In-State Tuition Benefits for Illegals Stir Controversy

Brigette Brennan feels pretty well educated after more than four years at the University of Kansas - but there's something she can't understand.

She doesn't understand why Kansas won't grant her the same in-state tuition status that it happily bestows on illegal immigrants.

In other words, why is she - a U.S. citizen, a Kansas high school graduate and a four-year resident of Kansas - paying more for her college education than those who aren't legally supposed to be in the U.S. in the first place?

Surprisingly, Brennan's experience is fairly common. Indeed, state colleges and universities in nine states openly provide in-state college tuition benefits to illegals that they do not offer to U.S. residents. Defenders of U.S. students' rights to receive equal tuition rates in their own country say such policies are flatly illegal.

"Absolutely," charges Washington Legal Foundation (WLF) chief counsel Richard Samp. WLF is a nonprofit public interest law and policy center based in Washington, D. C., with members and supporters in all 50 States.

Samp says that federal statute, 8 U.S.C. Section 1623, which was adopted in 1996, was designed to ensure that any state that offers discounted, in-state tuition rates to illegal aliens on the basis of their residence in the state must offer the same discounted rates to all U.S. citizens.

The nine states that don't offer the same discounted rates to all U.S. citizens as the law requires are: New York, Texas, California, Kansas, Illinois, Utah, Oklahoma, New Mexico and Washington.

"The statute is not enforced," explains Samp simply. Additionally, he tells NewsMax, the states sponsoring the initiatives favoring undocumented residents rely on a word-game to justify the difference. They say that the benefit is not tied to "residence" but is simply an attempt to reward illegal aliens who graduate from those states' various high schools - irrespective of their ties to the state.

The difference is substantial. In-state tuition can save community college students $1,000 per year, undergraduates $5-6,000 per year and graduate-level students in professional schools as much as $15,000 per year.

The Illegal Plot Thickens

The regulations allowing the in-state benefit to illegals in the listed states all require that the students must be graduated from a public high school, or must have received the equivalent of a high school diploma, in the state.

What's more, United States District Court for the District of Kansas Judge Richard D. Rogers last summer dismissed a group of plaintiffs' claims against Kansas higher education officials, ruling that Congress intended Section 1623 to be enforced solely by the Department of Homeland Security (DHS). In other words, it referred those complaining about the preferential treatment of illegals back to the DHS.

In response, WLF dutifully filed a complaint with the DHS (specifically, the Office of Civil Rights and Civil Liberties, which is charged with investigating complaints alleging violations of rights arising under federal immigration laws), specifically challenging Texas's policy of favoring illegal aliens over U. S. citizens in the award of in-state tuition rates at colleges and universities.

On September 7, 2005, WLF filed another complaint with DHS, challenging a similar policy in the State of New York.

Searching for a Forum That Does Not Exist

But Samp tells NewsMax that it recently received a letter from the Office of Civil Rights and Civil Liberties stating that they had examined the complaints and have concluded that they do not fall within their purview. According to the missive, the two complaints have now been shuttled off to DHS's Office of General Counsel.

Samp betrays frustration with the unwelcome development, which he suggests may be laid at the foot of confused bureaucracy at the relatively new DHS. Following 9/11, DHS was organized to consolidate many previously independent agencies and functions, including immigration enforcement.

"They seem to be geared up only to handle complaints like the racial profiling of Muslims," Samp laments to NewsMax.

In any event, the scenario grows even more complex.

This week, on behalf of WLF and various plaintiffs, Samp tells NewsMax, he filed in the United States Court of Appeals for the Tenth Circuit in Denver an appeal of Judge Rogers' Kansas ruling dismissing the case.

In this latest filing, Samp alleges among other things that "DHS has resisted all entreaties to enforce the statute."

The Perfect Plaintiff

At the heart of the appeal and the original case are the facts and circumstances surrounding the experiences of Brennan, who is enrolled as a fifth-year undergraduate student at the University of Kansas (KU).

Brennan is a U.S. citizen who grew up in the State of Missouri. While living in Missouri, she graduated from Bishop Miege High School, which is located in Kansas. She has resided in Lawrence, Kansas ever since she began her studies at KU.

She repeatedly has asked to be allowed to pay college tuition at in-state rates, but has been told by KU officials that she does not qualify for those rates - despite living in Kansas and having graduated from a Kansas high school.

"Brigette Brennan believes that [Kansas officials] are violating her rights under federal law and the U. S. Constitution by charging her higher tuition rates than they charge to illegal aliens who attend KU," says language in the appeal. "In particular, she believes that [they] are violating 8 U. S.C. Section 1623, which requires states that offer in-state tuition rates to illegal aliens ‘on the basis of residence' to offer the same tuition rates to all U. S. citizens, regardless of residence."

Samp emphasizes to NewsMax, as well as in his various filings, that "Unless DHS steps forward and adopts measures designed to enforce Secton 1623, immigration-rights groups may be emboldened to encourage yet other states to flout federal law."

There are other states champing at the bit to provide in-state tuition to illegals.

By example, Virginia Gov. Mark R. Warner unsuccessfully pushed an instate tuition bill for illegal immigrants this year. Warner's bill requires that the student graduate from a Virginia high school and attempt to secure legal status while residing in Virginia for at least five years. The student would also need to provide documentation of paid Virginia income taxes for at least three years.

Also this past year, an in-state tuition benefit in Massachusetts was beaten back, with State Representative Marie Parente reading a statement to the legislature on behalf of the members of 9/11 Families for a Secure America:

"The members of 9/11 Families for a Secure America, representing the families of over three hundred of the victims of the September 11 attacks, ask you to defeat House Bill 1230 that would grant instate tuition to illegal aliens. The murders of our loved ones were made possible by this country's failure to enforce its immigration laws ..." Parente recited.

The Dream Act

As the legal case continues over why illegals should receive rates lower than those available to ordinary Americans, the Development, Relief and Education for Alien Minors (DREAM) Act, sponsored by Senate Judiciary Chairman Orrin Hatch, R.-Utah, has been percolating around Capitol Hill. It would, among other things, basically kill off Section 1623, further making illegal aliens eligible for citizenship if they complete two years of college. It has yet to be voted on.

Sen. Russ Feingold, D-Wis., was a co-sponsor of "Dream," and defined his support this way: "Well, it's the children of illegal immigrants," he said. "They may be technically illegal, but the intention of the bill is for kids who have grown up, gone to high school with other kids whose parents happen to be illegal, to give them the same opportunity to apply for certain programs that other kids would have. I think that's a good goal. I think it makes sense, it fits with Americans' sense of fairness."

For now, Congress, DHS and to some extent the judiciary apparently remain frozen on the issue of whether to enforce the letter and spirit of the law of the land, finally interpret the law, or legislate it out of existence.

Meanwhile, about 1.7 million illegal minors reside in the U.S., according to the Pew Hispanic Center, a Washington think tank. The Washington Times has reported that 3,700 undocumented immigrants are taking advantage of the lower in-state tuition just in Texas.

The Texas bill that enabled them to do so will soon create a new dilemma, however, as the first wave of students it helped prepare to graduate. They will find themselves with newly minted degrees and yet theoretically unemployable due to their undocumented status.

Their legal limbo will make Texas the legal crucible for what happens to the new class of educated, illegal graduates.

In a sense, those graduates will soon experience the same painful waiting game as U.S. citizen Brigette Brennan.