A face-to-face meeting between Metro State College leaders and key legislators on the contentious issue of undocumented student tuition brought a promise from Metro to consider new developments and spotlighted the tricky legal question behind the issue.Separate from the hearing, Wednesday brought Gov. John Hickenlooper’s first public statement on the issue, a carefully worded paragraph that tried to appeal to both sides in the undocumented tuition debate but leaned against Metro’s action. (Read the governor’s statement below.)
The hour-long session, held in a packed Old Supreme Court Chambers at the Capitol, was polite but intense at times, with a lively moment at the end. The meeting was for information only, and it wasn’t intended to produce a vote. The Joint Budget Committee requested the meeting with Metro leaders after college trustees decided to create a special tuition rate for undocumented students.
That trustee vote on June 7 sparked immediate criticism from some Republican lawmakers, but two developments in just the last week have cast a new light on the decision and played a role in Wednesday’s hearing.
Last Friday, the Obama administration announced that some undocumented youths who came to the United States at a young age will not face deportation and will be eligible for work permits. Such students are the people Metro’s new rate is intended to serve. Concern that undocumented college graduates couldn’t get jobs has been a key criticism of previous efforts to create a statewide tuition break, such as this year’s unsuccessful Senate Bill 12-015, also known as the ASSET bill.
On Tuesday, Colorado Attorney General John Suthers, responding to a question from the state community college system, issued an opinion saying Metro’s move violated state and federal law.
Speaking at Wednesday’s meeting, Metro President Steve Jordan said, “I have great respect for the attorney general and the role he plays. I believe we did a very comprehensive assessment of what we believe the legal groundwork is. … I’m not sure I’d clearly agree with the opinion of the attorney general, but we fully intend to take that into consideration … and to consult with folks, including the governor’s office.”
Jordan also said, “We will take into consideration the entire landscape as it exists today,” referring to the change in federal policy.
Speaking with reporters after the hearing, Jordan said Metro leaders will re-evaluate the issue in light of the recent developments, and “I suspect we’ll be calling a special board meeting.”
Jordan stressed that Metro is moving ahead for now with the new tuition rate but that it’s possible the board could change course, stick with its decision or just tweak the policy.
The Metro president explained at length how the undocumented rate is intended to ensure such students bear the full cost of their education and are not subsidized by the state. Subsidization also has been a central argument in the undocumented tuition debate. The ASSET bill attempted to create an unsubsidized rate using a different method than Metro.
But Deputy Attorney General David Blake, speaking at the end of the hearing, said lack of subsidization isn’t the issue. What’s key, he said, is that Metro’s tuition rate is a “public benefit,” and federal law prohibits states from offering public benefits to undocumented people without specific legislative authorization.
That’s the crux of the legal disagreement. “For us, they’re one and the same,” Jordan said, meaning that if tuition isn’t subsidized, it isn’t a public benefit. Metro is getting outside legal advice on the issue from the Denver firm of McKenna Long & Aldridge. The firm’s David Skaggs, a Democratic former congressman and former state higher education director, sat with Jordan at the witness table Wednesday but didn’t speak.
Jordan also was questioned on whether Metro was using the new rate to increase Hispanic enrollment to bolster its chances of qualifying as an Hispanic-serving institution, a status that makes institutions eligible to compete for certain kinds of federal grants.
He said that the designation requires a college have at least 25 percent Hispanic students who are legal residents but that Metro hopes attracting more undocumented students would help create “a campus that is welcoming to people of Hispanic background.” Jordan said Metro has about 120 undocumented students now and expects 200 to 300 more under the new policy.JBC chair Rep. Cheri Gerou, R-Evergreen, also was clearly concerned that Metro hadn’t been more communicative about its plans, which were being discussed within the college before the ASSET bill was defeated.
“So rather than wait for the legislative process … your board decided that you would go ahead and set this rate rather than wait for legislation?” she asked.
“That is correct,” Jordan replied.
The tone of the hearing was almost lawyerly at times, although disapproval was beneath the tone of Republican members’ questions. There was a hint of conflict right at the end, when Sen. Mike Johnston, D-Denver, challenged Blake on the attorney general’s opinion.
If the opinion is correct in its interpretation of public benefit, Johnston said, “We have dramatic problems with every public service we offer,” citing undocumented residents riding RTD buses as an example. Johnston was a prime sponsor of the ASSET bill.
There was light applause from the large audience, which Gerou quickly moved to stifle. She was trying to get the committee on to other scheduled business, and the hearing ended shortly after that.
EdNews asked the governor’s office if he had a comment on the attorney general’s opinion, and this response was provided by email:
“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. Governor Romney’s public comments suggest he is open to federal legislation as well. We support state legislation in this area, such as the ASSET bill in the last session, and look to see another opportunity next year. With regard to Metro State’s decision, we appreciate the underlying motive to do the right thing for undocumented students. We also respect the Attorney General’s opinion on the legal and constitutional merits. 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.”