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1)The State of Texas recently enacted some modifications to its postsecondary residency statutes (S.B. 1528) and implementing Tx Coordinating Board regulations, some of which will affect undocumented students. (They are attached, for your light reading at the beach.) As I understand them, they make it slightly easier for these students to avail themselves of in-state tuition. I expect to monitor them over the course of the year, and would appreciate any feedback or war stories about these new provisions; if you know of changes to similar statutes or regulations in other states, please also send them my way. For information on recent changes to New York State residency tuition law, see [ ].

2) The Washington Legal Foundation has filed a complaint with DHS to challenge the Texas and NY statutes, although it is not entirely clear why it would have jurisdiction over these sections of IRRAIRA. To follow this story, see [ ] or the WLF documents at [ ]. Karin Fischer, “Washington Legal Foundation Challenges Immigrant-Tuition Laws,” Chronicle of Higher Education, 23 September 2005, A34.

3) In a related matter, FAIR has filed an appeal to the Tenth Circuit regarding its loss in Kansas federal district court in Day v. Sibelius [ ]; because the Court dismissed the Governor as a defendant, it is now Day v. Bond, and the arguments were heard the week of September 25, 2006. To see the FAIR briefs in the case, go to its website: I have also attached the District Court opinion, 376 F. Supp. 2d 1022 (D. Kan. 2005) In Fall, 2005, state data showed 221 students used this provision to enroll in KS public colleges. In January, 2006, a KS state representative filed a bill to eliminate the provision; hearings have not been scheduled.

4) I attach the recent revisions to the NM residency statute, both for American Indians and for the undocumented.

5) On November 21, 2005, the DREAM Act was reintroduced in Congress. For information on the NILC website, see [ ]

6) A recent NMSU/ Frontera Norte Sur (FNS) conference reported on the IIE figures of Mexican attendance in US colleges []

7) the same groups that filed the KS matter have filed in California in December, 2005. I have attached the pleadings.

8) In January, 2006, the Massachusetts legislature voted down a measure that would have accorded in state tuition to the undocumented.

9) On January 23, 2006 the Colorado AG issued an AGO (06-01/HE-HE-AGBBT) on whether the state authority had the authority to grant such in-state residency status; he held that the CCHE did not have such authority. PDF of the AGO is attached.

10) The Utah AG issued an Opinion, determining that the Utah statute granting tuition status to the State’s undocumented college students is constitutional. It is attached, above, from January 31, 2006. Deborah Bulkeley, “A Law Granting In-State Tuition to Undocumented Students is Legally Sound,” Deseret Morning News, 2 February 2006, A1. HB 7 has been introduced to repeal it, but no hearings have been scheduled.

11) On April 14, 2006, Nebraska became the 10th state to provide instate tuition to undocumented immigrants students who have attended and graduated from its high schools. It did so in dramatic fashion, overriding Governor Dave Heineman's veto. The bill (LB239) had passed by a 26-19 margin, but needed 30 votes for an override; supporters managed to change exactly 4 votes to get the necessary 30. Here is an interesting Washington Post story on the issue: [ ] and the bill (LB 239) is attached as well:

12) The National Association of College Admissions Counselors has made the DREAM Act an organizational priority and has provided national materials. Materials providing background information from NACAC are available online at: . The College Board has also made this a priority, and I attach a presentation made on the subject by the CB president Gaston Caperton at the October, 2006 HACU annual meeting.

The National Conference of State Legislatures (NCSL) issued a report detailing the 57 state statutes enacted in 2006 in 27 states, implicating immigration. Over 500 have been introduced. The July 3, 2006 report is available at: An updated version is available on the NCSL website, and is attached above. It is current through mid-August, 2006.

13) Two other states enacted legislation that affects international students, although not implicating in-state tuition status for the undocumented, who remain ineligible. Virginia (SB 542, 4/6/06) extended tuition status to political refugees, while Wyoming (SB 85, 3/10/06) enacted state scholarship programs available only to residents who are non-LPR or citizens; a pdf copy is attached. [W.S. 21-16-1303]

14) In addition, there are developments in other immigration categories, such as college developments for victims of human trafficking (T nonimmigrant visas). New Process Benefits Victims of Human Trafficking Seeking College Aid [Press release by US Dept of Education announcing college scholarship funds for T-visa holders] (May 9, 2006)

15) In the summer of 2006, two additional studies of DREAM Act issues were released, one by the Heritage Foundation (Backgrounder #1960), in support of Kris Kobach’s California state court litigation on in-state tuition residency [ ] The other was by CRS, and a copy is attached above: Jody Feder, RS22500 -- Unauthorized Alien Students, Higher Education, and In-State Tuition Rates: A Legal Analysis (July 20, 2006).

16) On September 30, 2006, Gov. Arnold Schwarzenegger did not sign S. B. 160, which vetoed a bill would have allowed undocumented students in California, already eligible for in-state tuition, to participate in the state’s financial aid grant programs. The enrolled version of the legislation is at:[ ] His veto message is at:[ ].

17) Proof that there is a god came the next month, October, 2006, when FAIR’s attempt to bring the Kansas federal case in a California state court, lost: Kobach has said he would appeal. It is in a pdf, above (Regents Order). Martinez et al v Regents of the University of California, CV-05-2064, (Cal Super Ct, Yolo Cty) [Order on Demurrers, Motion to Strike, and Motions by Proposed Intervenors] (Oct 6, 2006) (dismissing challenge to state residency statute). This action, dismissed on October 6, 2006, was the state equivalent of the Day v Sibelius federal case in Kansas, which was argued at the 10th Circuit in September, 2006.

18) In October, 2006, the School of Education at the University of Southern California produced a useful booklet for undocumented students in that State, containing information about AB 540, the statute that enables them to qualify for resident status.

19) Also in October, 2006, the Migration Policy Institute published a report on students who would benefit from the DREAM Act, New Estimates of Unauthorized Youth Eligible for Legal Status under the DREAM Act. The full 10 page report is available at [ ]. I believe that the report considerably overstates the extent to which students will take advantage of the DREAM Act, which is sure to turn on the details and requirements of the legislation, should it be enacted into law.

(Cal Sup Ct site)

In the most recent higher education immigration/residency case, a number of immigrant organizations filed a case bringing a challenge to Cal Educ Code § 68040; 5 CCR § 41904 and the State Constitution (postsecondary residency and financial aid provisions) in California Superior Court, County of San Francisco, in Nov, 2006, Student Advocates for Higher Education et al v Trustees, California State University et al. I have attached the pleadings, above. Citizen students with undocumented parents are being prevented from receiving the tuition and financial aid benefits due them, at least in part because the California statute is not precisely drawn (or imperfectly administered). In addition, there is interaction among several overlapping features of the system: immigration, financial aid independence/dependence upon parents, age of majority/domicile. In other words, this is hog-heaven for those of us who follow this stuff, quite apart from the inconsistencies that bedevil the students.

There has been an order to enter a consent decree, so the matter is resolved in favor of the plaintiffs. To punish those of us who might want to use this stuff, it has been entered into the official SF California Superior Court site, which is hard to find and harder to use:
(Cal Sup Ct site)

Note the buttons at the top and toggle the pages after you click ENTER. The order is short and sweet, and completely overturned CSU’s odd take on undocumented college student residency—that if a documented, majority age college student had undocumented parents, he or she was not able to take advantage of the CA statute according the undocumented in state residence, even if the student were otherwise eligible.

21) In 2007, there are still uncertainties over what the larger restrictionist GA and AZ state statutes mean for this issue, and things are in flux in these two states. GA will be holding public hearings in April, 2007, to get public input on how they should proceed, but the behind-the-scenes waiver system that allows each public college to use waivers up to 2% of their headcount may change. The statute begins on Jul 1, 2007: . In Texas, Gov. Perry said he would not accept or sign any changes to the state law. In 2001, Perry signed the original legislation that established HB 1403: . There has also been action in Utah to repeal its residency statute, but that has not occurred: Arizona officials do not know what they will do with the statute: The Arizona Republic (Phoenix), January 3, 2007, A-1, ARIZONA'S COLLEGES STRUGGLE TO ENFORCE NEW TUITION STATUTE, Yvonne Wingett, The Arizona Republic

22) For useful cites to the increasing number of bills on state and local anti-immigrant ordinances, see: ; ;

23) For those who are following the issue of tuition status for undocumented students, here is a link to a Congressional Research Service background report on the proposed "DREAM Act" published January 30, 2007:

24) Early in 2007, Minnesota legislation was introduced, both to give residency and to restrict it.
Jean Hopfensperger, Immigration Proposals Clash; The Governor and DFL Lawmakers Offered Differing Views on Issues Involving the State's Immigrants, [Minneapolis] Star Tribune, February 15, 2007, at 5B (concerning DREAM Act legislative proposals in Minnesota). At the end of a complicated session, on May 30, 2007, Governor Tim Pawlenty (R-Minnesota) signed into law an interesting partial victory for in-state/ residency tuition advocates.  Under the MN bill, a number of the state college system institutions will eliminate nonresident rates altogether, allowing anyone, apparently regardless of state of residence or immigration status, to qualify for the flat (formerly in-district) rate: H.F. 1083 (85th Leg. Sess. 2007)

Bill analysis:

The entire bill history is at:


The press coverage on this has not yet fully sussed the entire legislation, which was complex and which originally had a specific DREAM Act provision that was stripped. For a good story, but one that does not specifically mention this issue, see: Megan Boldt, Reluctant governor OKs school spending; Bill adds $794M over 2 years, restores aid for special education, Pioneer Press, May 30, 2007, available online at:

This legislation somewhat finesses the larger issue (and has a 2009 sunset), but this approach has a cat’s feet aspect to it, removing the immigration dimension. As so many of these DREAM Act kids are likely to attend two year colleges. In Texas, even before HB 1403 passed, some community college districts had moved to this practice, led by the Houston Community College System, which was the real precursor of this practice in Texas. Many of these students enroll in transfer curricula, but unfortunately, never end up transferring to senior colleges.

25) On February 28, 2007, Inside Higher ran a story interviewing Prof. Kris Kobach and me, both of us absolutely sure we are on the side of the angels. (Hint: I am) . He and I are scheduled to debate the subject at MPI in DC, April 6.