Did Colorado dual-enrollment students earning high-school credit have to prove lawful U.S. presence for district-paid college tuition?

Plain-English summary

The Attorney General concluded that students in Colorado's Postsecondary Enrollment Options program could receive school-district payment or reimbursement for college tuition without proving lawful presence when the college courses earned high-school credit.

Colorado's lawful-presence law generally required adults to prove lawful U.S. presence before receiving certain public benefits, including postsecondary-education payments. The PSEO benefit at issue was different: participating students took college classes primarily for high-school credit, remained counted in their school district, and received in-state tuition by the program's terms.

The opinion also noted that the lawful-presence statute did not apply to students under eighteen. Its broader conclusion covered PSEO students earning high-school credit through the statutory program.

Currency note

This opinion was issued in 2007. 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 2007

PSEO students and families

Students earning high-school credit through college courses could receive district tuition reimbursement or advance payment without lawful-presence verification. The opinion treated the benefit as K-12 education rather than a postsecondary public benefit.

School districts

The program allowed districts to reimburse tuition after successful completion, pay in advance for students qualifying for free or reduced lunch, and approve additional courses on an individual basis.

Colleges and higher-education officials

The PSEO statute classified participating students as in-state for tuition purposes notwithstanding contrary law. The opinion linked that classification to the program's high-school-credit purpose.

Common questions

Did every college student avoid lawful-presence verification?

No. The conclusion was limited to PSEO students earning high-school credit under the program.

What if the student was under eighteen?

The opinion said the lawful-presence statute excluded anyone under eighteen.

Why was tuition payment not treated as a postsecondary benefit here?

The student took the course primarily for high-school credit and remained in the school district's enrollment count.

Did PSEO students receive in-state tuition?

Yes. The opinion quoted the program statute as mandating in-state classification for participating students.

Background and statutory framework

The PSEO program allowed qualifying eleventh- and twelfth-grade public-school students, up to age twenty-one, to take college courses for high-school or college credit under district agreements with higher-education institutions.

C.R.S. § 24-76.5-103 generally required lawful-presence proof for adult recipients of covered public benefits. The opinion read C.R.S. § 22-35-105 as creating a high-school educational benefit for the students at issue and therefore outside the covered postsecondary category in 8 U.S.C. § 1621(c)(1).

Citations and references

Statutes: § 24-76.5-103, C.R.S. (2007); § 22-35-105(2), C.R.S. (2007); 8 U.S.C. § 1621(c)(1) (2007).

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/08/No.-07-7-Whether-Colorado-Public-High-School-Students-who-Enrolled-at-Institutions-of-Higher-Education-Pursuant-to-the-Postsecondary-Enrollment-Options-Act-are-Subject-to-Verification-of-Lawful...pdf

Original opinion text

STATE OF COLORADO

J ohn W. S uthers
Attorney General

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

DEPARTMENT OF LAW

C ynthia H. C offman
Chief Deputy Attorney General

O ffice of the A ttorney G eneral

D aniel D. D omenico
Solicitor General

FORMAL
OPINION
OF
JOHN W. SUTHERS
Attorney General

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No. 07 - 07
AG Alpha No. HE HE AGBCJ
November 30,2007

David Skaggs, Executive Director of the Colorado Department of Higher Education, requested an opinion from this office concerning the question of whether Colorado public high school students who enrolled at institutions of higher education pursuant to §§ 22-35-105(2), (3)(C) and (4), C.R.S. (2007) of the Postsecondary Enrollment Options Act are subject to verification of lawful presence under House Bill 06S-1023, or whether they are exempt from it under of the provisions of § 22-35-105(3)(IV), C.R.S. (2007).

QUESTION PRESENTED AND CONCLUSION
Question:
Are Colorado public high school students who enrolled at institutions of higher education pursuant to §§ 22-35-105(2), (3)(C) and (4), C.R.S. (2007) of the Post­ secondary Enrollment Options Act (“PSEO”) subject to verification of lawful presence under House Bill 06S-1023, or are they are exempt under of the provisions of § 22-35-105(3)(IV), C.R.S. (2007)? Answer: Students in the PSEO program, and who are earning high school credits from their classes at an institution of higher education, can receive reimbursement from their school district, or payment in advance to the institution of higher education from their school district, for their postsecondary tuition without having to provide proof of lawful presence in the United States.

DISCUSSION

1.

§ 24-76.5-103, C.R.S. (2007)

House Bill 06S-1023, codified as § 24-76.5-103, C.R.S. (2006) (House Bill 1023), establishes that the public policy of the State of Colorado is that all persons 18 years of age or older must first provide proof they are lawfully present in the United States prior to receiving certain “public benefits.” The public benefits that are exempt from this policy are enumerated in subsection (3) of § 24-76.5-103, C.R.S. (2007).1 Postsecondary education is not among those exempt public benefits and therefore students over the age of 18 years must normally provide proof of lawful presence in order to receive payment for or reimbursement of postsecondary tuition or associated expenses. House Bill 1023 specifies that “state or local public benefits” have the same definition as the one contained in 8 U.S.C. § 1621(c)(1) (2007), which specifically includes “any ... postsecondary education ... or any other similar benefit for which payments are provided to an individual, household, or family eligibility unit by any agency of a State or local government or by appropriated funds of a State or local government.” Accordingly, under House Bill 1023, payment for postsecondary education expenses is a public benefit for which students 18 years of age or older must normally provide proof of lawful presence in the United States. 2.

The Postsecondary Enrollment Options Act, § 22-35-101 et seq. C.R.S. (2007)

The PSEO is a program by which qualifying Colorado 11th and 12th grade students attending public high school, up to age 21, may enroll in spring and fall courses at an institution of higher education and receive either high school or college credits, as determined by their school district in a cooperative agreement with the institution of higher education. The students must pay in advance for their tuition for one or two postsecondary classes and are reimbursed by their school district upon successful completion of their credits. The school district may waive the student’s payment or reimbursement of tuition if the student qualifies for free or reduced lunch. Students may take more than two courses for which tuition may be paid or reimbursed, as determined by the school district on an individual basis. All PSEO students, notwithstanding any other law to the contrary, are afforded in-state tuition at a public institution of higher education. Private colleges are included if they are not pervasively sectarian or theological institutions. Tuition at private colleges shall not exceed the average in-state tuition charged by a representative group of comparable state institutions. School districts are not required to provide transportation to students in the PSEO program. Initially, I note that House Bill 1023 excludes from its provisions anyone 18 years of age or younger. Thus, any student participating in the PSEO who is under 18 years of age is exempt from providing proof of lawful presence. Furthermore, under § 22-35-105(2), C.R.S. (2007), students over 19 years of age who are entitled to enroll in courses at an institution of higher

Generally the exempted public benefits are immunizations, treatment of communicable diseases, emergency medical treatment, emergency disaster relief, soup kitchen, crisis counseling and intervention, short-term shelter, prenatal care and those provisions for the protection of life or safety.

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- education do so for the primary purpose of receiving high school credits, not postsecondary credits. In such a situation, the “benefit” received is not one of payment for postsecondary education; it is a benefit for K-12 education credits. Therefore, high school students up to 21 years of age, attending courses at an institution of higher education under subsection (2) of § 2235-105, C.R.S. (2007) are exempt from providing proof of lawful presence under House Bill 1023, because they are merely attaining a high school education, which is not a “public benefit” under 8 USC 1621(c)(1) (2007). Further, students under the provisions of subsection (2) of § 2235-105 are included in the count of pupil enrollment of their school district, not in the enrollment count at institution of higher education. Furthermore, the “state public benefit” at issue is tuition at an in-state rate. § 22-35105(3)(IV), C.R.S. (2007) mandates that all students enrolled in the PSEO will be classified as “in-state” students for the purposes of determining the tuition rate at the institution of higher education, “notwithstanding any law to the contrary”. Thus, students participating in the PSEO Program will be eligible for an in-state tuition rate without having to prove lawful presence pursuant to House Bill 1023.

CONCLUSION
Therefore, I conclude that students in the PSEO program and who are earning high school credits from their classes at an institution of higher education can receive reimbursement from their school district, or payment in advance to the institution of higher education from their school district, for their postsecondary tuition without having to provide proof of lawful presence in the United States. Issued this 30th day of November, 2007.

JOHN W. SUTHERS ^
Colorado Attorney General

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