Friday, March 11, 2005

Bebee Goes Public: HB 1525 Breaks Fed. Law

By Debbie Pelley (click "comments" below for article and the AG's opinion)


Blogger Mark Moore (Moderator) said...

Attorney General Rules on HB1525 - Granting Illegals Instate Tuition and Scholarships

Attorney General Mike Beebee ruled today, March 10, on state Senator Jim Holt's request for his opinion on HB1525. His ruling was that HB1525. "may violate 8 U.S.C. sec. 1623 if the courts read the high school attendance and graduation requirements as being tantamount to residence. The bill may also give rise to an equal protection challenge," and "may be subject to challenge under federal law." Senate Education Committee members had stated at the hearing there were no residence requirements in the law, and that this law gave nothing to illegal aliens that it didn't give US citizens. Beebee disagrees with both those statements as did the opponents of the bill. See his full opinion below.

Law 8 U.S.C. sec. 1623 that Beebee quotes is the law that Senator Jim Holt tried to get legislators to look at several days ago. It is the one that Attorney Joey McCutchen presented to the Senator Education Committee on March 2nd which greatly inflamed some members of the committee who became very angry with McCutchen. It is also the one that I, myself, sent out to legislators and to the media on February 25 as reported in the newspaper. The full report below is better than the summary.

Senator Jim Holt said he wonders if Governor Huckabee, proponents of HB1525, and the journalists will now accuse these US Congressional members of "inflammatory... race-baiting and demagoguery" and call them bigots and racists and all the harsh descriptive words they used against Holt for filing his illegal alien bill.

Remember Huckabee questioned Senator Holt's Christianity by saying, Holt often talks of his strong Christian beliefs, but Huckabee singled him out, saying, "I drink a different kind of Jesus juice. My faith says don’t make false accusations against somebody. In the Bible, it’s called ‘Don’t bear false witness.’

Holt still contends that his bill and HB1525 is one of priority, not bias or prejudice. Our laws have always been designed to protect and provide for our US citizens first. For hundreds of years no one saw this as racism, bias, or prejudice.

The question now is will Huckbee and Joyce Elliott still try to pass their bill and be like the Governor in Little Rock 1957, disobeying federal law. This 1957 racial episode is the event Huckabee referred to when he praised the House for passing HB1525, saying this bill was a contrast to that shameful event.

Debbie Pelley

Opinion number: 2005-054

Requestor: Holt, Jim State Senator
Release date: 03/10/2005

Full Opinion: HTML or MS Word

Does House Bill 1525, which would make certain students without documented immigration status eligible for in-state college tuition and state supported scholarships, violate any applicable federal law? RESPONSE: Although we do not have the benefit of a judicial interpretation, in my opinion, HB 1525, as written, may violate 8 U.S.C. sec. 1623 if the courts read the high school attendance and graduation requirements as being tantamount to residence. The bill may also give rise to an equal protection challenge. See opinion for full analyses

Opinion No. 2005-054

March 10, 2005

The Honorable Jim Holt

State Senator

2835 South 56th Street

Springdale, AR 72762-0844

Dear Senator Holt:

I am writing in response to your request for an expedited opinion on the following question:

Does House Bill 1525 violate any applicable federal law?

As you note this bill, which is currently pending in the legislative session, would make eligible for in-state colleges tuition and state-supported scholarships those students without documented immigration status who have attended Arkansas high schools for at least three years and been admitted to college. For the sake of clarity, I will set out the full text of the bill’s substantive provisions. Section 1 states:

(a) This act shall be known as the “Access to Postsecondary Education Act of 2005”.

(b) A student without documented immigration status shall be exempt from paying the nonresident portion of total tuition for attendance at a state-supported institution of higher education, if the student:

(1) Attended high school in Arkansas for no fewer than three (3) school years;

(2) Graduated from a high school in Arkansas or received a General Education Development diploma in the state; and

(3) Is or has been admitted at an institution of higher education.

(c) A student meeting the requirements of subsection (b) of this section who graduated from high school after December 1, 2004, shall be eligible for state-supported scholarships if the student meets all other eligibility requirements of the scholarship program that are not related to residency or immigration status.

(d) In addition to the requirements under subdivision (b) of this section, a student without documented status shall file an affidavit with the state-supported institution of higher education stating that the student has an intent to legalize his or her immigration status.

(e) The Arkansas Higher Education Coordinating Board shall promulgate the rules necessary for implementation of this act.


Although we do not have the benefit of judicial interpretation, it is my opinion that House Bill 1525 may violate 8 U.S.C. § 1623 if the courts read the high school attendance and graduation requirements as tantamount to residence.[1] Additionally, I believe the bill may give rise to an Equal Protection challenge if it is enacted into law.

With regard, first, to 8 U.S.C. § 1623, this federal statute was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. It provides as follows:

Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.

According to a plain reading of this statute, the State cannot offer illegal aliens any postsecondary education benefit “on the basis of residence within [the] State” unless a non-resident citizen is eligible for the benefit.[2] Because the benefits under HB 1525 do not appear to extend to non-resident citizens, it would seem that exempting illegal aliens from the “nonresident portion of total tuition” will be contrary to 8 U.S.C. § 1623 unless this benefit is not extended to aliens “on the basis of residence within [the] State.” The same analysis applies with respect to “state-supported scholarships,” assuming that by this term HB 1525 means scholarships that are otherwise only available to Arkansas residents.

Turning to HB 1525, eligibility for these benefits is based upon three years of high school attendance and high school graduation in the State (or receipt of a GED). While this does not expressly establish eligibility “based on residence within [the] State,” I believe a court faced with the question could conclude that this is a de facto residence requirement, particularly when it is recognized that state residency is a general prerequisite to high school attendance in Arkansas. Arkansas Constitution Article 14, Section 1 provides in part that "the State shall ever maintain a general, suitable and efficient system of free public schools.…” The legislature has interpreted this mandate to mean that the free public schools must generally be available in appropriately sized districts to serve resident students. See A.C.A. § 6-18-202.[3]

An Equal Protection question also arises under HB 1525 as currently drafted. The bill appears to make an undocumented high school graduate eligible for the exemption from the “nonresident portion of total tuition” regardless of whether he or she is currently an Arkansas resident. On the other hand, however, another student who is not currently an Arkansas resident but who otherwise meets the requirements of HB 1525 (attended high school for at least three years and graduated or received a GED in the State), except that he or she is not an undocumented alien, would apparently not be eligible for the exemption. State laws that make distinctions based on alienage must meet the requirements of the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution. Graham v. Richardson, 403 U.S. 353 (1971). Such laws are evaluated under “heightened” review, and can only survive challenge if they serve important governmental objectives and are substantially related to those objectives. Plyler, supra; Craig v. Boren, 492 U.S. 190 (1976). Few statutes have ever been found to satisfy this standard. Thus, I believe HB 1525 would likely fail to meet this test.

It is my opinion for the foregoing reasons that HB 1525 may be subject to challenge under federal law.

Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.



Attorney General

9:14 PM, March 11, 2005  
Blogger Mark Moore (Moderator) said...

I have to give Mike Bebee some credit- he made the correct ruling. I give Jim Holt credit for forcing the issue.

9:16 PM, March 11, 2005  
Blogger said...

What is happening in Little Rock? How in the world can a bill be proposed that even recognizes illegal aliens as equals? Residing within the sovereign borders of the United States, as an illegal should raise red flags and warrant a call to the INS first, not a call to Little Rock wanting a discount on a college education.

My hat goes of to Mr. Holt for bringing this before the AG. How many legislators does it take to see that a Federal Law is being broken, violated or even toyed with?

4:06 AM, March 14, 2005  
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