Update:I was just following up on this a bit more, and I dug up the text of TITLE 8, §1101(A)(15) OF THE UNITED STATES CODE. It is the legal definition of an “immigrant”. Further, I hadn’t at first realized that this bill is essentially a repeat of House Bill 253/Senate Bill 520 from 2003, which was passed by the legislature but vetoed by Governor Ehrlich. That bill had been cosponsored by the entire District 17 House delegation: Barve, Gordon and Simmons. Senator Forehand voted for but did not sponsor the Senate bill. Quoting the Governor’s veto letter:
There are several reasons for my veto. First and foremost, there is a federal law that preempts the states from acting on this issue. In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress clearly spelled out its policy on this issue by passing into law the following provision: 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. 8 U.S.C. § 1623.
House Bill 253 attempts to circumvent this section by basing eligibility for in-State tuition not on residence, per se, but on where the undocumented immigrant attended high school. This is an approach which has been taken in a handful of other states since 2001, and which is too recent to have a record of being challenged in the courts. This approach, if it does not violate the law, certainly violates the spirit of Section 1623. Moreover, the approach leaves open the possibility that in-State tuition would be available to undocumented immigrants who physically reside in neighboring states or the District of Columbia, but attend successfully Maryland high schools.
According to this article by Alia Malik of Capital News Service, this is only one of a number of bills in support of illegal immigrants we can expect in the up coming session.
Mocoprogressive has some background. Following is the text of the proposed law, from HB 6:
SECTION 1. BE IT ENACTED BY THE GENERAL MARYLAND, That the Laws of Maryland read as follows: Article – Education 15–106.6.
(A) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, AN INDIVIDUAL, OTHER THAN A STUDENT WITHIN THE MEANING OF TITLE 8, §1101(A)(15) OF THE UNITED STATES CODE, SHALL BE EXEMPT FROM PAYING THE NONRESIDENT TUITION RATE AT A PUBLIC INSTITUTION OF HIGHER EDUCATION REGARDLESS OF RESIDENCY IF THE INDIVIDUAL:
(1) ATTENDED A PUBLIC OR NONPUBLIC SECONDARY SCHOOL IN THIS STATE FOR AT LEAST 2 YEARS;
(2) GRADUATED FROM A PUBLIC OR NONPUBLIC SECONDARY SCHOOL IN THIS STATE OR RECEIVED THE EQUIVALENT OF A HIGH SCHOOL DIPLOMA IN THIS STATE;
(3) REGISTERS AS AN ENTERING STUDENT IN A PUBLIC INSTITUTION OF HIGHER EDUCATION IN THIS STATE NOT EARLIER THAN THE 2007 FALL SEMESTER;
(4) IN THE CASE OF AN INDIVIDUAL WHO IS NOT A PERMANENT RESIDENT, PROVIDES TO THE PUBLIC INSTITUTION OF HIGHER EDUCATION AN AFFIDAVIT STATING THAT THE INDIVIDUAL WILL FILE AN APPLICATION TO BECOME A PERMANENT RESIDENT WITHIN 30 DAYS AFTER THE INDIVIDUAL BECOMES ELIGIBLE TO DO SO; AND
(5) MAKES OR HAS MADE AN APPLICATION TO ATTEND A PUBLIC INSTITUTION OF HIGHER EDUCATION IN THIS STATE NOT LATER THAN 5 YEARS AFTER GRADUATING FROM A PUBLIC OR NONPUBLIC SECONDARY SCHOOL IN THIS STATE OR RECEIVING THE EQUIVALENT OF A HIGH SCHOOL DIPLOMA IN THIS STATE.
(B) THE COMMISSION SHALL ADOPT REGULATIONS IN ACCORDANCE WITH TITLE 10, SUBTITLE 1 OF THE STATE GOVERNMENT ARTICLE TO IMPLEMENT THE PROVISIONS OF THIS SECTION.
SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect July 1, 2007.