April 06, 2011 at 4:49 pm
By Glynis Kazanjian
When the full House of Delegates begins debating and amending bills on Thursday that would grant in-state tuition to illegal immigrants, they may be starting down what other states have found to be a thorny path.
Currently 10 states offer in-state college tuition rates to illegal immigrant students: Texas, California, Utah, New York, Washington, Illinois, Kansas, New Mexico, Nebraska and Wisconsin.
In 2003, Oklahoma passed a law allowing illegal immigrants to receive in-state tuition. It was repealed by legislation in 2008. State Rep. Randy Terrill, a Republican who authored the bill, said the decision was based on several principles, not just the cost of subsidizing the in-state tuition.
“States ought not to be in the business of subsidizing illegal aliens,” said Terrill, making arguments similar to those used by Maryland opponents. “Every one dollar you make available to an illegal immigrant is one dollar you are not giving to one of your citizens. To grant illegal immigrants in-state tuition rates directly discriminates against non-resident U.S. citizens from surrounding states. That is a direct violation of the equal protection clause.”
Oklahoma also passed bills in both houses that would disqualify children born in the U.S. to illegal immigrants. A final bill is not expected to make it to the governor’s desk.
“It will either be softened or sidetracked,” said an Oklahoma official in the Department of State Finance who requested anonymity.
This year, legislators in Washington, Nebraska, Kansas and Texas tried to repeal their in-state tuition laws. However, legislative efforts failed in all but Texas, which still has active repeal bills in both legislative houses.
Utah also tried to strengthen eligibility requirements. Utah’s bill, which would have required tuition recipients to pay income tax, died in the state Senate. The proposed Maryland law already contains a similar requirement.
Arizona, Colorado, Georgia and South Carolina have laws specifically prohibiting illegal immigrants from receiving in-state tuition, according to the National Conference of State Legislatures.
There are at least three pending lawsuits outside of Maryland that are challenging colleges for being out of compliance with federal law by allowing illegal immigrants to receive in-state tuition. The lawsuits claim the state laws violated the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which “prohibits states from providing a postsecondary education benefit to an alien not lawfully present in the United States on the basis of residence unless any U.S. citizen or national is eligible for the same benefit.”
The most notable case, Robert Martinez v. Regents of the University of California, is a class action suit in California state court. Kris Kobach represents the plaintiffs on behalf of the Immigration Reform Law Institute. Kobach has since been elected Kansas Secretary of State. The case has been appealed to the U.S. Supreme Court, and a decision on whether the justices will hear it is expected in late spring, Kobach said.
Kobach is also behind a second suit, Mannschreck v. Regents of the University of Nebraska, which was filed in Nebraska court. Kobach said the plaintiffs were required to seek relief from a federal agency before the case can proceed, and the case is on hold until the U.S. Justice Department decides if it will offer them anything. The Department of Justice did not respond to inquiries about the lawsuit.
The defendants argue that because they went to high school in the state, they can receive in-state tuition, Kobach said. This is a loophole; the law prohibits using residency to determine eligibility.
The third suit, Immigration Reform Coalition of Texas v. State of Texas (University of Houston), is scheduled to have its next hearing in Harris County District Court on June 13.
Kobach said if Maryland passes in-state tuition for illegal immigrants, the state will be doing a disservice to the citizens of Maryland.
“One, [Marylanders] are going to be spending a lot of money subsidizing the in-state tuition rates of illegal aliens,” Kobach said. “The amount of money will depend on how many illegal aliens take advantage of it. You can go from a low of around $1.1 million, which is what Kansas spends every year, to a high of around $208 million, which is what California now spends.”
Three Montgomery County taxpayers are suing Montgomery College for providing county rates to illegal immigrants students who graduated from county high schools.
If the legislation passes, Gov. Martin O’Malley is likely to sign it, said spokesman Shaun Adamec. Opponents have said they may try to petition the law to referendum if it is signed.
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