BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-2012 Regular Session
BILL NO: AB 844
AUTHOR: Lara
AMENDED: June 9, 2011
FISCAL COMM: Yes HEARING DATE: June 15, 2011
URGENCY: No CONSULTANT:Kathleen Chavira
SUBJECT : Student Government
SUMMARY
This bill authorizes any student, including a person
without lawful immigration status or AB 540 students, to
serve in any capacity in student government and to receive
any grant, scholarship, fee waiver, or reimbursement for
expenses at the California State University and the
California Community Colleges, consistent with federal law,
and requests the University of California to comply with
these same provisions.
BACKGROUND
Current law, (established by AB 540, Chapter 814, Statutes
of 2001) exempts specified California nonresidents from
paying nonresident tuition at UC, CSU and the CCCs if they
meet all of the following:
1) Attended a California high school for three or more
years.
2) Graduated from a California high school or attained an
equivalent degree.
3) Registered or attended an accredited California higher
education
institution not before fall of the 2001-02 academic
year.
4) Filed an affidavit, if an alien without lawful
immigration status,
stating that the student has filed an application to
legalize their immigration status or will file such an
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application as soon as they are eligible to so do.
(Education Code § 68130)
Current law requires the local governing board of each
community college district to include one or more nonvoting
students within the membership of the board. Among other
things, current law requires that these student members be
residents of California, as defined. Current law entitles
the nonvoting student members of the board to mileage
reimbursement, but specifically prohibits their receipt of
compensation. (Education Code 72023.5)
ANALYSIS
This bill :
1) Authorizes any student , including a person without
lawful immigration status or AB 540 students, to:
a) Serve in any capacity in student government.
b) Receive any grant, scholarship,
fee waiver, or reimbursement for expenses
incurred connected with that service, to the full
extent consistent with federal law.
2) Request that the UC comply with #1.
3) Deletes the requirement that a nonvoting student
member of a local community college governing board be
a resident of California.
STAFF COMMENTS
1) Need for the bill . According to the author, despite
the gains made to attain equity for all students
regardless of their immigration status, many AB 540
students continue to face obstacles when elected to
serve in student leadership positions. Some schools
have questioned whether these students can serve in
student government positions. In addition, while,
California state colleges and universities fund their
student leader positions, many AB 540 students who
serve in these positions are ineligible for these
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funds. This bill will ensure that all students may
serve in student government positions at the public
segments of higher education and be eligible to
receive funds associated with their elected leadership
positions to the full extent of the law.
2) Further clarification . This committee has considered
several bills which have attempted to address issues
of concern for undocumented students exempt from
non-resident tuition at California's public
postsecondary institutions. Whereas similar bills
have focused their provisions on addressing issues
that affect undocumented students attending California
public institutions under the provisions of AB 540,
the provisions of this bill apply to all undocumented
students who may be attending a UC, CSU or CCC.
Additionally, the bill extends the ability to serve as
a student leader and receive related funds to any
student. In essence, the bill establishes that status
as a student, rather than state or country of origin,
entitles any student to serve in a student leadership
position in the student community from which they
derive.
3) Relevant federal law .
a) Federal law (United States Code, Title 8,
§1621) provides that individuals without legal
immigration status are ineligible for any State
or local public benefit with specified exemptions
related to emergency and disaster situations.
States are authorized to provide a benefit for
which the individual would otherwise be
ineligible through the enactment of a state law
which affirmatively provides for such
eligibility.
b) Federal law (United States Code Title 8,
§1623) provides that undocumented individuals are
ineligible to receive a benefit based upon state
residence unless a citizen or national of the
United States would be eligible for the same
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benefits without regard to their residence.
c) Federal law (United States Code Title 8,
§13234) prohibits the employment of an
undocumented individual.
This bill affirmatively assigns a benefit to an
undocumented student, makes that benefit available to
all citizens, regardless of their residence, and
limits the benefit to a grant, scholarship, fee
waiver, or reimbursement for expenses related to
service as a student leader.
4) Legal consequences ? This bill authorizes the receipt
of grants, scholarships, fee waivers or reimbursement
of expenses for undocumented students that serve in
student leadership positions. Although state law
would authorize such action consistent with federal
law, the manner in which these provisions are
implemented by the institutions will be the basis for
determining whether the funds received are an
allowable public benefit or a prohibited form of
compensation. While the legal consequences of the
implementation of the bill's provisions rest with the
public segments, in the past, the Legislature has
attempted to insulate the segments from monetary
damages related to their compliance with state law.
Consistent with similar legislation that attempts to
extend a public benefit to AB 540 students , staff
recommends the bill be amended to:
a) Declare that these provisions are state law
within the meaning of Section 1621(d) of Title 8
of the United States Code.
b) Add the following: If a state court finds
that the provisions of this bill, or any similar
provision adopted by the Regents of the UC, is
unlawful, the court may order, as equitable
relief, that the administering entity that is the
subject of the lawsuit terminate any waiver
awarded under that statute or provision, but no
money damages, tuition refund or waiver, or other
retroactive relief, may be awarded. In any action
in which the court finds that the provisions of
this bill, or any similar provision adopted by
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the Regents of the UC, is unlawful, the CCC, the
CSU, and the UC are immune from the imposition of
any award of money damages, tuition refund or
waiver, or other retroactive relief.
5) Related Court Activity . In 2005, Martinez v. Regents
of the University of California et al. was filed
against the UC, CSU, and the Board of Governors of the
California Community Colleges, challenging the
legality of AB 540. In October 2006 a California
Superior Court ruled in favor of AB 540 stating its
provisions were in accordance with federal law. In
September 2008 a California Court of Appeal overturned
the Superior Court's ruling in Martinez v. Regents and
held that California state law authorizing in-state
tuition to "illegal aliens" is preempted by federal
immigration law and void. The decision was appealed
and in December 2008 the Supreme Court of California
agreed to review the case.
In November 2010, the California Supreme Court
reversed the judgment of the Court of Appeal, finding
that the provisions of AB 540 did not violate the
federal immigration law and concluding that the
plaintiffs' remaining challenges to the provisions of
AB 540 lacked merit. Plaintiffs then filed a petition
for a writ of certiorari with the U.S. Supreme Court
seeking further review. On June 6, 2011, the U.S.
Supreme Court announced that it had declined to review
the California Supreme Court's unanimous decision
upholding the legality of AB 540.
SUPPORT
California Immigrant Policy Center
OPPOSITION
None received on this version.