Requires non-immigrant alien students, granted in-state tuition at the state university or community colleges, to continuously reside in the state during high school

Summary of provisions

Section 1 of the bill amends subparagraph 8 of paragraph h of subdivi- sion 2 of section 355 of the education law, with respect to students at State-operated institutions of the State University of New York, to add additional qualifications for eligibility to receive resident tuition rates:

(i) living continuously in New York while attending an approved New York high school; or

(ii) living continuously in New York while attending an approved New York state program for general equivalency diploma exam preparation; and

(iii) attendance at an institution or educational unit of the State University within five years of receiving a New York state high school diploma or New York state general equivalency diploma.

Section 2 of the bill amends subdivision 5 of section 6301 of the educa- tion law, with respect to students at community colleges under the program of the State University of New York, to add additional quali- fications for eligibility to receive resident tuition rates:

(i) living continuously in New York while attending an approved New York high school; or

(ii) living continuously in New York while attending an approved New York state program for general equivalency diploma exam preparation; and

(iii) attendance at a community college under the program of the State University within five years of receiving a New York state high school diploma or New York state general equivalency diploma.

The bill preserves in-state tuition rates for students who have matricu- lated in a State-operated institution or educational unit of the State University prior to the effective date of the act.

The bill preserves in-state tuition rates for students who have matricu- lated in a community college under the program of the State University prior to the effective date of the act.

Section 3 of the bill provides for the law to become effective imme- diately.

Existing law

New York's tuition benefit law, codified at Education Law 55 355(2) (h)(8) and 6301 (5), allows any non-resident State University student or student at a community college operating under the program of the State University, respectively, other than a non-immigrant alien, to pay tuition at resident (in-state) rates provided such student(i) attended a New York high school for two years or more; and (ii) gradu- ated from a New York high school; or (iii) attended a New York general equivalency diploma exam preparation course in New York; and (iv) received a general equivalency diploma in New York and applied to a unit of the State University of New York or community college operating under the program of the State University within five years of high school graduation or receipt of a general equivalency diploma.

The proposed bill would add to existing law two additional requirements for certain non-resident students to be eligible to receive the resident tuition rate, and also require attendance, rather than application for attendance, at the State University or community college operating under the program of the State University. The new requirements are listed in Section 2 above, "Summary of Provisions."

Legislative history

2012: S. 7822

Statement in support

Federal Immigration Law, 8 U.S.C. 51623, does not permit undocumented immigrants to receive any state or local public benefit, including postsecondary education, unless a state enacts a law to affirmatively provide for such benefit. Any benefits provided to undocumented immigrants pursuant to state law must be provided to U.S. citizens, even if they are not residents of the state, in the same manner and in equal measure. In 2002, New York enacted a tuition benefit law to permit undocumented immigrants to qualify for resident tuition rates. Typically, such students came to New York as minors and attended New York's public elementary and secondary schools, but because of their undocumented immigration status, they could not qualify for legally domiciled resident status and in-state tuition rates, thereby increasing the costs of their access to higher education. To qualify for in-state tuition rates under the 2002 law, all non-resident students, irrespec- tive of immigration status, are required to have attended New York State high schools or to have obtained New York general equivalency diploma.

Ten years experience with the New York tuition benefit law demonstrates that its eligibility criteria for resident tuition rates are broader than necessary or intended. The law enables any out-of-state U.S. citi- zens who attend New York high schools to pay tuition at resident rates, even though their non-resident parents live in other, mainly contiguous states. Students residing in New York border states such as New Jersey,

Vermont, Pennsylvania and Connecticut, who commute from their home state to attend public and private high schools in New York, as well as students who attend private boarding schools in New York, are eligible for resident tuition under the law by virtue of their mere attendance and graduation from New York high schools. The breadth of the current law provides resident tuition benefits to a large group of students and their parents who do not have stronger ties to New York and who are not among the undocumented immigrant population the Legislature intended to benefit. The need for this legislative proposal was highlighted by a class action lawsuit filed against SUNY on behalf of three former students of Binghamton University who applied to SUNY as residents of New Jersey but graduated from a New York state high school. Their request for a refund of the tuition differential between in-state and out of state tuition (which they had paid for all four years of their attendance at SUNY) had been declined by the campus due to their delay in seeking a refund or tuition adjustment while they were enrolled. As a result of responding to discovery and other information requests flowing from the lawsuit, SUNY was made aware of the need for clarification of the 2002 law, which goes beyond the original legislative intent and provides an unwarranted and substantial financial benefit to non-resi- dents with minimal contacts with the State.

The Legislature did not intend this result. Rather, it sought to provide higher education opportunities to under-served members of the immigrant community who had established roots in New York State, to enhance their potential to obtain college degrees and contribute to New York's econo- my, without the challenge of paying higher tuition rates. And, while the law must be somewhat broader than its real intent in order to comply with federal law, it need not be as broad as currently written.

Eleven states have some form of status or resident tuition laws: Cali- fornia, Connecticut, Illinois, Kansas, Maryland (stalled by state ballot measure), Nebraska, New Mexico, New York, Texas, Utah, and Washington. Analysis of these state laws and consultation with experts in the field of immigration and tuition benefit laws leads to the conclusion New York's law can and should be amended to narrow the eligibility require- ments.

Budget implications

Figures from a recent survey of 22 State-operated campuses of the State University show that between 2005 and 2011, resi- dent tuition rates were provided to 543 students based on the eligibil- ity provisions of the current law, but only 38 students (6.90 of the total) were undocumented immigrants. Thus the State University provided the resident tuition rate to 505 out-of-state resident U.S. citizens.

In 2011, annual tuition for baccalaureate degree granting undergraduate programs at institutions of the State University was $5,270 for New York residents, as compared to $14,320 for non-residents, a difference of$9,050 per student per year. The difference, when multiplied by 505 students, results in a tuition revenue loss of $4,570,250. Assuming each student attended four years at the State University and received the

resident tuition rate for all four years, the estimated tuition revenue lost quadruples to $18,281,000.

Some of such out-of-state resident students would continue to qualify for in-state tuition rates under the revised criteria, but it would be many fewer than under the current, broader criteria.

In 2011, the average annual resident tuition rate for students at the thirty community colleges under the program of the State University, each of which has authority to establish its own tuition rates, was $3,703, and the average annual non-resident tuition

Effective date

Immediately, with provisions.