Suthers was asked by the Colorado Community College System to address the following question: "Without statutory authorization, do Colorado's state-supported institutions of higher education have the authority to grant discounted tuition rates to students who cannot prove they are lawfully present in the United States?"
His answer: "No. Discounted tuition is a 'public benefit,' which under current state law may only be provided to individuals who prove their lawful presence in the United States."The term "public benefit" is important, as Suthers stresses in the explanatory portion of the document. "Federal law...declares that anyone not legally in the country 'is not eligible for any State or local public benefit,'" he argues, adding, "Because the receipt of federal funds is generally premised on compliance with state and federal law, it is possible that providing a 'public benefit' in violation of this federal statute could jeopardize any federal funding a state agency receives."
This assertion is reinforced by the following: "State and federal law define 'public benefit' identically, covering 'any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.' By their plain terms, these provisions undisputedly apply to any 'postsecondary education...benefit' Metro State or any other state institution of higher education might provide.
"Thus," he goes on, "the question is whether nearly $9,000 in discounted tuition is a 'benefit' for purposes of these laws" -- and while he concedes that "there is little case law on this question to guide us," he reaches his conclusion based on the clarity of the language, a logical consideration of the facts and his conclusion that "Metro State's proposed analytical framework...is unworkable and cannot have been what the state and federal legislatures intended when enacting provisions prohibiting 'public benefits' to those who are unable to verify their lawful presence."
Page down to see the complete Suthers opinion, and to read the response of the Metro Board of Trustees. These interpretations aren't entirely divorced from politics. Early in the opinion, Suthers, a Republican, notes that the state legislature has repeatedly considered legislation about tuition breaks for undocumented students, most of them pushed hardest by Democrats. However, the proposals never passed.
He stresses the same point in a statement released with the opinion: "Just this year, the General Assembly again considered a bill -- the ASSET bill -- intended by its sponsors to create a new discounted tuition category for undocumented students. Once again, the bill failed. The decision by Metropolitan State College of Denver to proceed on its own to create a new tuition category, undeterred by the legislature's repeated rejection of specific authorizing legislation, is simply not supported by governing law."Metro State's Board of Trustees begs to differ. In a response to Suthers's take, the board notes that "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."
The statement concludes: "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."
What happens next? Metro can choose to move forward, but it will likely face increasing negative pressure from those who agree with Suthers, as well as the possibility of punitive legislative measures during the next session, if it does so. Moreover, other institutions may not be willing to follow Metro's lead until the fallout can be gauged. Note that University of Colorado Regent Joe Neguse previously told the Boulder Daily Camera that he was interested in introducing a similar tuition plan at CU, but afterward, he didn't return multiple interview requests from Westword on the subject.
Here's Suthers's complete opinion.
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