DENVER (Legal Newsline) - Colorado Attorney General John Suthers released a formal opinion on Tuesday on whether Colorado's state schools have the authority to create discounted tuition categories for undocumented students.
The formal opinion was in response to a question posed by the Colorado Community College System. The question resulted from an action by the Metropolitan State College of Denver to create the new tuition category for students without documentation.
"After carefully reviewing the state and federal law in this area, my office has concluded that Colorado's state-supported higher-education institutions cannot create discounted tuition categories for students who are unable to prove their lawful presence in the United States," Suthers said.
"Although federal law allows state legislatures to pass statutes affirmatively providing tuition benefits to undocumented students, the general assembly has repeatedly declined to legislate in this area."
Suthers said that federal law requires an affirmative choice by the legislature of the state to give benefits to individuals who are in the United States unlawfully. The ASSET bill represents one of the efforts by the state legislature of Colorado to satisfy the mandate.
"Just this year, the general assembly again considered a bill-the ASSET bill-intended by its sponsors to create a new discounted tuition category for undocumented students," Suthers said.
"Once again, the bill failed. The decision by Metropolitan State College of Denver to proceed on its own to create a new tuition category, undeterred by the legislature's repeated rejection of specific authorizing legislation, is simply not supported by governing law."
When a school offers discounted tuition, Suthers said, the grant must fall within the definition of a public benefit. He noted that while reasonable people can argue about the matter, the decision must be made by the legislature, not individual higher education institutions.
"The general assembly may continue to consider this issue," Suthers said. "In the meantime, however, state-supported institutions of higher education in Colorado cannot act unilaterally. Under federal law they must await a decision by the legislature. I am disappointed Metro State decided to proceed in this manner without consulting our office."