BILL ANALYSIS
SENATE COMMITTEE ON EDUCATION
John Vasconcellos, Chair
2001-2002 Regular Session
BILL NO: AB 540
AUTHOR: Firebaugh and Maldonado
AMENDED: June 20, 2001
FISCAL COMM: Yes HEARING DATE: June 20, 2001
URGENCY: No CONSULTANT:Shervin Boloorian
and Nancy
Anton
SUBJECT: Public postsecondary education: residency
SUMMARY
This bill qualifies long-term California residents, as
specified, regardless of citizenship status, for financial
aid benefits and lower "resident" fee payments at the
California Community Colleges and the California State
University. The bill would be applicable to the University
of California only if the Regents so decide. The bill also
extends, to those specified, eligibility for financial aid
programs.
NEED FOR THE BILL
The author claims the bill is necessary to make higher
education affordable and accessible to worthy students so
that they can acquire a college education.
BACKGROUND
Current law precludes students who are not in the United
States legally from establishing residency in California
for the purposes of paying resident fees and
tuition. The courts have found this provision of law to be
constitutional, and as a result, non-resident tuition is
charged to undocumented students in California public
colleges and universities.
Existing law, generally known as the Uniform Residency Law,
establishes a variety of residency requirements for
students attending the California Community Colleges or the
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California State University. The determination of such
residency status is required in order to assess either
resident or non-resident fees and tuition. The Regents of
the University of California may, by resolution, make these
provisions of law applicable to the University of
California (and historically have done so).
Existing law also authorizes the California State
University and California Community Colleges to grant
tuition waivers and fee reductions to non-resident students
based on certain requirements (Sections 76140 and 89706 of
the Education Code).
Under federal and state law, undocumented students
regardless of academic achievement or financial need, are
not eligible for federal or state financial aid,
campus-based aid, or subsidized student loans.
In addition, current law does not preclude undocumented
students from enrolling in a California public colleges or
universities; they must, however, pay non-resident tuition.
ANALYSIS
This bill:
1) Exempts non-residents from paying resident tuition at
the California State University (CSU) and California
Community Colleges (CCC), provided that they:
a) Attended high school in California for three
or more years.
b) Graduated from a California high school.
2) Authorizes the CSU trustees to waive or reduce the
tuition rates for full- time foreign student
undergraduates of exceptional scholastic ability and
prior scholastic achievement;
3) Sets a 7% cap on the number of waivers the CSU may
grant to non-resident students and residents of a
foreign country.
4) Requests that the Regents of the University of
California take the same action, consistent with the
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provisions of this bill, to exempt non-residents from
paying non-resident tuition.
5) Makes all persons under the above requirement (1)
eligible to apply for financial aid benefits.
STAFF COMMENTS
1) Immigrant Taxpayers: Many long term California high
school students find that they graduate without having
legal residency status, and are precluded from
attending California Colleges because of their
non-resident student classification. These students
and their families pay taxes and invest in the system;
therefore, should they not, in return, receive
benefits?
2) Non-resident Fees: In the current year, UC,
undergraduate resident students pay $3,964 while
nonresident students pay in excess of $10,000. At the
CSU, undergraduate resident students pay $1,839 in
mandatory systemwide fees, while nonresident students
pay $7,380. Within CCC, resident students pay $11 per
unit while non-residents pay $130 per unit.
3) Legal History: The educational rights of undocumented
students is a longstanding issue that has been
debated within legislative and judicial arenas for
years. Current law was contested in a 1985 court case
Leticia A. v. Board of Regents of the University of
California . This challenge was filed by a group of
undocumented students who were not recognized as
California residents for purposes of determining
tuition. At that time, the court ruled that charging
nonresident tuition to undocumented students was
unconstitutional because both UC and CSU used a
different definition of "residency" for undocumented
aliens than it used for United States (U.S.) citizens.
The 1985 decision was later overridden by the
1990 Court of Appeal, Second District decision Regents
of the University of California v. Los Angeles County
Superior Court , also known as the Bradford decision.
In Bradford, the court held that current law was
constitutional and that the related Education Code
sections were to be upheld.
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Both Lettuce A and Bradford dealt solely with
the issue of defining "California residency" for
purposes of assessing nonresident tuition. Prior
legislation on this topic, AB 592 (Polanco/1991),
would have statutorily altered the definition of
"California residency" as it applies to college
tuition.
4) Prior Law : Similar statute has existed before. From
1974 until it was sunset in 1980, the Education Code
provided an exception to the Uniform Residency law
that permitted long-term California residents to
qualify as residents for the purposes of tuition.
This law made no distinction with regard to a
student's legal status in the United States.
5) Similar Bill Last Session . In 2000, AB 1197
(Firebaugh) was vetoed by the Governor. In his veto
message the Governor wrote, in pertinent part:
Pursuant to the Illegal Immigration Reform and
Immigrant
Responsibility Act of 1996 (IIRIRA), undocumented
aliens are
ineligible to receive postsecondary education
benefits based on state residence unless a
citizen or national of the United States would be
eligible for the same benefits without regard to
their residence (Title VIII, Section 1623).
In order for undocumented students to be exempt
from paying
non-resident tuition charges as called for in
this legislation, IIRIRA would require that all
out-of-state legal residents be eligible for this
same benefit. Based on Fall 1998 enrollment
figures at the University of California and the
California State University alone, this
legislation could result in a revenue loss of
over $63.7 million to the State.
In response to the veto message, the Chief Legislative
Counsel issued an opinion that AB 1197 did not violate
federal law since it did not tamper with a student's
residency status under federal law and because it
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excluded from out-of-state tuition exemptions foreign
residents as specified in the United States Code
(Title 8, Section 1101, Paragraph 15, (a).)
6) Pending Federal Legislation : HR 1918 (Canon/ R, Utah)
recently introduced in Congress, would allow states to
set their own residency rules without being required
to subsidize out-of-state residents. States would have
the authority to determine which immigrants, if any,
would be exempt from federal immigration laws.
7) Other States: The Governor of Texas recently signed
legislation similar to AB 540 allowing long-term
immigrants to pay in-state tuition at Texas public
colleges and universities if they:
a) Graduated from a Texas high
school.
b) Attended a Texas high school for
three years.
8) Ambiguity: Although this bill extends privileges to
long-term high school attendees and high school
graduates it is not clear why the author has selected
an arbitrary 3 year requirement as opposed to four or
five. As well, it is unclear if the student is able to
substitute California high school graduation with an
equivalent document or diploma.
9) Enrollment Projections: A California Research Bureau
report indicates that 53% of California's population
growth between 1990 and 1998 is due to international
migration. According to the California Post-secondary
Education Commission, California public
higher-education system already has some current
excess capacity and faces a powerful demand surge in
the coming decade known as "Tidal Wave II", whereby
between 1998 and 2010 the Commission anticipates an
increase of 714,753 students (35.8%) at all public
higher-education levels.
10) Confusion: The current language of the bill could be
interpreted to extend fee waiver privileges to any
person including those precluded from establishing
California residency by reason of federal law. If the
intention of the author is to only allow exemptions to
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California high school attendees and graduates then
staff recommends clarifying language to not extend
out-of-state tuition fee exemptions to all
undocumented persons.
11) Technical Amendment: The author's intent is to make
the students specified in the bill eligible for
existing financial aid programs, including the new
guaranteed Cal Grant program; however, the related
citation as drafted does not take this program into
account. Staff recommends a technical amendment to
qualify the specified students for Cal Grant
guaranteed program as well as other California
financial aid programs.
SUPPORT
The American Civil Liberties Union
Mexican American Legal Defense Fund
Community College League of California
Homeless Healthcare Los Angeles
California Federation of Teachers
California Teachers Association
University of Southern California
Huntington Park High School
Los Angeles Pierce College
National Council of La Raza
Services Immigrant Rights and Education Network
Thai Community Development Center
California Labor Federation, AFL-CIO
Los Angeles Mission College
Coalition of Orange County Community Clinics
Watts/Century Latino Organization
California National Organization for Women
South Central Family Health Center
Garibay Tax Services
University of California, Los Angeles
Citizenship Project
Asian Pacific Islander Caucus
Center for Third World Organizing
Plaza Community Center
Rancho Santiago Community College District
Individuals Letters
California Student Aid Commission
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OPPOSITION
Individual Letter