John Suthers nixes undocumented student tuition discount, Metro disagrees

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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 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.

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts