Marylands Policy for In-State Tuition for Undocumented Students: Rewarding Illegal Conduct or Promoting Productive Assimilation?

By Michael Benefiel, Spring 2012 Semester, Montgomery College, LA 212 Immigration Law

Summary: Maryland voters and their elected representatives hold strongly conflicting views about how children who came without proper entry into the U.S. should be treated once they graduate from our states high schools. For some voters, these students symbolize a breakdown of respect for law and proper enforcement of the rules. For other voters, these students symbolize the opportunities the U.S. has historically offered those who are willing to earn their assimilation into American society. The legislative and legal history of the Maryland Dream Act is a case study of the conflicting frameworks brought to the issue. As of this date, it appears likely that Maryland voters will have an opportunity to cast a vote on this legislation. My prediction is that the outcome of the vote, whichever way the majority votes, will not resolve the issue. End summary.

During the 2011 Maryland Legislative Session, Senate Bill (SB) 167 received majority votes in both the Senate and the House of Delegates. On May 10, 2011, Governor Martin OMalley signed the legislation and, under its own terms, it was scheduled to become statute law effective July 1, 2011. 1 Instead, opponents of the law organized a well-funded and technologically sophisticated online drive for voters signatures to force this law onto the ballot as a referendum. Complex litigation initiated by Casa de Maryland and named plaintiffs on August 1, 2011, challenged methodology, the process, the signatures collected and also the suitability of SB 167 for referendum as matters of law. The Plaintiffs argued that SB 167, as an appropriations measure was not suitable for referendum as a matter of law. Furthermore, after painstaking review of signatures, the Plaintiffs denied that sufficient valid signatures had in fact been collected. Civil case 02-C-11-163050 sought injunctive relief from the court to prevent the Board of Elections from acting to put SB 167 onto the ballot. The Circuit Court of Anne Arundel County, as of February 27, 2012, denied Plaintiffs the relief they sought and ordered the Maryland State Board of Elections to put SB 167 on the ballot for our general election on Tuesday, November 6, 2012. Proponents of SB 167, which they call the Maryland Dream Act, have announced their intention to appeal the latest adverse decision of the Circuit Court to the Court of Special Appeals. In view of the substantial preparatory work required to design a ballot, review the content of the ballot, and print and distribute millions of ballots in time for November 6th General Election, Maryland State
1 Proponents of this legislation used the popular name Maryland DREAM Act in part to associate this initiative with the December 2010 bill passed by the post-election session of the U.S. House of Representatives, The Development, Relief and Education for Alien Minors Act. Though I will refer to SB 167 here, it was to become Maryland statute law as Chapter 191, An Act concerning Public Institutions of Higher Education Tuition Rates Exemptions, on July 1, 2011, until the State Board of Elections determined that voters signatures were sufficient to make the matter one for referendum in accordance with the Maryland Constitution, as amended in 1915 to include the referendum itself.

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authorities are hoping the Maryland Judiciary will expedite the appeals process in this case. Because of the entrenched positions of the disputing parties, I predict that a decision by the COSA would immediately be appealed to the Court of Appeals, and expedited hearing would be requested there as well. Opponents of SB 167 include prominent conservative advocacy organizations including Judicial Watch and the Immigration Reform Law Institute. Judicial Watch, which describes itself as the public interest group that investigates and prosecutes government corruption, intervened in the civil action in Annapolis and has harshly criticized the legal strategy of Casa de Maryland and named plaintiffs. Longtime (first elected in 1978) Maryland Assembly Delegate Neil Parrott (R-Washington), also serves as the honorary chairman of an organization, MDPetitions.com. This organization operated the website for voters to obtain petition documents for signature and self-certification as soon as SB 167 was enacted. 2 Delegate Parrott stated: The idea of illegal aliens suing Maryland citizens to prevent them from voting illustrates how much they disrespect citizenship. 3 SB 167 defined individual as used in Marylands education law to include an undocumented immigrant individual, and to exclude a nonimmigrant alien within the meaning of 8 U.S.C. 1101(a)(15). 4 Such an individual is exempt from paying the out-of-state tuition rate at a community college, and later at other public institutions of higher education, if this individual fulfills several other requirements. Such requirements include an affidavit from the student promising to apply for permanent residence status within 30 days after becoming eligible to do so. 5 Eligibility for the benefits of in-state tuition for such undocumented immigrants also requires documentation that the student or the students parents have filed Maryland state income tax returns for three years. Male unauthorized immigrants must document they have registered with the Selective Service System, if between the ages of 18-26. SB 167 also establishes time limits for public or nonpublic high school graduates to begin their community college enrollment and, later, transfer to a four-year public institution. In contrast, while not required to fulfill the affidavit and document requirements, a nonimmigrant alien, for example attending the

A visit to MDPetitions.org on March 21, 2012, showed that it is now a website designed to collect signatures to bring SB 116, the Religious Freedom and Civil Marriage Protection Act, to a referendum on the November ballot as well. https://mdpetitions.com/ 3 Judicial Watch press release of January 05, 2012, at http://www.judicialwatch.org/pressroom/press-releases/judicial-watch-mdpetition-com-asks-court-to-dismiss-lawsuit-seeking-todeny-voters-opportunity-to-vote-on-maryland-dream-act-in-2012/ downloaded March 21, 2012. 4 This is the lengthy section of U.S. Immigration Law which sets out definitions and lists the categories of nonimmigrant visas. The Cornell Legal Information Institute provides a link at http://www.law.cornell.edu/uscode/text/8/1101. A nonimmigrant student would most likely hold an F visa, obtained overseas after submitting documentation and an I-20 petition to a consular official of the U.S. Department of State at an Embassy or Consulate. 5 Since, as we have learned by reading Immigration Law and Procedure by David Weissbrodt and Laura Danielson (Thomson-West, 2005) under current law, there is no real opportunity for an unauthorized immigrant to adjust this status while remaining in the U.S., unless the beneficiary of a private members bill or other extraordinary circumstance, the promise and the affidavit have been criticized as empty window-dressing by opponents of SB 167 and similar legislation in other jurisdictions.
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University of Maryland in College Park in authorized status as a student visa holder, would continue to pay substantially higher out-of-state tuition rates. 6 The decision of Marylands elected legislators to create educational opportunities in Marylands institutions of higher learning for unauthorized immigrants proved controversial, indeed, polarizing. Registered Maryland voters have rights to petition laws to referendum under our state constitution. 7 To bring a legislative action to referendum, valid signatures matching voter registration records of 55,736 Maryland voters must be presented to the Board of Elections by June 30, 2011. Voter signature collection efforts, led by Maryland Delegate Neil Parrott (R-Washington), who represents the Hagerstown district in the House of Delegates, were successful. Using computer-based technology and a website named MDPetitions.com, Delegate Parrott and other opponents of SB 167 mounted a campaign supported in part by the Immigration Reform Law Institute (Washington, D.C.) and Judicial Watch (Washington, D.C.) and succeeded within the time limits required. The Maryland State Board of Elections, working with counties throughout the state, verified 108,923 accepted signatures on July 22, 2011, and ordered SB 167 placed as a voter referendum on the November 2012 ballot. 8 This decision suspended the effective date of SB 167, originally scheduled for July 1, 2011, to a future date when voters approve this legislation in the referendum now scheduled for November 6, 2012. Proponents of SB 167 filed in the Circuit Court for Anne Arundel County, Maryland, a Complaint for Declaratory and Injunctive Relief, on August 1, 2011. This civil action provides useful background on legal points at issue in the referendum process in Maryland. More broadly, the plaintiffs cause for action and standing give useful insight into why they assert that SB 167 might serve both the interests of unauthorized immigrants who are seeking an earned path to citizenship and also the interests of Maryland taxpayers who may wish to support such aspiring students in their efforts to study, earn higher incomes, and provide productive contributions to Marylands economy in the future. Opponents of SB 167, who include the Immigration Reform Law Institute and Judicial Watch, have intervened in the Circuit Court for Anne Arundel County, making forceful and, as of Feb. 27, 2012, persuasive arguments in favor of ordering SB 167 to be placed as a referendum on the November ballot. The case presented by the opponents of SB 167 asserts that Maryland taxpayers are asked to sacrifice for people who are in violation of U.S. law, and who may even take places at public higher education

In the Fall of 2011, UMD College Park tuition rates were $8,655 for full-time in-state students, $25,795 for full-time, out-of-state students. The dollar benefit as a result of SB 167 for a particular unauthorized immigrant student was $17,140. 7 The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved by the Governor, or, if passed by the General Assembly over the veto of the Governor. Article XVI, Section 1, Constitution of Maryland. http://www.iandrinstitute.org/New%20IRI%20Website%20Info/I&R%20Research%20and%20 History/I&R%20at%20the%20Statewide%20Level/Constitution%20and%20Statutes/Maryland .pdf 8 Letter to the Honorable Neil Parrott, an elected Delegate from Hagerstown, from the Maryland State Board of Elections, July 22, 2011. Available at: http://www.elections.state.md.us/petitions/Letter%20to%20Delegate%20Parrott_7_22_2011.p df
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institutions away from the U.S. citizen children of Marylands own residents. As Delegate Parrott, quoted in a Judicial Watch press release, put these arguments: The voters of Maryland have spoken loudly and clearly that they want to be able to vote to decide whether to give their hard-earned money to subsidize college educations for illegal aliens. This lawsuit from illegal aliens and Case de Maryland, attempting to deny Marylanders their constitutional right to referendum, should be dismissed so that the voters, not the courts, can decide. 9 In terms of our class discussion of how our immigration system might be reformed to serve public needs, the issue the voters will confront on November 6th is whether this choice unreasonably rewards the illegal conduct of people who may be in the U.S. without proper immigration status or whether the policy is promoting an ethic of self-improvement, productive effort, and assimilation. As with our class discussions, I see many points of view on this controversy. The process of democratic decision-making in our style of self government requires some toleration and even respect for the heartfelt views of others. Both proponents and opponents of SB 167 are fearful that the outcome of the November 2012 referendum will go against their preferences, and both are still litigating the procedural issues that led the State Board of Elections to place this matter on the ballot. While the Circuit Court of Anne Arundel County denied injunctive relief on February 12, 2012, the plaintiffs have filed a notice of appeal on February 27, 2012. 10 There are still many weeks until November 6, 2012. During my conversation with the Civil Records Clerk of the Circuit Court for Anne Arundel County on March 21, she advised me that I needed to get my request for copies of the Memorandum of Decision to her office quickly (along with payment) because the case was about to go to the Court of Special Appeals and might be expedited in view of the election year deadlines for ballot preparation and approval. 11 As skilled advocates, the proponents of SB 167 have identified named plaintiffs in their civil suit against the Maryland State Board of Elections who are admirable and evoke my admiration, empathy and compassion: Plaintiff John Doe [an assumed name to protect the actual person from harassment, abuse, and ridicule] is age 18, a resident in Anne Arundel County, and has lived in Maryland since the age of 3. He graduated as valedictorian from a public high school in Baltimore in June 2011. While he works at a catering firm for income, he aspires to attend classes at Baltimore City Community College for two years, then transfer to the University of MarylandCollege Park. He hopes to attend medical school and become a doctor. Plaintiff Jesus Alberto Martinez, who resides in Garrett Park, came at age 17 to the U.S. as an undocumented immigrant. He worked in factories to support himself, and then took a class at a Maryland
Judicial Watch, press statement of Jan. 05, 2012, at http://www.judicialwatch.org/pressroom/press-releases/judicial-watch-mdpetition-com-asks-court-to-dismiss-lawsuit-seeking-todeny-voters-opportunity-to-vote-on-maryland-dream-act-in-2012/ 10 Maryland Judiciary Case Search, March 20, 2012, at http://casesearch.courts.state.md.us/inquiry/inquiryDetail.jis?caseId=02C11163050&detailL oc=CC 11 Private communication between Michael Benefiel and the Civil Records Clerk of the Circuit Court of Anne Arundel County, Annapolis, Maryland, March 21, 2012. I regret that Maryland Case Search did not publish this opinion online so I could get access to it today.
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community college. He became an ophthalmic surgeon, served in the U.S. Navy, and was naturalized as a U.S. citizen on the basis of his honorable discharge from that duty. According to the brief, Dr. Martinez has paid millions in U.S. and Maryland state taxes and now employs twenty Marylanders in his medical office. 12 Opponents of SB 167 frame the issue as one of respect for law and proper enforcement of our laws. For many, undocumented immigrants are here illegally. This seems to conclude the argument, and opponents then get upset at a suggestion that we could grant asylum or provide a path to citizenship for children brought to the U.S. by their parents. As with John Doe, above, even Judicial Watch would be hard put to argue that he had responsibility at age 3 for his conduct. Opponents even portray unauthorized immigrants (and their supporters) as a powerful special interest group seeking to take advantage of sympathetic (and gullible) Maryland taxpayers. In comments about efforts to provide in-state tuition for unauthorized immigrants, critics of the policy assert that it is a conspiracy to create another amnesty for illegals and that the aspiring students do not merit special discounts at public educational institutions. An economic argument in favor of taxpayer funding for public educational institutions justifies substantial spending on public schools in Maryland. As Alexander Sanchez, Marylands Secretary of Labor, Licensing & Regulation, and the highest ranking Hispanic official in Maryland State government, noted in a recent public statement: [Marylands] immigrant demographic is unique among American states: it is more highly educated than the native population, it has a higher income than in most states, and it is highly diverse (almost equal parts Latino, African, Asian and European). 13 With respect to legal issues raised by SB 167, I note three issues of significance: Federal preemption, specifically statutory law providing that an alien who is not lawfully present in the U.S. shall not be eligible on the basis of residence within a State for any postsecondary education benefit [8 U.S.C. 1623(a)]; Federal statutory law denying aliens who are not lawfully in the country any State or local public benefit [8 U.S.C. 1621]; and Equal protection questions with regard to differential treatment of nonimmigrant aliens, citizens, immigrant aliens, and undocumented immigrants. On May 9, 2011, Attorney General Doug Gansler provided official comments on each of the points to Governor Martin OMalley. On the basis that an undocumented immigrant individual is eligible for in-state tuition not on the basis of his/her residence, but on the basis of time in attendance in Maryland schools and graduation from Maryland schools, any conflict with Federal statutory law is avoided. 14 In this context, and as a persuasive authority, the decision of the California Supreme Court in
12 Plaintiffs Complaint for Declaratory and Injunctive Relief, as filed on Aug. 1, 2011, in the Circuit Court of Anne Arundel County, Case 02-C-11-163050, at pages 6-8. 13 A Message from Secretary Sanchez, emphasis added, downloaded March 21, 2012, from http://www.dllr.state.md.us/monthlynews/ 14 Attorney General of Maryland Gansler Letter to Governor OMalley, May 9, 2011, at page 4.

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Martinez v. Board of Regents of University of California, 241 P.3d 855 (Cal. 2010) came to a similar conclusion. In California, tuition exemption was provided for unlawful aliens not on the basis of residence, but instead on the basis of possessing a California high school degree, or that they have attended California high school for three or more years. Though the restrictive language of 8 U.S.C. 1621(a) appears to prohibit SB 167, 1621(d) provides an exception. A State may provide a public benefit through enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility. In other words, Federalism is respected and the will of voters of the several states will be allowed to grant in-state tuition if thats what voters want. From our class reading, I learned that the last reform of the Immigration and Nationality Act came about in 1996, with the passage of the Illegal Immigrant Reform and Immigrant Responsibility Act. The equal protection of the laws is both part of the Fourteenth Amendment to the U.S. Constitution and also Article 24 of the Maryland Declaration of Rights. Equal protection cases may involve either strict scrutiny or rational basis scrutiny when distinctions are drawn among different classes of individuals. The official opinion of Attorney General Gansler is that the rational basis of SB 167 would withstand scrutiny by the Maryland Court of Appeals or in Federal Court. As he asserts: The rational basis for the classification is clear. The entire purpose of the bill is to design a law that will enable the State to continue to provide services to young undocumented aliens, many of who came here as children, have attended Maryland schools, and have an attachment to the State. 15 In reviewing the legislative and litigation history of SB 167, I find that it is a valuable case study about the unresolved conflict between different national values. We seek to live in a nation of laws, with ordered liberty, and yet the presence of millions of undocumented and unauthorized immigrants demonstrates at least that our laws are widely disobeyed. Yet since our elected representatives have closed the door for a pathway to earned U.S. citizenship for those undocumented aliens who evaded inspection at the border, what option do we give them or ourselves? The plight of a young man or woman, who has achieved enough academic success to graduate from a high school in Maryland and cannot continue this education because of cost barriers, evokes compassion. The programs of financial aid for undergraduates and public support for higher education demonstrate a national commitment to an educated citizenry. If we will not educate our neighbors children, what will become of them and the neighborhood? As the shining example of Dr. Martinez, who employs 20, pays millions in taxes, and, I presume, performs valuable surgery, we deny talented, hard-working students education at our own cost. I will watch the campaigns of both proponents and opponents of the Maryland Dream Act this year with considerable interest. I predict that however the votes add up in November or even if the Court of Appeals rules to strike the referendum we will not reach a consensus on the matter with one another this year.

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Ibid., at page 9.

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