Senate Bill S7822

                                BILL NUMBER:S7822

TITLE OF BILL:

An act to amend the education law, in relation to tuition and fees for
certain non-immigrant alien students of the state university of New York
and community colleges

PURPOSE:

To change the requirements for certain non-resident students to receive
resident (instate) tuition rates at State-operated institutions of the
State University of New York and at community colleges operating under
the program of the State University. This bill will not change or dimin-
ish in any way the in-state tuition benefit for New York's undocumented
immigrant students.

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
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:

None; new legislation.

STATEMENT IN SUPPORT:

Federal Immigration Law, 8 U.S.C. §1623, does not permit undocumented
immigrants to receive any state or local public benefit, including post-
secondary education, unless a state enacts a law to affirmatively
provide for such benefit. Any benefits provided to undocumented immi-
grants 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.  Typical-
ly, such students came to New York as minors and attended New York's
public elementary and secondary schools, but because of their undocu-
mented 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, irrespective 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, resident tuition rates were

provided to 543 students based on the eligibility provisions of the
current law, but only 38 students (6.9% 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.