Gema Vargas, a senior at Mount Saint Mary, and Michelle McKenzie, a 2002 graduate, practice respiratory therapy during a summer class at UAMS.
Posted on 09/01/2006 11:17:17 AM PDT by pulaskibush
Although we do not have the benefit of judicial interpretation, it is my opinion that House Bill 1525 may violate 8 U.S.C. § 1623 if the courts read the high school attendance and graduation requirements as tantamount to residence.[1] Additionally, I believe the bill may give rise to an Equal Protection challenge if it is enacted into law.
With regard, first, to 8 U.S.C. § 1623, this federal statute was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. It provides as follows:
Notwithstanding any other provision of law, an alien who is not lawfully present in the United States 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 an amount, duration, and scope) without regard to whether the citizen or national is such a resident.
According to a plain reading of this statute, the State cannot offer illegal aliens any postsecondary education benefit “on the basis of residence within [the] State†unless a non-resident citizen is eligible for the benefit.[2] Because the benefits under HB 1525 do not appear to extend to non-resident citizens, it would seem that exempting illegal aliens from the “nonresident portion of total tuition†will be contrary to 8 U.S.C. § 1623 unless this benefit is not extended to aliens “on the basis of residence within [the] State.â€Â The same analysis applies with respect to “state-supported scholarships,†assuming that by this term HB 1525 means scholarships that are otherwise only available to Arkansas residents.
Turning to HB 1525, eligibility for these benefits is based upon three years of high school attendance and high school graduation in the State (or receipt of a GED). While this does not expressly establish eligibility “based on residence within [the] State,†I believe a court faced with the question could conclude that this is a de facto residence requirement, particularly when it is recognized that state residency is a general prerequisite to high school attendance in Arkansas. Arkansas Constitution Article 14, Section 1 provides in part that "the State shall ever maintain a general, suitable and efficient system of free public schools.…â€Â The legislature has interpreted this mandate to mean that the free public schools must generally be available in appropriately sized districts to serve resident students. See A.C.A. § 6-18-202.[3] Â
An Equal Protection question also arises under HB 1525 as currently drafted. The bill appears to make an undocumented high school graduate eligible for the exemption from the “nonresident portion of total tuition†regardless of whether he or she is currently an Arkansas resident. On the other hand, however, another student who is not currently an Arkansas resident but who otherwise meets the requirements of HB 1525 (attended high school for at least three years and graduated or received a GED in the State), except that he or she is not an undocumented alien, would apparently not be eligible for the exemption. State laws that make distinctions based on alienage must meet the requirements of the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution. Graham v. Richardson, 403 U.S. 353 (1971). Such laws are evaluated under “heightened†review, and can only survive challenge if they serve important governmental objectives and are substantially related to those objectives. Plyler, supra; Craig v. Boren, 492 U.S. 190 (1976). Few statutes have ever been found to satisfy this standard. Thus, I believe HB 1525 would likely fail to meet this test.
It is my opinion for the foregoing reasons that HB 1525 may be subject to challenge under federal law.
Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE
Attorney General
Arkansas Ping
Los Puercos! SOOOOO-WEEEEEE!!!!!!!!!!!!
Wow...reading that one just about made me sick.
In the university
To prevent adversity
To the Minority.
That must be the official Latino/Hispanic motto.
That is here illegally
Isn't that such a pity?
"Before they get UPPITY."........
There is so much wrong with her attitude, I don't know where to begin. Obviously this young lady has no loyalty to the country that has given her these great opportunities, she exhibits a ridiculous entitlement mentality, and has less then zero understanding regarding the concept of citizenship.
No wonder there is no work in South America. I wouldn't hire someone like her either.
Bank rules make it difficult to get loans, so bank robbers have to get the money illegally.
Sounds logical to me. /sarc
In other words, after leeching off the US and displacing an American student, she'll take her expensive and valuable education back to her TRUE country to benefit her TRUE people.
It is their world view.
If you spend any time talking with illegal Latinos, the same line of reasoning comes up over and over: "I only want the same things you already have, so how can you blame me for not doing whatever it takes to get them? "
They truly think they are victims in some sort of cosmic birth lottery. That the poverty and crime in their home country is not their fault. There is absolutely no acknowledgement that Americans have more than they have because we worked hard for it it. They seem to believe America was made a prosperous and law abiding nation by some random stroke of blind luck.
If you spend any time talking with illegal Latinos, the same line of reasoning comes up over and over: "I only want the same things you already have, so how can you blame me for not doing whatever it takes to get them? "
They truly think they are victims in some sort of cosmic birth lottery. That the poverty and crime in their home country is not their fault. There is absolutely no acknowledgement that Americans have more than they have because we worked hard for it it. They seem to believe America was made a prosperous and law abiding nation by some random stroke of blind luck.
The locals don't know all that many, either...
I fail to see how this is a bad thing.
Do you allow thieves to steal from your kids? Do you find tapeworms and ticks benign? Or maybe you come from a long line of pirates?
There were a lot of American-educated Italians, for example, who returned to help bring their country from the brink of fascism.
ping
Gema Vargas, a senior at Mount Saint Mary, and Michelle McKenzie, a 2002 graduate, practice respiratory therapy during a summer class at UAMS.
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