Virginia attorney general declares ‘dreamers’ eligible for in-state tuition


Virginia Attorney General Mark Herring speaks at a press conference following the state's decision to overturn its gay marriage ban on Feb. 14 in Richmond. Herring on Tuesday declared that the children of illegal immigrants can qualify for in-state tuition under existing state law. (Zach Gibson/Getty Images)

Virginia Attorney General Mark R. Herring thrust himself and his state back into the national spotlight Tuesday by announcing that some illegal immigrants who were brought to this country as children can qualify for in-state college tuition under existing law.

Herring made the announcement at Northern Virginia Community College’s Alexandria campus just a few months after the legislature declined to enact the idea and on the heels of another brazen legal move in January, when he declared that the state’s ban on gay marriage was unconstitutional.

“We should welcome these smart, talented, hard-working young people into our economy and society rather than putting a stop sign at the end of 12th grade,” Herring (D) said Tuesday to sustained applause and cheers from a room full of Latino students, immigration activists and education officials.

Announced in Spanish, Hindi, Vietnamese and Korean in addition to English, Herring’s move built upon President Obama’s decision to allow thousands of young illegal immigrants to remain in the country. Virginia students who are lawfully present in the United States as a result of Obama’s effort, which is known as the Deferred Action for Childhood Arrivals program, qualify for in-state tuition as long as they meet the state’s residency requirements, Herring said.

Herring’s decision was far more than symbolic, instantly making college more affordable for more than 8,000 young illegal immigrants. The attorney general said state universities will immediately implement the policy, which comes just in time for high school seniors trying to make college plans for the fall.

For affected students, securing an in-state discount would remove a financial hurdle that is insurmountable for many moderate-income families. At the University of Virginia, undergraduate tuition and fees in the coming school year for Virginia residents will total $12,998. For those from out of state, the charge will be $42,184.

For universities, the effect is unclear because it is not known how many of the targeted students will win admission to four-year universities. This school year, there are about 137,000 Virginians who are undergraduates at public four-year universities. That’s about 80 percent of total enrollment. Herring’s move could provoke debate about the fiscal impact on public universities.

On the political front, Herring’s announcement drew outrage from Republicans, but it could fortify his party’s already strong position with immigrant citizens and the U.S.-born children of immigrants, who make up the fastest growing slice of the electorate. The issue also could prove tricky for Republicans in Virginia. In Florida, it has divided the GOP in recent years; Gov. Rick Scott (R), who is running for reelection, has supported similar legislation.

But championing what Democrats call “tuition equity” is not without peril in a purple state where the 2016 presidential election is expected to be heavily contested — and where opinions about immigration policy remain sharply divided. Herring risks galvanizing conservatives across Virginia and in other swing states ahead of this fall’s midterm elections.

Herring himself, who squeaked by Republican rival Mark D. Obenshain to win the office last fall, hails from Loudoun County, a Washington exurb that has swung back and forth in recent elections and where immigration policy has long divided voters.

Legislative move thwarted

The attorney general’s announcement came after a legislative session in which a Republican-dominated House of Delegates and an evenly divided Senate declined to approve “Dream Act” bills, which would have accomplished through statute what Herring did Tuesday with the stroke of a pen. Similarly, his challenge to the marriage ban came as legislators made a failed bid this year to repeal it.

Herring said that in both cases, he was fulfilling his duty to ensure that the state’s policies and constitution comply with federal rules and the U.S. Constitution.

Herring’s actions have led some to call him the liberal counterpart to his activist conservative predecessor, Republican Ken Cuccinelli II. The maneuvers have allowed him to advance Democratic priorities past a divided state Capitol and sometimes overshadow Gov. Terry McAuliffe (D), whose top priority of Medicaid expansion under the Affordable Care Act is the subject of a legislative stalemate and looming government shutdown.

“The AG is using an expansive interpretation of his power to move policies forward, bypassing in some ways the assembly. And we seem to see that a little bit at the national level with Obama trying to bypass the Republican House,” said former Virginia Commonwealth University professor Bob Holsworth.

Republicans, who have been seeking stronger ties to minority groups nationally and in increasingly diverse Virginia, were cautious in reacting to the announcement. They focused most of their criticism on Herring’s perceived end run around state law, a line of attack that echoed their criticism of the attorney general’s decision not to defend the state’s constitutional ban on gay marriage.

“Our esteemed AG once again making up the law,” Del. Gregory D. Habeeb (R-Salem) tweeted.

That argument dovetails with Republican warnings that McAuliffe will try to expand Medicaid through executive order if he can’t get legislators to go along — a possibility that McAuliffe’s spokesman and Herring, as his legal adviser, have not dismissed. The standoff over Medicaid threatens to shut down the state’s government if it is not resolved before July 1.

Herring sent a letter Tuesday to the presidents of Virginia colleges and universities outlining his rationale for expanding eligibility to in-state tuition.

“Even apart from being the right thing to do, it is what the law requires,” he wrote.

Herring’s legal interpretation, that the affected students have legal “domicile” in the state, could be reversed by a future attorney general. Still, his position has suddenly opened the door to a less expensive college education for thousands.

Ambar Pinto, a 20-year-old Northern Virginia Community College student, wept uncontrollably as the impact of Herring’s words sank in. The daughter of a Bolivian construction worker and house cleaner, both still illegal, she said she had been working full time since age 16 while attending high school and dreaming of attending the University of Virginia. Last year, she won temporary legal status under Obama’s policy. Now, she will have a chance to realize her dream.

“I have been fighting so hard for so long,” she said. “It takes me one month of work to pay for one class. This will change everything.”

McAuliffe offered his full support, as did Lt. Gov. Ralph Northam (D) and the Virginia Catholic Conference, a group at odds with Herring in the marriage case.

“As I said throughout my campaign, I believe that Virginia children who were brought here at a young age, grew up here and have stayed out of trouble should absolutely have access to the same educational opportunities as everyone else,” McAuliffe said.

While Herring’s move drew condemnation from Republicans, they cast themselves as open to discussion on immigration.

“Undoubtedly, many Virginians hold sharply contrasting views on these [immigration] issues and how they should be resolved,” said a statement issued by Speaker William J. Howell (Stafford) and fellow GOP House leaders. “What is clear and not subject to debate, however, is that these issues should be considered, discussed and eventually resolved through the legislative and democratic processes, not by the unilateral actions of one individual.”

Impact on schools

Across the country, 19 states, including Maryland, have enacted some form of in-state tuition for qualified young illegal immigrants, spanning a variety of regions and political leanings. The others are: Texas, California, Utah, New York, Washington, Illinois, Kansas, New Mexico, Nebraska, Wisconsin, Connecticut, Colorado, Minnesota, New Jersey, Oregon, Hawaii, Michigan and Rhode Island.

The decision could have substantial implications for Virginia colleges and universities as they prepare for an influx of students and a reduction in what some existing students are paying.

In Virginia, more than 8,000 illegal youths, and in Maryland about 7,000, have been approved for temporary legal status under the federal policy. Nationwide, more than half a million applicants have won approval based on their age, length of time in the United States, clean criminal records and full-time enrollment in school.

Virginia Education Secretary Anne Holton said the state ultimately will benefit financially by helping these students fulfill their potential.

“We need them for the strength of our economy,” she said.

Nick Anderson contributed to this report.

Laura Vozzella covers Virginia politics for The Washington Post.
Pamela Constable covers issues related to immigration policy, immigrant communities and international figures and issues that crop up in our local and regional midst.
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