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give them any benefit," he said of the students, who would still be considered out-of-state even if the tuition law is repealed.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.

Evans said no matter the outcome of the pending Kansas suit, it will likely be appealed to the federal 10th Circuit Court, which also oversees Utah.

He called Kobach's argument for repealing the law "a far-fetched and long-range projection. It's good advocacy, but it's questionable."

Evans did acknowledge, however, that "certainly, there is a risk."

Rep. David Ure, R-Kamas, sponsored the tuition break in 2002 in anticipation of Sen. Orrin Hatch's proposed DREAM Act, which would give states clear authority to provide in-state tuition to undocumented students. The federal law never passed, but Hatch, R-Utah, has hinted it will be back this year, either as an independent measure or as part of a comprehensive immigration reform package.

Hatch said in a statement Wednesday that states should be able to decide how to deal with a growing number of undocumented children, and the DREAM Act would give states more leeway.

"Frankly, Utah's law has been a compelling argument to help garner support for the bill in Congress, and today's vote may slow some of that momentum," Hatch said.

Defending his law, Ure told the committed Wednesday, "I didn't know it was so evil to educate people. . . . This is as much a moral issue as a legal issue. To me it appears we are saying these people are virtually animals."

Ure played a key role on the Rules Committee in delaying action on a repeal bill filed by Donnelson during the past general session. The bill and a substitute were finally referred to interim study. The substitute, also discussed Wednesday, would have put in-state tuition for undocumented students on hold until the federal government acts to expressly permit it.

Rep. Stephen Urquhart, R-St. George, said of Evans' opinion, "At best you can characterize this as fluff," adding the tuition law "puts us at serious financial risk."

Ure posed the question of state sovereignty, but the majority of committee members agreed with Sen. Chris Buttars, R-West Jordan, who said it "is an absolute clear line, this is a federal issue."

After the vote, Sen. Karen Hale, D-Salt Lake, said she finds it ironic that the same committee that voted to challenge the federal No Child Left Behind law would refuse to take a stand on another aspect of immigration.


E-mail: dbulkeley@desnews.com