Suthers: Metro State's Illegal Immigrant Tuition Rate Unlawful

Metro State: We Don't Believe We Violated State Law

Colorado Attorney General John Suthers said the Metropolitan State College of Denver does not have legal authority to create a discounted tuition category for illegal immigrants.

Suthers said in an opinion released Tuesday that the Legislature must decide whether to create a new tuition rate for illegal immigrants and that Metro State's decision not supported by governing law.

“After carefully reviewing the state and federal law in this area, my office has concluded that Colorado’s state-supported higher-education institutions cannot create discounted tuition categories for students who are unable to prove their lawful presence in the United States,” said Suthers. “Although federal law allows state legislatures to pass statutes affirmatively providing tuition benefits to undocumented students, the General Assembly has repeatedly declined to legislate in this area.

“The General Assembly may continue to consider this issue,” Attorney General Suthers said. “In the meantime, however, state-supported institutions of higher education in Colorado cannot act unilaterally. Under federal law, they must await a decision by the legislature.”

Suthers went on to say he is disappointed Metro State did not consult with his office before making their decision this month.

The Republican-led House rejected a bill in April that would have let colleges create a discounted tuition category for illegal immigrant students who graduated from Colorado high schools.

Metro State responded with a statement Tuesday night:

When Metro State’s Board of Trustees voted to approve the Colorado High School/GED Nonresident Tuition rate earlier this month, we reviewed current state statute and deemed this as a legitimate policy within the Trustees’ authority based on:

1) The structure of nonresident tuition rates by state higher education institutions are not required to be authorized by the state legislature; and 2) This nonresident tuition rate contained no state subsidy.

It was the Board of Trustees and Metro State’s administration intent to enhance our role and mission and provide access and affordability to all of Colorado’s high school students. It was never our intent to disregard Colorado’s law or its legislature, and we do not believe we have done this.

While Suthers' opinion does not forbid the college to proceed with the new tuition rate, a footnote on his legal brief warns that federal funding they receive could be jeopardized if they violate a law prohibiting state and local public benefits from going to illegal immigrants.

Metro State's policy, which officials set to take effect this fall, could benefit an estimated 300 students. The tuition classified as a second nonresident rate would be about $3,358 per semester. That's about half the amount currently for nonresident tuition. Tuition for in-state students is $2,152 per semester.

The college said they went to great lengths to make sure no state funds subsidized the tuition of illegal immigrants. For instance, the new tuition rate did not include a state subsidy given to in-state students, and illegal immigrants would pay an additional amount for using buildings constructed with state money.

But Suthers said that a reduced tuition rate is in itself a public benefit under federal and state law. In 2006, lawmakers passed a bill forbidding local governments from granting some benefits, excluding emergency services, to illegal immigrants.

The Colorado Community College System asked for Suthers' opinion on whether Metro's action was legal.

Terrance Carroll, a Metro State trustee, said in a tweet that Suthers issued an opinion to support "his ideological & political beliefs not the law."

Republicans who opposed the bill this session were upset over Metro State's decision and sent a letter to Democratic Gov. John Hickenlooper asking him to intervene. At the time, Hickenlooper's office said he would wait for Suthers' opinion before weighing in.

"We should encourage all kids to complete their studies, at whatever level that is. The president made this clear with his executive order last week," Hickenlooper said in a statement.

He said he appreciates Metro State's motive, but added, "We also respect the attorney general's opinion."

"On balance, we think the better and more certain approach to this problem is not to proceed institution by institution, but rather to pass legislation at the state and federal level," he said.

Thirteen states, including California and Texas, have crafted and passed tuition legislation for illegal immigrants and they have survived legal challenges.

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