BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 844
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 844 (Lara)
          As Amended  June 29, 2011
          Majority vote
           
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          |ASSEMBLY:  |49-25|(May 12, 2011)  |SENATE: |22-12|(August 22,    |
          |           |     |                |        |     |2011)          |
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           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 








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          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.








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           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 








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          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                
           

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