BILL ANALYSIS �
AB 844
Page 1
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 �authorized 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 provid�ing] 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
FN: 0001839