Rico'sWorld Times

I feel pressed to write a story in a news article format since this report is one that would not currently make headlines but must be told.  That's because this is a story about inaction and how inaction from supposed leaders has caused pain to immigrant students locally.

MISSOURI STUDENTS STILL UNNECESSARILY BANNED FROM IN-STATE TUITION DESPITE DACA APPROVAL AND LAW ON THEIR SIDE

   Three plus years into DACA and Missouri has gone backwards as immigrant students pay the price

In the fall of 2013, Missouri Public Colleges and Universities joined many other states in offering in-state tuition rates to students with Deferred Action for Childhood Arrivals (DACA).  DACA has afforded hundreds of thousands of immigrant youth protection from deportation and lawful presence in the United States.  Nationwide, DACA has been a win for students as the program has been successful since its inception in July of 2012 by expanding economic and educational opportunities for young immigrants.  

Missouri, however, went backwards this school year by notifying DACA students, days before the semester was set to begin, that they would be charged international rates.  At the University of Missouri-Kansas City, for example, the difference between in-state and international rates is $438.70 per credit hour, which could add up to nearly a $14,000 per year increase for a full time student.  This sudden financial bomb, plus the fact that DACA students are ineligible for financial aid, caused Missouri DACA students to seek alternative educational choices in Kansas, enroll at Missouri community colleges, or drop out.  But the key question is whether Missouri public colleges and universities were required to charge international rates?   The answer is "no."  

Beginning in August, the University of Missouri System Curators and the four MU Chancellors (UMKC, UM, UMSL, MO S&T) that comprise the UM System started billing its DACA students at international rates due to the passage of HB 3, which was signed into law by Governor Jay Nixon on May 8, 2015.  The key language causing the tuition increase is located in the preamble of HB 3: 

"...no funds shall be expended at public institutions of higher education that offer a tuition rate to any student with an unlawful immigration status in the United States that is less than the tuition rate charged to international students, and further provided that no scholarship funds shall be expended on behalf of students with an unlawful immigration status in the United States."

Game over, right?  Language in the title or preamble is in the bill, and since bills are enforceable...if the UM institutions don't enforce the bill they can lose their funding right?

 Yep, its in there in between the solid bars within the preamble!

If it is as the UM System interprets, then they are flying in the face of the Missouri Governor, the Missouri Department of Higher Education, the Missouri Constitution, and the Missouri courts.  

Missouri's Governor Jay Nixon has proclaimed, since his signage of HB 3, that the language is not enforceable. In July, Governor Nixon's press secretary stated: "The governor has been quite clear - the language in House Bill 3 is not legally binding nor is it enforceable.  Denying [DACA students] the opportunity to receive an affordable college education is not fair, nor is it consistent with current state law."  On July 23rd, the Missouri Department of Higher Education Commissioner David Russel also weighed in, stating that language in the title or preamble of an appropriations bill "does not appear as legally binding language in the body of HB 3 or elsewhere in statute...and does not have the effect of law."

Furthermore, since at least 1899, the Missouri courts have ruled time and time again that preambles are not binding statutory authority unless the statute is ambiguous.  (See Lett v. City of St. Louis if you are a legal nerd (like me)).  Lastly, the Missouri Constitution has been clear that legislative language within an appropriations bill is also not enforceable.  This means that if you want to be punitive towards immigrants by making their educational attainment increasingly difficult, you need a completely separate legislative bill aside from an appropriations bill that simply allocates funds. Missouri did no such thing in 2015 and failed in previous years when it tried to do it through the correct legislative process.  Since "[t]he legislature may not create new and different mandates or amend current legal requirements through the appropriations process," HB 3 violates the Missouri Constitution as well. 

Thus, HB 3 is not enforceable for a multitude of legal reasons and the Chancellors or UM System Curators can point to no legally binding statutory language mandating the punitive change.  In fact, the statute that controls Missouri's public benefits still allows postsecondary education public benefits to students with lawful presence (ie. DACA students).  This statute was updated on August 28, 2015, and one would think a ban on in-state tuition for DACA students would be codified within this statute.  However, statutes "cannot be altered, amended, or affected by a phrase inserted into an appropriations bill," ie. HB 3. But no need...

The UM System and the Chancellors have met numerous times and yet come back with the same answer - that they must continue to charge DACA students at international rates per HB 3.  As UM System spokesman John Fougere stated: "We intend to follow the will of the legislature."  The decision and pain inflicted on immigrant students, at the end of the day, is a choice, not a mandate imposed by the passage of HB 3.  If the legislature sought to establish HB 3 as having the effect of law,  (beyond its intention), it needed to follow the Missouri Constitution and attempt to change the statutes through legislation.  Sadly, they employed a tactic that has proven much easier - to scare the UM System and Chancellors into enforcing unenforceable language within an appropriations bill.  

A silver lining here is that various UM institutions have offered to cover the difference between in-state and out-of-state tuition for its DACA students, and UM institutions are beginning to chatter about continuing to cover the difference come spring semester.  However, the underlying actions taken unnecessarily to impose the tuition increase in the first place are still in effect and have left the UM System and UM institutions legally and morally exposed.  The UM System and UM Chancellors still, however, have the potential to be much more courageous than they have been to this point.  It is simple really: Don't enforce the non-enforceable provisions of an appropriations bill.  If your plan is to wait until the courts make you do the right thing, then a champion of your immigrant students you are not.

Since July, Governor Nixon has promised students and advocates he would work on HB 3, but we have not heard from him since his August assurances that his staff would follow up.  Apparently, either the Governor feels he has no power to weigh in or he lacks, since at least the Missouri veto-session, the will to do so.  We have a new MU chancellor and an incoming process to select a new UM System President.  It is our obligation to see to it that this issue is a priority among the many discussions that will be had.  Lastly, all appropriations bills must be passed on a yearly basis.  Thus, the Missouri legislature must try to include this (non-enforceable) language again in next year's budget during the legislative session beginning in January and then again try the up-til-now-not-so-difficult-task of convincing the UM System to enforce it.

If you want to be part of the solution, hit me up at raymondcrico@gmail.com