Maryland’s 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 state’s 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 O’Malley 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.


2012 authorities are hoping the Maryland Judiciary will expedite the appeals process in this Male unauthorized immigrants must document they have registered with the Selective Service System. there is no real opportunity for an unauthorized immigrant to adjust this status while remaining in the U. MDPetitions.S. if between the ages of 18-26.cornell. 5 Eligibility for the benefits of in-state tuition for such undocumented immigrants also requires documentation that the student or the student’s parents have filed Maryland state income tax returns for three years..S. for example attending the A visit to MDPetitions. SB 167 also establishes time limits for public or nonpublic high school graduates to begin their community college enrollment and.” to a referendum on the November ballot as well.judicialwatch. 2012. a nonimmigrant alien. also serves as the honorary chairman of an organization. 2012. transfer to a four-year public institution. 2 Page | 2 . the “Religious Freedom and Civil Marriage Protection Act. at http://www. A nonimmigrant student would most likely hold an F visa.” and to exclude “a nonimmigrant alien within the meaning of 8 and expedited hearing would be requested there as well.” 4 Such an individual is exempt from paying the out-of-state tuition rate at a community 3 Judicial Watch press release of January 05. as we have learned by reading Immigration Law and Procedure by David Weissbrodt and Laura Danielson (Thomson-West. The Cornell Legal Information Institute provides a link at http://www.[MARYLAND’S POLICY FOR IN-STATE TUITION FOR UNDOCUMENTED STUDENTS. Judicial Watch. showed that it is now a website designed to collect signatures to bring SB 116. BY MICHAEL BENEFIEL] March 22. In contrast. © 2005) under current law. obtained overseas after submitting documentation and an I-20 petition to a consular official of the U. Because of the entrenched positions of the disputing parties. § 1101(a)(15).” 3 SB 167 defined “individual” as used in Maryland’s education law to include an “undocumented immigrant individual. and later at other public institutions of higher education.” intervened in the civil action in Annapolis and has harshly criticized the legal strategy of Casa de Maryland and named plaintiffs. which describes itself as “the public interest group that investigates and prosecutes government corruption. This organization operated the website for voters to obtain petition documents for signature and self-certification as soon as SB 167 was on March 2 Delegate Parrott stated: “The idea of illegal aliens suing Maryland citizens to prevent them from voting illustrates how much they disrespect citizenship. while not required to fulfill the affidavit and document requirements. I predict that a decision by the COSA would immediately be appealed to the Court of Appeals. if this individual fulfills several other requirements. 2012. Longtime (first elected in 1978) Maryland Assembly Delegate Neil Parrott (R-Washington) downloaded March 21. Such requirements include an affidavit from the student promising to apply for permanent residence status within 30 days after becoming eligible to do so.S. 5 Since. https://mdpetitions. Department of State at an Embassy or Consulate. Opponents of SB 167 include prominent conservative advocacy organizations including Judicial Watch and the Immigration Reform Law Institute. Immigration Law which sets out definitions and lists the categories of nonimmigrant visas. unless the beneficiary of a private member’s 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. 4 This is the lengthy section of U. later.

” Article XVI. and provide productive contributions to Maryland’s economy in the future. have intervened in the Circuit Court for Anne Arundel County. on August led by Maryland Delegate Neil Parrott (R-Washington). indeed. D. 2011.655 for full-time in-state students. who represents the Hagerstown district in the House of Delegates. earn higher incomes. and ordered SB 167 placed as a voter referendum on the November 2012 ballot. were successful. valid signatures matching voter registration records of 55. Constitution of Maryland. Maryland.) and succeeded within the time limits required. 7 To bring a legislative action to referendum. The dollar benefit as a result of SB 167 for a particular unauthorized immigrant student was $17.736 Maryland voters must be presented to the Board of Elections by June 30.795 for full-time. as of Feb. Opponents of SB 167. 8 This decision suspended the effective date of SB 167. or. UMD College Park tuition rates were $ History/I&R%20at%20the%20Statewide%20Level/Constitution%20and%20Statutes/Maryland . Using computer-based technology and a website named “MDPetitions. persuasive arguments in favor of ordering SB 167 to be placed as a referendum on the November ballot. 2011. 2012 University of Maryland in College Park in authorized status as a student visa holder. 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. any Act.iandrinstitute.140. This civil action provides useful background on legal points at issue in the referendum process in Maryland. 2012. polarizing. to approve or reject at the polls. 7 “The people reserve to themselves power known as The Referendum. or part of any Act of the General Assembly. 6 The decision of Maryland’s elected legislators to create educational opportunities in Maryland’s institutions of higher learning for unauthorized immigrants proved controversial.elections. Voter signature collection efforts. Proponents of SB 167 filed in the Circuit Court for Anne Arundel County. and who may even take places at public higher education In the Fall of 2011. an elected Delegate from Hagerstown. Registered Maryland voters have rights to petition laws to referendum under our state constitution.C. from the Maryland State Board of Elections.C. 27. 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. July 22. originally scheduled for July 1. law. who include the Immigration Reform Law Institute and Judicial Watch. if approved by the Governor. out-of-state students. by petition to have submitted to the registered voters of the State.923 accepted signatures on July 22. 2011. would continue to pay substantially higher out-of-state tuition rates. 2011. D.pdf 8 Letter to the Honorable Neil Parrott.S. working with counties throughout the a Complaint for Declaratory and Injunctive $25.p df 6 Page | 3 . to a future date when voters approve this legislation in the referendum now scheduled for November 6. making forceful and. BY MICHAEL BENEFIEL] March 22. More broadly. http://www. verified 108. Section 1.[MARYLAND’S POLICY FOR IN-STATE TUITION FOR UNDOCUMENTED STUDENTS.) and Judicial Watch (Washington.” Delegate Parrott and other opponents of SB 167 mounted a campaign supported in part by the Immigration Reform Law Institute (Washington. Available at: http://www. 2012. 2011. The Maryland State Board of Elections.state. if passed by the General Assembly over the veto of the Governor.

March 21. He graduated as valedictorian from a public high school in Baltimore in June 2011. 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. and assimilation. and has lived in Maryland since the age of 3. 10 There are still many weeks until November 6. BY MICHAEL BENEFIEL] March 22. 11 As skilled advocates. Annapolis. who resides in Garrett Park. attempting to deny Marylander’s their constitutional right to referendum. 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. Plaintiff Jesus Alberto Martinez. he aspires to attend classes at Baltimore City Community College for two years. 2012. This lawsuit from illegal aliens and Case de Maryland. 2012. then transfer to the University of Maryland—College Park. 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. 9 Page | 4 . abuse. 05.state. 10 Maryland Judiciary Case Search. citizen children of Maryland’s own residents. While he works at a catering firm for income. Both proponents and opponents of SB 167 are fearful that the outcome of the November 2012 referendum will go against their preferences. at http://www. a resident in Anne Arundel County. Maryland.S. March 20.judicialwatch. empathy and compassion: Plaintiff John Doe [an assumed name to protect the actual person from harassment. 2012. at http://casesearch. and ridicule] is age 18. should be dismissed so that the voters. 2012 institutions away from the 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. can decide. without proper immigration status or whether the policy is promoting an ethic of self-improvement. and then took a class at a Maryland Judicial Watch. As Delegate Parrott. During my conversation with the Civil Records Clerk of the Circuit Court for Anne Arundel County on March 21. 2012. not the courts. I see many points of view on this controversy. the plaintiffs have filed a notice of appeal on February 27. The process of democratic decision-making in our style of self government requires some toleration and even respect for the heartfelt views of others.S. came at age 17 to the U. as an undocumented immigrant. quoted in a Judicial Watch press release.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.S. I regret that Maryland Case Search did not publish this opinion online so I could get access to it today. As with our class discussions. and both are still litigating the procedural issues that led the State Board of Elections to place this matter on the ballot. press statement of Jan.” 9 In terms of our class discussion of how our immigration system might be reformed to serve public needs.[MARYLAND’S POLICY FOR IN-STATE TUITION FOR UNDOCUMENTED STUDENTS.courts. While the Circuit Court of Anne Arundel County denied injunctive relief on February 12. He worked in factories to support himself. productive effort. He hopes to attend medical school and become a doctor.

For many. Federal statutory law denying aliens who are not lawfully in the country “any State or local public benefit” [8 U. Attorney General Doug Gansler provided official comments on each of the points to Governor Martin O’Malley. at page 4. I note three issues of significance: Federal preemption. 2012.S. Opponents even portray unauthorized immigrants (and their supporters) as a powerful special interest group seeking to take advantage of sympathetic (and gullible) Maryland taxpayers. citizen on the basis of his honorable discharge from that duty. and as a persuasive authority. Navy. 2011. 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. § 1623(a)]. by their parents. As Alexander Sanchez. Dr. Martinez has paid millions in U. According to the brief. the decision of the California Supreme Court in 12 Plaintiff’s “Complaint for Declaratory and Injunctive Relief. undocumented immigrants are here illegally. served in the U. shall not be eligible on the basis of residence within a State for any postsecondary education benefit…” [8 U.S. 2011. Page | 5 . and it is highly diverse (almost equal parts Latino. 2012 community college.” emphasis added. Asian and European). even Judicial Watch would be hard put to argue that he had responsibility at age 3 for his conduct. Case 02-C-11-163050. it has a higher income than in most states. citizens. 12 Opponents of SB 167 frame the issue as one of respect for law and proper enforcement of our laws.S. and Maryland state taxes and now employs twenty Marylanders in his medical office. On the basis that an “undocumented immigrant individual” is eligible for in-state tuition not on the basis of his/her residence. This seems to conclude the argument.S.dllr. 13 With respect to legal issues raised by SB 167. noted in a recent public statement: [Maryland’s] immigrant demographic is unique among American states: it is more highly educated than the native population. immigrant aliens. 1.S. and the highest ranking Hispanic official in Maryland State government. and undocumented immigrants. 13 “A Message from Secretary Sanchez. On May 9. 14 In this context. 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. § 1621]. from http://www. BY MICHAEL BENEFIEL] March 22.S. at pages 6-8.[MARYLAND’S POLICY FOR IN-STATE TUITION FOR UNDOCUMENTED He became an ophthalmic surgeon. but on the basis of time in attendance in Maryland schools and graduation from Maryland schools. 2011.C. Maryland’s Secretary of Labor.” as filed on Aug. and Equal protection questions with regard to differential treatment of nonimmigrant aliens. Licensing & Regulation. downloaded March 21. in the Circuit Court of Anne Arundel County. In comments about efforts to provide in-state tuition for unauthorized immigrants.C. specifically statutory law providing that “an alien who is not lawfully present in the U. As with John Doe. May 9.state. any conflict with Federal statutory law is avoided. African. 14 Attorney General of Maryland Gansler Letter to Governor O’Malley.S. and was naturalized as a U. An economic argument in favor of taxpayer funding for public educational institutions justifies substantial spending on public schools in Maryland.

§ 1621(d) provides an exception. citizenship for those undocumented aliens who evaded inspection at the border. 15 In reviewing the legislative and litigation history of SB 167. As he asserts: The rational basis for the classification is clear. In California. 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. hard-working students education at our own cost. with “ordered liberty. performs valuable surgery. 15 Ibid. 241 P..S.S.[MARYLAND’S POLICY FOR IN-STATE TUITION FOR UNDOCUMENTED STUDENTS. Constitution and also Article 24 of the Maryland Declaration of Rights. or that they have attended California high school for three or more years. Board of Regents of University of California. have attended Maryland schools. I learned that the last “reform” of the Immigration and Nationality Act came about in 1996. pays millions in taxes. at page 9. evokes compassion. and have an attachment to the State. tuition exemption was provided for unlawful aliens not on the basis of residence. what will become of them and the neighborhood? As the shining example of Dr. 2010) came to a similar conclusion. I will watch the campaigns of both proponents and opponents of the Maryland Dream Act this year with considerable interest. many of who came here as children. who employs 20. Yet since our elected representatives have closed the door for a pathway to earned U. with the passage of the “Illegal Immigrant Reform and Immigrant Responsibility Act. who has achieved enough academic success to graduate from a high school in Maryland and cannot continue this education because of cost barriers. which affirmatively provides for such eligibility.C. We seek to live in a nation of laws. In other words. Equal protection cases may involve either strict scrutiny or rational basis scrutiny when distinctions are drawn among different classes of individuals. Martinez. what option do we give them or ourselves? The plight of a young man or woman. BY MICHAEL BENEFIEL] March 22. The programs of financial aid for undergraduates and public support for higher education demonstrate a national commitment to an educated citizenry. 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. From our class reading. Federalism is respected and the will of voters of the several states will be allowed to grant in-state tuition if that’s what voters want.S. Page | 6 .” and yet the presence of millions of undocumented and unauthorized immigrants demonstrates at least that our laws are widely disobeyed. but instead on the basis of possessing a California high school degree. 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. and. 2012 Martinez v. I presume. we deny talented. I find that it is a valuable case study about the unresolved conflict between different national values.” The equal protection of the laws is both part of the Fourteenth Amendment to the U. 1996. If we will not educate our neighbors’ children. Though the restrictive language of 8 U. A State may provide a public benefit … through enactment of a State law after August 22.3d 855 (Cal. § 1621(a) appears to prohibit SB 167.

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