Colorado Attorney General John Suthers on Tuesday issued an opinion declaring the special tuition rate for undocumented students created this month by Metro State University is illegal.
Suthers said in a news release that he issued the formal opinion in response to “a question posed by the Colorado Community College System.”
“After carefully reviewing the state and federal law in this area, my office has concluded that Colorado’s state-supported higher-education institutions cannot create discounted tuition categories for students who are unable to prove their lawful presence in the United States,” Suthers wrote.
“Although federal law allows state legislatures to pass statutes affirmatively providing tuition benefits to undocumented students, the General Assembly has repeatedly declined to legislate in this area.”
Metro State trustees voted 7-1 on June 7 to create the special category of tuition for undocumented students, saving them money since they previously paid the higher out-of-state tuition rate.
The decision flew in the face of state lawmakers, who this year killed Senate Bill 12-015, known as the ASSET bill, which would have explicitly allowed state colleges to set such separate rates. It was the sixth time the General Assembly has killed similar legislation.
“Just this year, the General Assembly again considered a bill — the ASSET bill — intended by its sponsors to create a new discounted tuition category for undocumented students. Once again, the bill failed,” Suthers wrote. “The decision by Metropolitan State College of Denver to proceed on its own to create a new tuition category, undeterred by the legislature’s repeated rejection of specific authorizing legislation, is simply not supported by governing law.
“The General Assembly may continue to consider this issue,” he continued. “In the meantime, however, state-supported institutions of higher education in Colorado cannot act unilaterally. Under federal law they must await a decision by the legislature. I am disappointed Metro State decided to proceed in this manner without consulting our office.”
It’s unclear what impact Suthers’ opinion might have. At one point in the press release, the opinion is listed as “non-binding.”
In a statement issued Tuesday night, the trustees said, “We reviewed current state statute and deemed this as a legitimate policy within the Trustees’ authority. … It was never our intent to disregard Colorado’s law or its legislature, and we do not believe we have done this.”
Trustee Terrance Carroll, a Democratic former speaker of the Colorado House, was blunter in a Tweet. “The AG crafted a legal opinion on Metro State tuition rate to support his ideological & political beliefs not the law.” Suthers is a Republican. The Democratic-controlled Senate passed the ASSET bill but it died in a committee of the Republican-majority House.
State Sen. Pat Steadman, D-Denver, testified in support of the plan to the Metro trustees and said enacting it is “squarely within the authority the legislature has given you.” Steadman is a member of JBC, which is split 3-3 between Democrats and Republicans, and is expected to be an active participant in Wednesday’s meeting.
The new tuition rate is $3,578.50 for 15 credit hours, a full class load for one semester. The comparable tuition for out-of-state students will be $7,992.60 next year, and the resident cost will be $3,082.
Metro leaders believe they structured the rate for undocumented students to avoid any taxpayer subsidy of such students and is intended to reflect the full cost of education, something that’s partially subsidized for resident students. Undocumented students also won’t be eligible for state or institutional financial aid.
To be eligible for the new rate, a student must have attended a Colorado high school for at least three years, graduated from a Colorado high school or received a general equivalency diploma in this state and provide a statement that they are in good legal standing, other than their undocumented or unclassified status, and are seeking or intend to seek lawful status when eligible.
Voting for the new policy, called the Colorado High School/GED Tuition Rate, were trustees Carroll, Robert Cohen, Melody Harris, Bill Hanzlik, Walter Isenberg, Michelle Lucero and Walter Isenberg. Trustee Jack Pogge voted no, saying, “I don’t think it’s our position to do this.” Dawn Bookhardt was absent.