Could the Colorado Commission on Higher Education grant in-state tuition to undocumented students by policy or regulation?

Plain-English summary

The Attorney General concluded in 2006 that the Colorado Commission on Higher Education lacked statutory authority to grant in-state tuition status to undocumented students by policy or regulation.

Federal law required a state wishing to extend that benefit to affirmatively authorize it through a post-1996 state law and to use residency-neutral eligibility criteria. Colorado's Tuition Classification Act instead linked in-state status to domicile in Colorado and assigned classification decisions to each institution's registering authority.

CCHE's role was limited to creating uniform forms that helped institutions make those decisions. An earlier power to create exceptions had been repealed in 1996. The opinion therefore concluded that changing the eligibility criteria required an amendment enacted by the General Assembly.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

How the opinion applied in 2006

Undocumented students

The opinion did not recognize a route to in-state status through a CCHE policy. It described the existing state statute as residency-based and the federal framework as requiring affirmative state legislation for eligibility.

College registrars

Each institution's registering authority applied the statutory tuition rules and made individual in-state classifications. CCHE supplied uniform forms but could not rewrite the criteria.

State higher-education officials and legislators

The College Opportunity Fund Act did not enlarge CCHE's power because it used the same underlying in-state classification. The opinion assigned any policy change to the General Assembly.

Common questions

Could CCHE create an in-state tuition exception by regulation?

No. The AG found no delegated authority to change the classification criteria.

Who made individual tuition classifications?

The registering authority at the institution where the student enrolled.

What authority did CCHE have?

The opinion identified authority to issue uniform forms assisting institutions with their determinations.

Could Colorado law be changed to create eligibility?

The opinion said that required the General Assembly to amend the Tuition Classification Act.

Background and statutory framework

The opinion discussed 8 U.S.C. §§ 1611, 1621, and 1623 as the federal limits then governing state and local public benefits and residence-based postsecondary benefits. It described several unsuccessful Colorado bills modeled on laws in other states.

Colorado's Tuition Classification Act defined an in-state student through one year of Colorado domicile. The statute assigned application of those rules to institutional registering authorities and limited CCHE to uniform forms.

Citations and references

Statutes: 8 U.S.C. § 1611; 8 U.S.C. § 1621; 8 U.S.C. § 1623; § 23-7-102(5), C.R.S. (2005); § 23-7-103(1), C.R.S. (2005).

Case: Equal Access Education v. Merten, 305 F.Supp. 2d 585, 606 (E.D.Va. 2004).

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/08/No.-06-1-Authority-of-Colorado-Commission-on-Higher-Education-to-Grant-In-State-Tuition-Status-to-Undocumented-Aliens.pdf

Original opinion text

Attorney General

STATE OF COLORADO

C ynthia H. C offman
Chief Deputy Attorney General

O ffice of the Attorney G eneral

Jo h n W . Su t h e r s

State Services Building
1525 Sherman Street - 5th Floor
Denver, Colorado 80203
Phone (303) 866-4500

DEPARTMENT OF LAW

A llison H. E id
Solicitor General

FORMAL
OPINION

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No. 06-01

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Of

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AG Alpha No. HE HE AG BBT

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JOHN W. SUTHERS
Attorney General

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January 23,2006

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This opinion, requested by Executive Director Rick O’Donnell, concerns the authority o f the Colorado Commission on Higher Education (“CCHE”) to grant in-state tuition status to undocumented aliens.1

QUESTION PRESENTED AND CONCLUSION
Q u estio n : Whether CCHE has the statutory authority to, by policy or regulation, grant in-state tuition status to undocumented aliens. A n sw er: No. CCHE lacks statutory authority to establish a policy or regulation granting in-state tuition status to undocumented aliens.

BACKGROUND
Under two federal provisions enacted in 1996, undocumented aliens are generally not entitled to in-state residency for tuition purposes. Under the first, the Personal Responsibility and Work Opportunity Reconciliation Act o f 1996, undocumented aliens are ineligible to receive “state or local public benefits” unless, through enactment o f a state law after August 22, 1996, the state “affirmatively provides” for such eligibility. 8 U.S.C. § 1611, 1621. The second, the Illegal Immigration Reform and Immigrant Responsibility Act o f 1996, states that aliens not lawfully present in the United States are not eligible on the basis o f residence within a state for any state postsecondary education benefit unless any citizen o f the United States would be eligible for such benefit regardless o f residency. 8 U.S.C. § 1623. The effect o f this provision is 1 For purposes of this memorandum, the term “undocumented alien’"means an alien who is not lawfully present in the United States. See generally 8 U.S.C. § 1623; E qu al A ccess E du cation v. M erten, 305 F.Supp. 2d 585, 592 (E.D.Va. 2004) (referring to “aliens with undocumented status”).

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to render undocumented aliens ineligible for in-state tuition status so long as such status is conferred based on residency in the state. S ee E q u a l A c c e ss E du cation v. M erten, 305 F.Supp. 2d 585, 606 (E.D.Va. 2004) (noting that the IIRIRA provides that a public postsecondary educational institution may not grant in-state tuition benefits to undocumented aliens unless such an institution also grants in-state tuition to out-of-state United States citizens). Taken together, these federal provisions require that, in order for states to grant in-state tuition status to undocumented aliens, they must first affirmatively provide for such eligibility, and do so on a residency-neutral basis. As currently worded, Colorado’s Tuition Classification Act links tuition levels to residency in the state. § 23-7-102(5), C.R.S. (2005) (“‘In-state student’ means a student who has been domiciled in Colorado for one year or more immediately preceding registration at any institution o f higher education in C olorado....”). Subsequent to the passage o f these two federal laws, several legislative attempts have been made to amend Colorado’s Tuition Classification Act to eliminate this residency requirement, and thus to render resident Colorado students eligible for the lower in-state tuition rate regardless o f immigration status. These bills, based on similar legislation adopted by states such as Texas, California, Utah, Washington, Oklahoma, Illinois and Kansas, have attempted to address this issue by allowing public colleges and universities to grant in-state tuition to undocumented alien students who have graduated from a state high school and who meet certain residency-neutral, uniformly applied criteria. However, attempts to amend the Tuition Classification Act have proved unavailing. Recently, questions have been raised regarding whether CCHE possesses authority under existing law to alter the state rules for tuition classification to allow undocumented aliens to qualify for in-state tuition without running afoul o f federal law. Thus, in this opinion, CCHE has asked whether, under its current statutory authority, CCHE can, by policy or regulation, effect a change in residency classification methods that would result in undocumented aliens being eligible for in-state tuition classification under current federal law.

DISCUSSION
In reviewing this question, we first turn to the scope o f CCHE’s authority over tuition classification as delegated to it by state law. The Tuition Classification Act, §§ 23-7-101 to 107, C.R.S. (2005), sets forth the uniform rules to be applied in determining whether students are classified as in-state students or out-of-state students for tuition classification purposes. Like most states, Colorado’s current system o f tuition classification links tuition levels to residency.
§ 23-7-102(5), C.R.S. (2005). Students who are not residents o f Colorado typically pay tuition at higher levels than students who have established residency within Colorado. Residency determinations have traditionally been considered a matter o f state law, and have generally been guided by reference to two concepts: physical presence within the state for a certain period o f time, and intent to remain in the state indefinitely. § 23-7-103(2), C.R.S. (2005). CCHE’s authority under the Tuition Classification Act is extremely limited. Rather, it is left to the registering authority o f the institution where the student is registering to apply the statutory rules for determination o f in-state status and to make the in-state tuition determination.
§ 23-7-103(1), C.R.S. (2005). CCHE’s authority is limited to the promulgation o f uniform forms

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for the purpose o f aiding registering authorities in making the determination. § 23-7-103(2)(k), C.R.S. (2005). CCHE did, at one time, have statutory authority to make reasonable and appropriate exceptions to tuition classification rules upon request o f the institution. However, the section granting that authority to CCHE was repealed in 1996. S ee C olo. S ession L a w s 1996, Vol. 2, p. 1386. Nor does the College Opportunity Fund Act enlarge CCHE’s authority in this regard. The College Opportunity Fund Act defines “eligible student” to mean “a student who is enrolled at a state institution o f higher education and who is classified as an in-state student for tuition purposes....” Thus, the Act makes eligibility dependent upon the same determination o f the registering authorities outlined in § 23-7-101 e t se q , C.R.S. (2005).

CONCLUSION
In sum, federal law requires that, in order for states to grant in-state tuition status to undocumented aliens, they must first affirmatively provide for such eligibility, and do so on a residency-neutral basis. Currently, state law provides in-state tuition status based on residency. Several bills have been introduced in the General Assembly that would eliminate residency classification and determine in-state tuition status based on residency-neutral criteria, but none has passed. The question posed by CCHE is whether it has the authority to make such a change, by policy or regulation. As set forth above, CCHE’s authority under the Tuition Classification Act is quite limited, and does not encompass authority to change the criteria by which in-state tuition status is granted. For this reason, I conclude that CCHE lacks statutory authority to establish a policy or regulation granting in-state tuition status to undocumented aliens. Rather, such a determination would require an amendment to the Tuition Classification Act by the General Assembly. Issued this 23vA- day o f January, 2006.

JOIWW. SUxxxx^xvo
Cofo/ado Attorney General