California Community Colleges
Chancellor’s Office
1102 Q street
Sacramento, Ca 95814-6511
(916) 445-8752
http://www.cccco.edu /
L 01-20
June 29, 2001
Lynn Neault, Assistant Chancellor for Student Services
San Diego Community College District
3375 Camino del Rio South
San Diego, CA 92108-3883
Re: Legal Opinion L 01-20
Dear Ms. Neault:
I am responding to your E-mail inquiry of June 11, 2001, concerning the extent to which nonresident students can be counted for purposes of claiming state apportionment in noncredit courses. Specifically, you asked whether undocumented students can be counted for apportionment purposes in either credit or noncredit courses. You also asked whether nonresidents can be counted for apportionment purposes in noncredit distance education courses.
Let me first dispose of the question of how undocumented students are treated for purposes of apportionment when they take credit courses. California Education Code section 76140 establishes the basic requirement that community college districts charge tuition to nonresident students. (Ed. Code, § 76140(a).) Although districts may waive nonresident tuition in some limited circumstances, the general rule is that students classified as nonresidents may not be claimed for state apportionment (Ed. Code, § 76140(c).)[1] Education Code section 68062(h) provides that an alien may establish domicile unless precluded by the Immigration and Nationality Act. In Regents of the University of California v. Superior Court (1990, 2nd Distr.) 225 Cal.App.3d 972, the Second District Court of Appeal held that federal immigration law precludes undocumented or illegal aliens from establishing domicile in California.
In response, the Board of Governors amended Title 5, California Code of Regulations, section 54045 to state that,
"(b) An alien is precluded from establishing domicile in the United States if the alien:
(1) entered the United States illegally (undocumented aliens)."
L 01-20
Lynn Neault 4 June 29, 2001
Subdivision (c) of section 54045 then goes on to explain that,
"An alien described in paragraph (b) shall not be classified as a resident unless and until he or she has taken appropriate steps to obtain a change of status from the Immigration and Naturalization Service to a classification which does not preclude establishing domicile, and has met the requirements of Sections 54020-54024 related to physical presence and the intent to make California home for other than a temporary purpose."
Thus, it is clear that undocumented students may attend credit courses but cannot be classified as residents and must, therefore, pay nonresident tuition.[2] Since students who are classified as nonresidents generally cannot be counted for apportionment purposes (Ed. Code, § 76140(c)), those few undocumented aliens who obtain waivers or who choose to enroll and pay the nonresident tuition cannot be counted for apportionment purposes.
The situation with regard to students enrolled in noncredit courses is not quite so simple. To explain this aspect of the law, we must go back to 1976. At that time, Education Code section 5757 generally authorized community college districts to charge tuition for classes for adults (now known as noncredit courses). (Ed. Code 1959, § 5757.) Also, at that point in time, Education Code section 22855 allowed aliens to establish residency only if they were "lawfully admitted to the United States for permanent residence." (Ed. Code 1959, § 22855.) Thus, in 1976, the general rule was that undocumented aliens could not establish residency and that if they nevertheless attended noncredit courses they were required to pay tuition and could not be counted for apportionment purposes.
In 1977, the Legislature passed Assembly Bill 459 (Stats. 1977, ch. 915) which amended former Education Code section 78462 (now § 76380) and eliminated tuition for noncredit courses.[3] This allowed nonresidents to attend noncredit courses without paying tuition and districts were permitted to claim them for apportionment purposes, although former Education Code section 84521.5 (now Title 5, § 58025) required them to be accounted for separately. The question is whether the Legislature intended by eliminating tuition for noncredit courses to allow undocumented aliens (as well as lawfully admitted aliens) to be counted for apportionment purposes. We doubt that it did.
One reason for this conclusion is what the Court of Appeal said in Regents of the University of California v. Superior Court, supra, 225 Cal.App.3d 972, about the rationale underlying its decision to uphold the constitutionality of the state's policy of barring undocumented aliens from obtaining residency in California.
"The state's legitimate interests in denying resident tuition to undocumented aliens are manifest and important. We will name just a few: the state's interests in not subsidizing violations of law; in preferring to educate its own lawful residents; in avoiding enhancing the employment prospects of those to whom employment is forbidden by law; in conserving its fiscal resources for the benefit of its lawful residents; in avoiding accusations that it unlawfully harbors illegal aliens in its classrooms and dormitories; in not subsidizing the university education of those who may be deported; in avoiding discrimination against citizens of sister states and aliens lawfully present; in maintaining respect for government by not subsidizing those who break the law; and in not subsidizing the university education of students whose parents, because of the risk of deportation if detected, are less likely to pay taxes." (Id., at p. 981.)
It is true that this decision dealt only with the question of whether undocumented students could attend college without paying nonresident tuition, but if we hold that the Legislature intended to allow undocumented aliens to be counted for apportionment purposes in noncredit courses, the state would certainly be subsidizing the education of those who are undocumented. Indeed, to allow undocumented aliens to be claimed for noncredit apportionment would require us to assume that the Legislature intended to adopt a policy contradicting every rationale relied upon by the Court to uphold the ban on granting resident status to undocumented aliens.
In addition, it is difficult to reconcile claiming undocumented students for noncredit apportionment with the provisions of Title 5, section 58003.3. That section specifically allows aliens lawfully admitted to the United States for permanent residency to be claimed for state apportionment when they take courses in "English and citizenship for foreigners." When this provision was originally enacted as part of the Education Code in 1976 (see Ed. Code 1959, § 11475.2) it had the effect of permitting lawfully admitted aliens taking these particular adult education classes to be treated as residents and counted for apportionment purposes even though they had not been physically present in California for one year with the requisite intent to make California their permanent home. It remained in statute in more or less the same form until it was repealed and transferred to regulation by Senate Bill 1854 (Stats. 1990, ch. 1372).
It is not entirely clear why the Legislature felt it necessary to maintain this specific authorization for claiming apportionment for lawfully admitted aliens taking noncredit courses in English and citizenship for foreigners after it abolished the requirement for payment of tuition for all noncredit courses with the passage of AB 459 in 1977. It is logical to conclude, as does the Student Attendance Accounting Manual (Ch. 3, p. 3.05), that all lawfully admitted aliens may now be counted for apportionment purposes in all noncredit courses. After all, prior to passage of AB 459 lawfully admitted aliens could be counted for apportionment once they had completed the one year waiting period, established residency, and no longer had to pay nonresident tuition. Thus, from an attendance accounting standpoint, the effect of AB 459 was simply to eliminate this waiting period and allow lawfully admitted aliens to be immediately counted for apportionment in all noncredit courses.
However, it is quite another matter to assume, as I did in my initial response to you, that the fact that tuition is not required for noncredit courses means that undocumented aliens may be counted for apportionment purposes in such classes. As explained above, undocumented aliens could not be counted for apportionment purposes prior to the passage of AB 459 and we find nothing in the legislative history of that bill indicating that the Legislature intended to reverse that basic policy. Indeed, in a letter to then Governor Edmund Brown, Jr. dated September 7, 1977, the bill's author, Senator Joseph Montoya, characterized the change to former section 78462 as being one of several "technical corrections" made by AB 459.
I would point out that this does not mean that districts may not admit undocumented aliens to their noncredit courses. It means only that if a district admits an undocumented alien to a noncredit course, it must absorb the cost of serving that student and cannot claim him or her for apportionment purposes.
I believe the above discussion also addresses your questions concerning the attendance of nonresidents in noncredit distance education courses. As mentioned above, the current policy of the Chancellor's Office, as embodied in the Attendance Accounting Manual, is that any adult (including aliens lawfully admitted to the United States) may be claimed for apportionment purposes. (P. 3.05.) Thus, nonresidents who are either citizens or lawfully admitted aliens may be counted for apportionment when they take noncredit courses, whether in person or through distance education. Conversely, aliens who have not been lawfully admitted to the United States cannot be counted for apportionment purposes, whether they take the course in person or by distance education.
If you have further questions, please call me at (916) 327-5692.
Sincerely,
Ralph Black
General Counsel
L 01-20
RB:sj
cc: Helen Simmons, Fiscal
L 01-20
[1] The one exception to this rule is that nonresident students from neighboring states having reciprocity agreements with California may be exempted from paying tuition but can nevertheless be counted for apportionment purposes. (Ed. Code, § 76140(k).)
[2] There are some very limited circumstances in which alien students may be classified as residents even though they are incapable of establishing domicile under Title 5, section 54045. Exceptions most likely to be relevant for undocumented aliens include "(1) minors who are self-supporting; (2) minors who reside with and are supported by California residents, other than their parent for at least two years; (3) minors whose parents were California residents who moved elsewhere within the year prior to the time the minor enters the college; and (4) minors who lived out-of-state, and returned to California as adults (and have not been in the state for a year), but are dependent children (natural or adopted) of a California resident. (ECS 68070, 68072-68082, 68100)" (California Community Colleges Student Attendance Accounting Manual, Ch.2, p. 2.23 (1996).) An alien who qualifies for one of these residency exceptions may be classified as a resident and claimed for apportionment for one year even though he or she does not qualify under ECS 68062(h). However, after the one-year exception, if the student has not established residence, he or she must again be classified as a nonresident.
[3] Technically, section 76380 simply gives a list of types of noncredit courses for which tuition cannot be charged, but we have interpreted this provision to effectively preclude charging tuition for any noncredit course. (Legal Opinion M 00-41.)