The Return of the ASSET Bill in Colorado (Advancing Students for a Stronger Economy Tomorrow)

Colorado State Senators Angela Giron and Michael Johnston re-introduced the Advancing Students for a Stronger Economy Tomorrow (ASSET) bill to the Colorado senate on January 11, 2012.  The ASSET bill proposes a “standard-rate” tuition for qualifying students who received an education from Colorado public schools and have “requested documentation of, [have] applied for, or will file an application for lawful status as soon as he or she is eligible to do so.”  Colo. Senate Bill 12-015.

The ASSET bill, originally introduced during the 2011 session, outlines a third possible tuition rate for students applying to Colorado funded higher education institutions.  Currently, a student either qualifies for in-state or out-of-state tuition rates depending on domicile.  However, per section 505 of the Illegal Immigration Reform and Immigrant Reform Act of 1996 (IIRIRA), an undocumented alien “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 amount, duration, and scope) without regard to whether the citizen or national is such a resident.”  The ASSET bill states that students who are eligible for the proposed standard-rate tuition “shall not be counted as a resident, and the tuition classification shall not be deemed to establish residency or domicile for any purpose.”  If passed, Colorado would become one of fourteen states who have passed similar tuition bills for undocumented students.

The “standard-rate” tuition, according to SB 12-015, equals the student’s share of the post-secondary institution’s in-state tuition amount plus “the college opportunity fund stipend” usually awarded to in-state students.  A qualifying student would, therefore, pay a higher rate than in-state tuition, but a lower rate than out-of-state tuition.  Standard-rate students would also remain unqualified for state or federally funded, need-based financial aid.

Similar laws in other states have recently been challenged alleging violations of section 505 of IIRIRA and the Equal Protection Clause.  California passed a bill that mirrors the Colorado ASSET bill in 2001, which provided an “exemption” to undocumented students to qualify for in-state tuition.  In 2010, the California Supreme Court held that because “residency” was not a requirement to qualify for the in-state tuition exemption, the exemption did not violate IIRIRA.  In Kansas, out-of-state students claimed that offering lower-rate tuition to undocumented students not only violated IIRIRA, but also the Equal Protection Clause.  The Kansas court ultimately dismissed both claims, plus five other claims in the suit, for lack of standing and held the students did not have a private right of action to claim a violation under IIRIRA.