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Hot Button Decisions in California

October 10, 2011

Governor Jerry Brown, a California Democrat, on Saturday signed into law a bill that would allow students who lack documentation to reside legally in the United States to qualify for state financial aid. On the same day, he vetoed a bill that would once again have allowed the state's public colleges and universities to consider race and ethnicity in admissions decisions.

The decisions on the two pieces of legislation were anxiously awaited for weeks by advocates for and against the bills. The measure on undocumented students represents a major victory for advocates for this group, who now see the most populous state granting a full range of rights (at least those within the ability of a state to grant) to these students, many of whom have limited financial means.

The measure on affirmative action in college admissions shows how difficult it is to reverse or even mitigate the impact of state bans on the consideration of race and ethnicity. Brown favors such consideration and opposes California's ban, but he said that legislation could not reverse the ban, and that the bill would only have led to more litigation.

DREAM Come True

The bill on the undocumented students was a state DREAM Act (for "Development, Relief and Education for Alien Minors"). The federal DREAM act once had bipartisan support and is backed by President Obama, but has been blocked by Congressional Republicans. That legislation would create a path to citizenship for such students who were educated in the United States and who were brought to the U.S. by their parents at young ages. State versions of DREAM have given various rights to these students, from attending colleges and paying in-state rates (already provided in California) to providing state student aid, as the new legislation will do.

Giving undocumented students access to state student aid is seen as particularly important, by advocates for such students, for a number of reasons. Many have very low income levels (because they cannot legally hold jobs), and they are ineligible for federal aid. So state aid, combined with access to in-state tuition rates, can make a big difference in their ability to enroll. The bill would cover only those who graduated from a California high school and who affirm that they are taking all possible steps to legalize their immigration status.

Brown, in a statement about his decision to sign the bill, estimated that about 2,500 students would become eligible for Cal Grants, at a cost of $14.5 million -- or only 1 percent of the $1.4 billion the state provides for the program. "Going to college is a dream that promises intellectual excitement and creative thinking. The Dream Act benefits us all by giving top students a chance to improve their lives and the lives of all of us," the governor wrote.

The campaign to win state student aid for undocumented students has been a long one -- which was set back twice by vetoes by then-Governor Arnold Schwarzenegger, a Republican, of previous versions of the legislation. Schwarzenegger argued that, in a time of financial shortfalls, state funds should be saved for those who are living legally in the United States.

Similar arguments were made this year by Republicans, who opposed the legislation and are vowing to seek a state referendum to invalidate the new law.

One of the leading critics of the law is Tim Donnelly, a Republican member of the State Assembly. In an op-ed in The Daily Californian, he called the bill "a cruel hoax" because anyone who graduates from a state university with the aid will still be unable to work. Further, he charged that it will take money away from legal residents, and will encourage more undocumented people to move to California.

"By creating a new entitlement for those who are in the country illegally, we are engraving an invitation to those who have not yet come ­— what are you waiting for? Not only do we offer a K-12 education, a myriad of welfare programs and in-state tuition, but now we will tax the citizens of California to provide additional financial aid for your child’s college education. In the end, though, the dreamlike promises still fall short," he wrote.

Many public higher education leaders, however, have spoken out in favor of the law, arguing that it is unfair to blame undocumented students for California's budget woes, and that the state is better off with them advancing their educations. Robert Birgeneau, chancellor of the University of California at Berkeley, testified at a legislative hearing this year that these students show "tremendous initiative and courage,” but "are carrying burdens far beyond what we expect of other students.”

Kent Wong, director of the University of California at Los Angeles Center for Labor Research and Education, said that the governor's decision to sign the bill was "a huge breakthrough" for immigrant youth. He said that there are high schools in Los Angeles where 30 percent of students are undocumented, and that the state loses by failing to make it possible for these students to go to college.

Wong said that the idea being put forth by Republicans that the student aid will attract more people to move to California without the legal right to do so was without basis. He said that extensive studies have found two key reasons people move to a specific location: family reunification and jobs. "This is not going to have an impact on migration patterns," he said.

However, Wong said he would not be surprised if public colleges see an increase in the numbers of undocumented students (already educated in California high schools) who enroll. "A lot of these students have felt they couldn't afford college, and this will encourage more of them, and that's a very good thing," he said.

From a logistical standpoint, the California Student Aid Commission has some adjustments to make for the newly eligible students, but can handle the change (and welcomes the legislation), said Diana Fuentes-Michel, its executive director. Currently students must fill out the Free Application for Federal Student Aid (known as the FAFSA), and most students without legal residency status would not want to fill out such a form. Fuentes-Michel said that the commission will develop a state form "that mirrors FAFSA" but does not involve reporting to federal agencies. In addition, the commission will work with campus officials on any income verification questions that may be more difficult for students in families without legal status.

Separation of Powers

The bill to authorize public colleges to consider applicants' race and ethnicity set off debates on affirmative action, but its fate was decided on the issue of the legal role of the legislative and judicial branches. The bill would have authorized campuses of the University of California and the California State University to consider race and ethnicity to the maximum extent permitted by federal court rulings. Since passage of a voter referendum (known as Proposition 209) in 1996, the California Constitution has barred such consideration, and that ban has remained in effect even as the U.S. Supreme Court has affirmed that public colleges may in some circumstances consider race and ethnicity.

The Supreme Court decision did not require public colleges and universities to do so, and separate legal challenges continue against Proposition 209. In his veto message, Brown affirmed his opposition to Proposition 209, but said that legislation was not the proper way to change it.

"Our constitutional system of separation of powers requires that the courts -- not the Legislature -- determine the limits of Proposition 209," he wrote. He added that signing the bill into law would have only "encourage[d] the 209 advocates to file more costly and confusing lawsuits." (Supporters of Proposition 209 had in fact stated that they would have gone to court had Brown signed the bill.)

At various points in the build-up to Brown's decision, the bill set off broad debates over affirmative action. As part of the campaign against the law, the College Republicans at Berkeley last month held an "Increase Diversity Bake Sale" at which prices varied by race and gender. Many other students at Berkeley were outraged -- and the various sides argued for or against the consideration of race and ethnicity in admissions decisions.

But while the College Republicans opposed both the bill and the consideration of race, many who spoke out against the former were actually in favor of the latter. Their logic was generally that embraced by the governor.

An editorial in The Los Angeles Times said: "Much as we would like to see Proposition 209 repealed, the will of the people cannot be undone by a backdoor act of the Legislature. If Californians are unhappy with the effects of Proposition 209, they should go back to the polls and vote to re-legalize affirmative action or find other legitimate ways of encouraging diversity and fairness in public institutions.... Historically underrepresented groups -- mainly, African American and Latino students -- should have a better chance at the affordable higher education that they were long denied.... We understand the frustration of the initiative's opponents, after multiple losses in court. Yet as a matter of principle, we also object to flouting the will of the voters who placed the measure into the state Constitution."

 

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