Undocumented students may lose in-state break

The joint Education Interim Committee voted Wednesday to support repealing a law that allows some undocumented students to pay in-state tuition at Utah colleges and universities.

The 17-3 party line vote, favored by Republicans, came after two hours of debate, during which the legality of Utah's 2002 law was called into question by the lead attorney in a federal court challenge against a similar law in Kansas. University of Utah students also told lawmakers they are considering suing for a refund of out-of-state tuition they've paid.

The committee's approval allows the bill, sponsored by Rep. Glenn Donnelson, R-North Ogden, to skip a public hearing and go directly to floor debate in the House and Senate in the 2006 legislative session.

At issue is whether allowing in-state tuition for undocumented students violates a federal statute that prevents illegal immigrants from receiving higher education benefits not available to U.S. citizens, regardless of residency.

In the 2003-04 school year — the year the law took effect — 117 students took advantage of it for a total tuition reduction of $299,905, according to state System of Higher Education figures.

That same year, 10,424 nonresident students paid some $34 million more in tuition and fees than they would have paid had in-state tuition been available to them.

Utah Assistant Attorney General Bill Evans argued that the tuition law complies with federal law because it "is simply not based on residence."

He added that the U. students would have a hard time arguing a just cause to sue; the law doesn't impact them.

"Even if they win the case, it doesn't give them any benefit," he said of the students, who would still be considered out-of-state even if the tuition law is repealed.

Under the measure, a law that allows undocumented students who attend a Utah high school for three years and graduate from a Utah high school to pay in-state tuition if they file an affidavit that they intend to adjust their immigrant status. The bill took effect in the 2003-04 school year.

Evans, who evaluated the law before it took effect, said it applies equally to citizens and undocumented students based on where they went to high school, not their legal state of residence.

However, Kris Kobach, constitutional law professor at the University of Missouri, Kansas City, told lawmakers that granting in-state tuition to undocumented students violates federal law and the U.S. Constitution, and it could expose Utah to litigation.

"This gamble is one that could cost taxpayers dearly," he said.