On Eve Of Election, Berman Seeks To Incite Controversy Over In-State College Tuition For Immigrants

Potential 2010 gubernatorial candidate State Rep. Leo Berman (R-Tyler), notorious for his desire to repeal the 14th Amendment and his anti-immigrant legislation, has requested an opinion from Texas Attorney General Greg Abbott that would ignite anew the fires surrounding the state providing in-state college tuition for undocumented immigrants.

At issue is the DREAM Act, signed into law by Texas Governor Rick Perry in 2001, which allows Texas high school students who lack the proper citizenship papers to pay in-state tuition if they have lived in the state for at least three years, a period three times longer than that required for out-of-state students to gain in-state residency.

Berman’s opinion request could also stir up recent controversies related to the Hazelwood Act, which provides scholarships for qualifying military veterans. Previously, Texas Attorney General Greg Abbott had ruled that the Hazlewood Act did not apply to undocumented immigrants who had been members of the U.S. Armed Forces. Abbott reversed his decision and withdrew that opinion earlier this year.

Berman inquires whether or not Texas is violating the law by allowing illegal immigrants in-state tuition based upon two things.

The first is a September 16 decision by a state appeals court in California that ruled that state’s in-state tuition for immigrants law conflicts with federal law and the Equal Protection Clause of the Fourteenth Amendment.

The federal law in question, and the second tier of the basis for Berman’s request, is a provision in the Illegal Immigration Reform and Responsibility Act of 21996, authored by Texas Congressman Lamar Smith.

Section 505(a) of that act mandates that no postsecondary education benefit may be given to an illegal alien resident of the state unless a citizen is eligible for those same benefits.

There are numerous problems with Berman’s reasoning. First of all, the decision by the California appeals court sets no precedent for Texas. The decision was by a state appeals court, legally equivelant to a Texas state appeals court–not a federal district court or a federal appeals court. Second, citizens are eligible for in-state tuition benefits. In fact, they are eligible for them faster than non-citizens.

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