence”, and there’s the flag.  Now just to read one more sentence from that federal law.  It says,  “An alien that is not lawfully present in the United States shall not be eligible on the basis of residence within a state for any post-secondary”… (mean college)… “education benefit unless a citizen or national of the United States is eligible for such a benefit, without regard to whether the citizen or national is such a resident”.  To put that in simpler terms, if a state provides a discount for those here unlawfully, who are in that state, they can no longer charge a higher rate of tuition for lawful residents of any other  state.  And as you understand, one of the ways that college students who are Coloradoans have their higher education subsidized is by charging a much higher tuition rate to students who come here from other states.   For example, a Coloradoan, lawfully here, going to CU Boulder might pay $8000 a year in tuition.  Someone coming from Kansas to CU Boulder might pay $30,000 in tuition.  So this too-cleve-by-half wording in SB-15 is intended to circumvent that federal law.  I called Attorney General John Suthers yesterday, who was in Washington on his way back to Denver—we talked over cell phone– since he’s rendered some opinions in this area, when earlier versions of a bill like this has been presented, and asked him if he could come on the air and clarify things today, and we’ve got him here with us right now.  Attorney General Suthers, thanks for joining us!

JOHN SUTHERS:  Glad to be with you, Mike.

MR:  All right.  That was my summary.  I hope it was understandable.\

JS:  And a pretty good one.

MR:  I know I don’t need to inform you abou this.  You’re better informed about it than I am, but following our conversation yesterday, you said you’d look into this when you got back in Colorado.  You are back now.  I’ve got to take a break right here, but as soon as we come back can you explain what they are trying to do, and whether they’ll be successful in circumventing that federal law.

JS:  I’ll sure try.


MR:  All right, let’s get right back to Attorney General John Suthers.  So, John, you’ve had a chance to look at this Senate Bill 15, which is designed to provide a tuition subsidy for illegal aliens.  What’s the risk that we could be sued by somebody from Kansas who doesn’t want to pay $30,000 at CU, (who) would rather pay $8,000, if this bill were to pass, and would argue that federal law requires, if this bill were to pass, that that discount applies to people from Kansas as well.

JS:  Well, let me give you a little bit of history here first, Mike.  In January of 2006 the Colorado Commission on Higher Education asked my office for a formal opinion as to whether they could by policy regulation grant in-state tuition status to undocumented aliens.  And at that time, we said, “No, you cannot,” because of two federal laws that would stand in the way.  Number one was a broad one, (the) Personal Responsibility and Work Opportunity Reconciliation Act of 1996 that said undocumented aliens are ineligible to receive any state or public benefit unless the state legislature affirmatively provides for their eligibility.  Secondly, and most importantly, there was the “Illegal Immigration and Reform and Immigrant Responsibility Act of 1976, that said aliens that are not lawfully present in the United States are not eligible for in-state tuition unless that state also makes that tuition rate available to residents of other states, which you mentioned.  So you couldn’t give foreign nationals preference over residents of other states.  And so we said you can’t grant in-state tuition status to undocumented aliens unless there is affirmative legislative action, and you have to do so on a residency neutral basis.  As you know, Mike, since 2001 there’s been a legislative act overturned, this 1996 legislation and they call it  the DREAM Act, and it’s been kicking around Congress.  In the meantime, several states, and now Colorado, have said okay, we’ve got to come up with a residency neutral way of getting this done.  And so what twelve states have done, and what Colorado is apparently attempting to do here, is say “we’re going to permit students to become eligible for in-state tuition on criteria other than their residency.  In other words, if they graduate from a state high school, if they’ve been here for at least… attended that high school for at least two or three years, they’ve applied for state college or university admission and they’re eligible for admission, then they can be granted a specific tuition status.  Presumably, they are perfectly willing to say that if a resident of Kansas attends a prep school in Colorado, for example, for three years, graduates, and wants to attend the University of Colorado, they can get this status also.  As I say, twelve states have enacted similar legislation:  Texas, California, Utah, New York, Washington, Illinois, Kansas, New Mexico, Nebraska, Wisconsin, Maryland, and Connecticut.  Two cases have been filed.  In California, students paying out-of-state tuition attending California universities filed a lawsuit saying this is just an end-around and I’m still being discriminated against.  The District Court in California said, “No.”  The California Court of Appeals reinstated the lawsuit.  But in November of 2010 the California Supreme Court upheld this method for providing in-state tuition, and said it did not conflict with federal law.  And on June 6, 2011, the United States Supreme Court denied cert in that case.  A similar case was brought by a Missouri resident who was attending college in Kansas, saying that they were being denied the status, and it was unlawful discrimination under federal law, and that case was dismissed for lack of standing, and the US Supreme Court declined cert, way back in June of 2008.

MR:  All right.  So, just to clarify, the only reason those cases were brought by students legally here in one state, in order to get a discount in another state’s college, the only reason those cases were brought was because of laws providing that discount for people here illegally.

JS:  Yeah, I mean, basically what they said was that despite the way they were framed, they were still discriminating in favor of illegal aliens against residents of others states.  And, you know, the California Supreme Court, which is the highest court that’s actually considered it, said no, this is residence neutral if it’s based on three years attendance in a high school or graduation

MR:  And the California Supreme Court is a very liberal Supreme Court…

JS:  Absolutely, as ours has historically been

MR:  So, if you don’t mess with giving tuition discounts for illegal aliens, you don’t even have to run the risk of these kinds of suits from people who are here legally, in other states.

JS:  Absolutely.  If you, say,…. If you’re from a foreign country you’ve got to pay out-of-state tuition, you don’t run a risk of those suits.  But this is a work-around these federal statutes and it looks (like) so far, that twelve states have pulled it off.

MR:  (Sighs)  The wording, and you’ve had a chance to look at this Senate Bill 15, is your reaction the same as mine, that this is intricately clever and trued the wording in this bill to disguise what the bill’s real intentions are.

JS:  Yeah, Mike.  You kind of stated it.  This is lawyering at its finest, or worse, depending on your perspective.  It’s obviously a clear run-around.  There’s a specific provision in the bill that said “eligibility for classification as a standard rate student for tuition purposes pursuant to this section is not based upon residency.”  It’s resident neutral.  And then it says very specifically, “The requirements are that you attended a public or private high school in Colorado for three years or more immediately preceding the date that the student graduated from a Colorado high school, and you’ve been admitted to an institution in Colorado within twelve months after graduating from high school or earning a certificate, you get this tuition rate.

MR:  And, if there were some kind of a test to determine whether you were here legally in high schools, you wouldn’t be able to attend that high school to begin with.  But if you’ve gotten away with attending that high school as someone in the country illegally, then we’re going to reward you by giving you a discount if you go to college.

JS:  Well, that a whole ‘nother legal situation…

MR:  Yes, it is.

JS:  For some incredible reason, in 1982, the United States Supreme Court, in a case called “Plyler vs. Doe” —  I think it was a San Antonio case, said any child regardless of immigration status is eligible for a free primary or secondary education.  I’ve never been able to find that in the United States Constitution but they said it’s in the fourteenth amendment.

MR:  Yes, which was all about slavery, by the way, but here’s another clever turn of a phrase: “Unless the governing board of an institution of higher education…” (think of CU, so let me replace it just to make it flow more evenly)… “Unless CU adopts a policy stating it will not offer this discounted tuition rate to illegals, the bill requires CU to classify a student” …yadee-yaddaa … that is to give that discount.  So if the school does nothing, the default is the discounts in place.

JS:  That’s right.  They have to affirmatively opt out.

MR:  Okay. So, I don’t like the device being used here, I don’t like the end-run, I don’t like the scheming in this bill, and I’m opposed to it in principle, in any event.  But I just wanted to …

JS:  Yeah.  And I hope the legislature, you know, understands what it’s all about, and, when they’re voting up or down on it, I hope they’re savvy enough to understand that it is a complete run-around these two federal statutes.

MR:  And depending on how our Supreme Court would rule, there’s a risk that if this were to pass and be enacted that the state of Colorado’s colleges and universities – state schools—would no longer be able to charge that higher rate to people from other states.  There’s at least the risk of that.

JS:  There’s a risk, yeah.

MR:  Okay.  All right.

JS:  Thanks, Mike!

MR:  Thank you, Attorney General John Suthers….