BILL ANALYSIS Ó AB 844 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 844 (Lara) As Amended June 29, 2011 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |49-25|(May 12, 2011) |SENATE: |22-12|(August 22, | | | | | | |2011) | ----------------------------------------------------------------- Original Committee Reference: HIGHER ED. SUMMARY : Allows a student who is without lawful immigration status or exempt from paying nonresident tuition under specified provisions of law Ýauthorized by AB 540 (Firebaugh), Chapter 814, Statutes of 2001] to serve in student government at the California State University (CSU) or the California Community Colleges (CCC). Specifically, 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; and, 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)Requests that the University of California (UC) comply with the above provisions. 3)Deletes the requirement that a nonvoting student member of a local CCC governing board be a resident of California. 4)Provides that, should a state court find these provisions unlawful, no money damages, tuition refund or waiver, or other retroactive relief may be awarded. 5)Finds and declares that these provisions are a state law within the meaning of subsection (d) of Section 1621 of the United States Code. The Senate amendments insulate UC, CSU, and CCC from monetary damages resulting from their compliance with these provisions, delete the requirement that a nonvoting student member of a AB 844 Page 2 local CCC governing board be a resident of California, and declare these provisions to be a state law, as defined. EXISTING LAW : 1)Exempts specified California nonresidents from paying nonresident tuition at UC, CSU, and CCC, also known as the AB 540 nonresident tuition waiver, if they meet all of the following (Education Code (EC) Section 68130.5): a) Attended a California high school for three or more years; b) Graduated from a California high school or attained an equivalent degree; c) Registered or attended an accredited California higher education institution beginning after fall of the 2001-02 academic year; and, d) If an alien without lawful immigration status, have filed an affidavit stating that the student has filed an application to legalize his or her immigration status or will file such an application as soon as he or she is eligible to so do. 2)Authorizes the establishment of a CSU student body organization and associated fees. (EC Section 89300 et sec) 3)Authorizes the establishment of CCC student body organizations and associated fees. (EC Section 76060 et sec) 4)Requires the local governing board of each CCC district to include one or more nonvoting students within the membership of the board, requiring, among other things, that these student members be residents of California, as defined, and entitling the nonvoting student members of the board to mileage reimbursement but specifically prohibiting their receipt of compensation. (EC Section 72023.5) AS PASSED BY THE ASSEMBLY , this bill was substantially similar to the version that was approved by the Assembly. FISCAL EFFECT : According to the Senate Appropriations Committee, likely minor and ongoing costs. AB 844 Page 3 COMMENTS : In November 2010, the Fresno State University ASI President, Pedro Ramirez, publicly identified himself as an undocumented student. According to Fresno State President John Welty, shortly after his election, Mr. Ramirez personally notified President Welty and ASI advisers about his immigration status and volunteered to serve without pay as president, since under federal law he cannot be employed in the United States. According to the author, while federal law prohibits employment of an undocumented student, there is much more latitude in allowing an undocumented student to be compensated if the stipend is going to be given as a grant or scholarship from the campus. Relevant federal law. While federal law prohibits employment of undocumented persons, it does allow states to provide public benefits to persons without legal status, provided the state passes a law "affirmatively providÝing] for such eligibility" as follows: 1)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. (United States Code, Title 8, Section 1621) 2)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 benefits without regard to their residence. (United States Code Title 8, Section 1623) 3)Employment of an undocumented individual is prohibited. (United States Code Title 8, Section 13234) Although state law would authorize such action consistent with federal law, the manner in which these provisions are implemented by UC, CSU, and CCC will be the basis for determining whether the funds received are an allowable public benefit or a prohibited form of compensation. Since the legal consequences of the implementation of the bill's provisions rest with the public segments, this bill includes language to AB 844 Page 4 insulate the segments from monetary damages related to their compliance with state law. Related Court Activity. In 2005, Martinez v. Regents of the University of California et al. 50 Cal.4th 1277 (2010) was filed against UC, CSU, and the CCC Board of Governors, 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 California Supreme Court 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. Analysis Prepared by : Sandra Fried / HIGHER ED. / (916) 319-3960 FN: 0001839