Judge throws out suit against Montgomery College immigrant tuition

By Len Lazarick

Montgomery College sealA Montgomery County Circuit Court judge has thrown out a lawsuit against Montgomery College that tried to stop its policy of granting in-state tuition to county residents who do not have legal immigration status.

Judge Marielsa Bernard, the only judge of Hispanic ancestry among the county’s 20 judges and one of only two in Maryland, dismissed a lawsuit on Tuesday that was filed by three county taxpayers in January. They were trying to block the college’s policy of granting local tuition rates to anyone who attended local schools and lived in the county, regardless of citizenship.

The judge’s ruling did not deal with the fundamental legality of the college’s action. She dismissed the suit because she said the three Montgomery County taxpayers did not have the right to sue the college’s Board of Trustees under federal or state law.

This year, the General Assembly passed a law that would give illegal immigrants a path to receiving in-state tuition at Maryland state colleges, starting with giving them in-county tuition to community colleges.

More than 100,000 Marylanders signed petitions to put that law on the ballot in 2012. A lawsuit from an immigrant activist group is challenging those petitions, which were certified by the state and local elections boards.

The new law establishes a statewide entitlement that Montgomery College had been granting for some years.

Bernard said in her opinion that the plaintiffs could not attempt to enforce federal or state law because they were somehow injured by the college policies.

The judge based her decisions on the clause on the supremacy of federal law in the U.S. Constitution and on Maryland statutes that give the Maryland Higher Education Commission the authority to enforce state policies for tuition reimbursement.

“The court agrees with the board’s position that even if this court had the power to recognize a common law taxpayer-plaintiff claim for a violation of state tuition, the Maryland’s legislature’s existing statutory scheme entrusting enforcement … to the Maryland Higher Education Commission precludes the recognition of any common law individual’s right to bring such a claim,” the judge said in her decision.

The national organization Judicial Watch filed the lawsuit on behalf of Michael Lee Philips, Patricia Fenati and David Drake. The three taxpayers on the suit said they were paying for the reduced tuition that students without legal immigration status could claim.

Lead attorney Paul Orfanedes said Judicial Watch was still analyzing the judge’s decision, and examining its options.

He said the judge overruled “longstanding doctrine” about taxpayer rights, and “we respectfully disagree with the court.”

“The fight is going to continue,” he said. According to its website, Judicial Watch is “a conservative, non-partisan educational foundation, [that] promotes transparency, accountability and integrity in government, politics and the law.”

College applauds decision

The college was happy about the decision, although the judge did not really decide whether the policy was legal.

“The college’s policy of providing the lowest tuition rate to Montgomery County high school graduates places a college education within their reach,” said Stephen Kaufman, chair of the Montgomery College Board of Trustees, which is appointed by the governor. “This policy helps the college leverage the county’s investment in K-12 public education because higher education advances both the individual and the broader community.”

More than 60,000 students enroll in Montgomery College’s credit and noncredit courses each year, with as many as 90% remaining in the state to support the county and the state’s economic growth, the college said.

“As our new mission statement says so eloquently, we empower students to change their lives,” said DeRionne Pollard, president of Montgomery College. “Our tuition policy ensures our mission is more than words; our policy brings our mission to life.”

Judge Bernard’s biography on the site of the Maryland Hispanic Bar Association said she is one of its founders and a past president, and active in other Hispanic organizations. The bio says she is a native of Montgomery County, the daughter of a Peruvian mother and the granddaughter of a Portuguese immigrant from Bermuda. Bernard attended Thomas Wootton High School in Rockville. She earned a bachelor’s degree from Loyola College and a law degree from the Catholic University of America.

About The Author

Len Lazarick


Len Lazarick was the founding editor and publisher of MarylandReporter.com and is currently the president of its nonprofit corporation and chairman of its board He was formerly the State House bureau chief of the daily Baltimore Examiner from its start in April 2006 to its demise in February 2009. He was a copy editor on the national desk of the Washington Post for eight years before that, and has spent decades covering Maryland politics and government.