Could Tennessee public colleges and universities offer in-state tuition to undocumented students if state law gave each institution authority to set its own tuition eligibility rules?

Plain-English summary

Representative John Ragan asked the AG to assess House Bill 660/Senate Bill 635 of the 110th General Assembly. The bill would replace existing detailed rules about who qualifies for in-state tuition at Tennessee public colleges with a single delegation: each state institution's governing body decides who qualifies. Sections 2, 3, and 4 of the bill would delete Tenn. Code Ann. §§ 49-8-102, 49-8-104, and 49-9-105, and give the board of regents, each state university board, and the University of Tennessee board of trustees the same delegated authority. Section 5 would amend the definition of "State or local public benefit" in Tenn. Code Ann. § 4-58-102(7) to exclude an institution's tuition-eligibility decisions.

The AG concluded that even if the bill passes, individual institutions cannot lawfully grant in-state tuition to unlawfully present aliens. Federal law (8 U.S.C. § 1621) bars unlawfully present aliens from any "State or local public benefit," and in-state tuition is a public benefit. § 1621(d) gives states an opt-out, but only through "the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility." The bill would not affirmatively provide for that eligibility. It would just delegate discretion to institutions. Every court that has read § 1621(d) has said the same thing: the state legislature itself must pass a law that expressly authorizes the benefit for unlawfully present aliens. A university board's decision is not "the enactment of a State law" within the meaning of the federal statute.

So although the bill would substantively let institutions set in-state tuition policy in general, the federal statute would continue to bar institutions from extending in-state tuition to unlawfully present aliens. The AG also noted that, because the bill would not allow institutions to make unlawfully present aliens eligible for in-state tuition, the bill would not implicate the IIRIRA's restriction (8 U.S.C. § 1623) or affect statewide programs like the Hope Scholarship and Tennessee Promise.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The PRA framework. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRA), Pub. L. No. 104-193, included 8 U.S.C. § 1621. Subsection (a) makes an alien who is not (1) a qualified alien, (2) a nonimmigrant, or (3) an alien paroled into the United States for less than a year "not eligible for any State or local public benefit." Subsection (c)(1)(B) defines "State or local public benefit" to include "postsecondary education" and any "similar benefit for which payments or assistance are provided . . . by an agency of a State or local government or by appropriated funds of a State or local government." Subsection (d) gives the state an opt-out:

A state may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.

In-state tuition is a public benefit. Saenz v. Roe, 526 U.S. 489, 518 (1999), describes in-state tuition rates as "cash subsidies provided to a limited class of people." Martinez v. Regents of the Univ. of Cal., 241 P.3d 855 (Cal. 2010), assumed in-state tuition is a public benefit. Other AG offices have agreed (Colorado AG Op. 12-04; Maryland AG letter to Gov. O'Malley, May 9, 2011).

§ 1621(d) requires legislative action that affirmatively mentions unlawfully present aliens. Every court to address § 1621(d) has read it the same way:

• Martinez: state legislation must "expressly state that it applies to undocumented aliens, rather than conferring a benefit generally without specifying that its benefits may include undocumented aliens." 241 P.3d at 867-68.
• Florida Bar Examiners, 134 So. 3d 432 (Fla. 2014): unlawfully present aliens were ineligible for Florida bar admission because the legislature had not enacted a law affirmatively providing for their eligibility. The court rejected the argument that "non-legislative forms of 'State law' could meet the requirements."
• Kaider v. Hamos, 975 N.E.2d 667, 674 (Ill. Ct. App. 2012): § 1621(d) is satisfied only by "state law that conveys a positive expression of legislative intent to opt out of section 1621(a) by extending state or local benefits to unlawful aliens."

Why the bill fails § 1621(d). Two reasons:

1. The bill does not expressly mention unlawfully present aliens. It just delegates tuition-eligibility authority to institutions. Martinez held that a general grant of authority is not enough; the law must specify that its benefits may include undocumented aliens.
2. Even if an institution then chose to extend in-state tuition to unlawfully present aliens, that institutional decision is not "the enactment of a State law." Branch v. Smith, 538 U.S. 254, 264 (2003): "An 'enactment' is the product of legislation." The Florida Bar Examiners court (134 So. 3d at 435) ruled the same way: "[t]he plain language of the statute and case law indicate the phrase 'enactment of a State law' requires a state legislature to address this appropriations-related issue and pass legislation, which the governor must either approve or permit to become the law of the State."

Practical consequence. Even if HB 660/SB 635 became law, institutions could not lawfully grant in-state tuition to unlawfully present aliens. The federal prohibition in § 1621(a) would still apply.

No knock-on effects. Because the bill would not actually let institutions extend in-state tuition to unlawfully present aliens, the AG said the bill would not implicate IIRIRA's 8 U.S.C. § 1623 (which prohibits residence-based postsecondary benefits to unlawfully present aliens unless U.S. citizens and nationals get equivalent benefits without residence) or affect the Hope Scholarship (Tenn. Code Ann. § 49-4-901 et seq.) or Tennessee Promise (Tenn. Code Ann. § 49-4-708).

Common questions

Q: Can a Tennessee public university choose to offer in-state tuition to an undocumented student?
A: According to this opinion, no. Federal law bars unlawfully present aliens from in-state tuition unless the state legislature has affirmatively passed a law extending eligibility to them. A board decision at a single university doesn't satisfy that federal requirement.

Q: What would Tennessee need to do to make undocumented students eligible for in-state tuition?
A: The state legislature would need to pass a law that expressly says unlawfully present aliens are eligible for in-state tuition. California, for example, did this through legislation that the California Supreme Court upheld in Martinez.

Q: Does this rule apply to all state public benefits, or just tuition?
A: § 1621 applies to all state and local public benefits as defined in § 1621(c). It covers retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefits, and any "similar benefit." States can opt out only through affirmative legislation specifically extending eligibility.

Q: What about IIRIRA's § 1623, which deals with postsecondary benefits?
A: § 1623 is a separate federal restriction that bars unlawfully present aliens from receiving postsecondary education benefits based on state residence unless citizens and nationals can get the same benefits without regard to residence. The AG noted that since the proposed Tennessee bill would not actually make unlawfully present aliens eligible for in-state tuition, § 1623 would not come into play here.

Q: Does Tennessee Promise or the Hope Scholarship reach undocumented students?
A: Those statewide programs are themselves "State or local public benefits" under § 1621 and are subject to the same federal restrictions. The AG did not analyze them separately because the bill at issue would not let institutions extend in-state tuition to unlawfully present aliens in the first place.

Citations and references

Federal statutes:

• 8 U.S.C. § 1601(6)
• 8 U.S.C. § 1621(a), (c)(1)(B), (d)
• 8 U.S.C. § 1623

State statutes:

• Tenn. Code Ann. §§ 49-8-102, 49-8-104, 49-9-105
• Tenn. Code Ann. § 4-58-102(7)
• Tenn. Code Ann. § 49-4-901 et seq. (Hope Scholarship)
• Tenn. Code Ann. § 49-4-708 (Tennessee Promise)

Cases:

• Branch v. Smith, 538 U.S. 254 (2003)
• Martinez v. Regents of the Univ. of Cal., 241 P.3d 855 (Cal. 2010)
• Saenz v. Roe, 526 U.S. 489 (1999)
• Kaider v. Hamos, 975 N.E.2d 667 (Ill. Ct. App. 2012)
• Fla. Bd. of Bar Exam'rs Re: Question as to Whether Undocumented Immigrants are Eligible for Admission to the Fla. Bar, 134 So. 3d 432 (Fla. 2014)

Other AG authority:

• Colo. Att'y Gen. Op. 12-04 (June 19, 2012)
• Letter from Douglas E. Gansler, Att'y Gen. of Maryland, to Martin O'Malley, Governor of Maryland (May 9, 2011)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-0531.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
December 6, 2017
Opinion No. 17-53

Proposed Legislation Granting State Institutions of Higher Education the Authority to Determine Eligibility for In-State Tuition

Question

House Bill 660/Senate Bill 635, 110th Gen. Assem. (2017) (the "proposed legislation") would grant the governing body of each state institution of higher education the authority "to determine the qualifications that students must possess to be eligible for payment of in-state tuition and fees." Under the proposed legislation, would each state institution of higher education be able to determine on its own whether to offer in-state tuition to unlawful aliens? If so, what impact would the decision of one or more state institutions to offer in-state tuition to unlawful aliens have on other state institutions who have not chosen to do so and on statewide programs such as the Hope Scholarship and Tennessee Promise?

Opinion

The proposed legislation would not permit individual state institutions of higher education to make unlawful aliens eligible for in-state tuition. That action would remain prohibited by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. § 1621.

ANALYSIS

The proposed legislation, House Bill 660/Senate Bill 635, 110th Gen. Assem. (2017), would add a new section to title 49 granting "[t]he governing body of each public institution of higher education" the authority "to determine the qualifications that students must possess to be eligible for payment of in-state tuition and fees." Sections 2, 3, and 4 of the proposed legislation would delete the existing Code provisions defining which students are eligible for in-state tuition, see Tenn. Code Ann. §§ 49-8-102, 49-8-104, 49-9-105, and replace them with declarations that the "board of regents and each state university board" and the "board of trustees of the University of Tennessee" shall each "have the authority to determine the qualifications that students must possess to be eligible for payment of in-state tuition and fees." Section 5 of the bill would amend the Code's definition of a "State or local public benefit" to exclude a state institution's decision to make an individual eligible to pay in-state tuition. See Tenn. Code Ann. § 4-58-102(7).

Federal law limits the authority of state governments to provide public benefits, including in-state tuition, to unlawful aliens. Most relevant here, 8 U.S.C. § 1621, a part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRA), Pub. L. No. 104-193, provides that an alien who is not (1) a qualified alien (2) a nonimmigrant, or (3) an alien who is paroled into the United States for less than a year, under the applicable provisions of the immigration code, is "not eligible for any State or local public benefit." 8 U.S.C. § 1621(a).

In-state tuition is a "public benefit" within the meaning of § 1621(a). A "public benefit" is defined, in part, as "any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided . . . by an agency of a State or local government or by appropriated funds of a State or local government." Id. § 1621(c)(1)(B) (emphases added). Under the plain meaning of the terms, in-state tuition constitutes a "postsecondary education" benefit and, if not, at least constitutes a "similar benefit for which payments or assistance are provided." See Martinez v. Regents of the Univ. of Cal., 241 P.3d 855 (Cal. 2010) (assuming in-state tuition is a public benefit); Saenz v. Roe, 526 U.S. 489, 518 (1999) ("[I]n-state tuition rates are cash subsidies provided to a limited class of people[.]"); Col. Att'y Gen. Op. 12-04 (June 19, 2012) (finding "little doubt" reduced tuition constitutes a "public benefit" within the meaning of § 1621); Letter from Douglas E. Gansler, Attorney General of Maryland, to Martin O'Malley, Governor of Maryland (May 9, 2011) ("It is my view that an exemption from out-of-state tuition or out-of-county tuition is a benefit within the meaning of [§ 1621].").

Section 1621, however, also grants states the authority to override its prohibition on providing public benefits to unlawful aliens if they so choose:

A state may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.

8 U.S.C. § 1621(d). As one court has explained the operation of these provisions, "[i]n passing the PRA, Congress effectively invalidated all existing state laws, regulations, or executive orders that extended state or local benefits to unlawful aliens, based on Congress's asserted interest in 'remov[ing] the incentive for illegal immigration provided by the availability of public benefits.'" Kaider v. Hamos, 975 N.E.2d 667, 673 (Ill. Ct. App. 2012) (second alteration in original) (quoting 8 U.S.C. § 1601(6)). This prohibition is "not absolute, however," because "Congress recognized a need to give the states autonomy — or as the title of [§] 1621(d) describes it, 'authority' — to provide benefits to aliens not lawfully present in the United States." Id.

To exercise its authority under § 1621(d), a state must "enact[]" a "State law" that "affirmatively provides" for the eligibility of unlawful aliens for a public benefit. 8 U.S.C. § 1621(d). Every court to have addressed this provision has interpreted it to require the state legislature to enact legislation expressly making unlawful aliens eligible for public benefits, including in-state tuition. In Martinez, the California Supreme Court held that, to meet the "affirmatively provides" requirement, state legislation did not have to expressly reference § 1621 but did have to "expressly state that it applies to undocumented aliens, rather than conferring a benefit generally without specifying that its benefits may include undocumented aliens." 241 P.3d at 867-68. Similarly, the Florida Supreme Court concluded that unlawful aliens were prohibited from admission to the Florida bar by § 1621(a) because the state legislature had not enacted a law that affirmatively provided for their eligibility. Fla. Bd. of Bar Exam'rs Re: Question as to Whether Undocumented Immigrants are Eligible for Admission to the Fla. Bar, 134 So. 3d 432, 434-35 (Fla. 2014). The courts agree that the requirements of § 1621(d) are satisfied only by a "state law that conveys a positive expression of legislative intent to opt out of section 1621(a) by extending state or local benefits to unlawful aliens." Kaider, 975 N.E.2d at 674.

In short, state action that does not constitute an "enactment of a State law" or that confers eligibility for a benefit generally, without expressly mentioning unlawful aliens, does not satisfy the requirements of § 1621(d).

The proposed legislation does not satisfy the requirements of § 1621(d). The bill lacks any "affirmative" expression of legislative intent to opt out of the prohibition in § 1621(a) and does not expressly make unlawful aliens eligible for in-state tuition at any Tennessee institution of higher education. In contrast to the California law found to satisfy the requirements of § 1621(d), the proposed legislation does not mention aliens at all, let alone "specify[] that its beneficiaries may include undocumented aliens." Martinez, 241 P.3d at 868. Accordingly, the proposed legislation does not "affirmatively provide" for the eligibility of unlawful aliens within the meaning of § 1621(d). See Col. Att'y Gen. Op. 12-04 (concluding a similar Colorado law that gave an individual state institution authority to set tuition rates did not satisfy § 1621(d) because "[n]o state law in Colorado 'affirmatively provide[d]' for tuition benefits to students who are unable to establish their lawful presence in the United States").

If the proposed legislation were enacted, actions taken by an individual state university to make unlawful aliens eligible for in-state tuition also would not satisfy § 1621(d), which requires the "enactment of a State law." (Emphasis added); see Branch v. Smith, 538 U.S. 254, 264 (2003) ("An 'enactment' is the product of legislation[.]"). As the Florida Supreme Court recognized, "[t]he plain language of the statute and case law indicate the phrase 'enactment of a State law' requires a state legislature to address this appropriations-related issue and pass legislation, which the governor must either approve or permit to become the law of the State." Fla. Bd. of Bar Exam'rs, 134 So.3d at 435. In so holding, the Florida Supreme Court rejected the argument that "non-legislative forms of 'State law' could meet the requirements" of § 1621(d). Id. Accordingly, as the Colorado Attorney General has recognized, § 1621(d) "requires an affirmative choice by the state legislature to provide benefits to individuals who cannot prove their lawful presence in the United States." Col. Att'y Gen. Op. 12-04 (emphasis added). A choice by one or more state institutions of higher education to provide such benefits would not satisfy the requirements of § 1621(d).

The proposed legislation therefore would not permit individual state institutions of higher education to make unlawful aliens eligible for in-state tuition and fees. That action would remain prohibited by § 1621(a). Accordingly, the proposed legislation would not implicate or affect other provisions of federal or state law related to unlawful aliens or postsecondary education benefits, including the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1623, and the Hope Scholarship and Tennessee Promise programs.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable John D. Ragan
State Representative
614 Cordell Hull Building
Nashville, TN 37243