Background

     The Culberson Amendment added section 305 to HR 5647, the 2007 Labor, Health and Human Services and Education Appropriations bill.  It provides that: 

SEC. 305. None of the funds appropriated or otherwise made available in this Act to the Department of Education may be expended in contravention of section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1623).

     Similar amendments sponsored by Steve King (R-IA) have been passed by the House each of the last two years, but they have not passed the Senate or survived to final passage.  Nothing in Congress is certain, particularly in an election year where so much attention has focused on immigration issues.  But we have no reason to believe that this year's outcome will be any different from the past.  In fact, Senate opposition to the provision is likely to be stronger than before, given the Senate Judiciary Committee's adoption of the DREAM Act by a voice vote earlier this year as an amendment to the comprehensive immigration reform bill, and Senate passage of the DREAM Act as part of S 2611.  Among its provisions, the DREAM Act would repeal the same provision that the Culberson Amendment purports to enforce.  Sen. Arlen Specter (R-PA), who chairs the Senate Judiciary Committee, is also the chair of the relevant Senate Appropriations subcommittee.

     By its terms, the Culberson Amendment would apply only if there is a contravention of section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  In relevant part, section 505 provides that: 

Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident. 

     Despite the frequent repetition of statements to the contrary, the state laws that provide in-state tuition rates to eligible undocumented college students fully comply with the provisions of section 505.  The 10 states that have passed such laws since 2001 include Texas, California, Utah, New York, Oklahoma, Illinois, Kansas, Washington, New Mexico, and Nebraska.  These states provide in-state tuition rates to undocumented students who have attended high school in the state for a certain number of years and have obtained a high school degree in the state. 

     In compliance with section 505, the 10 states also provide precisely the same tuition rate to any U.S. citizen who attended school in the state for the requisite number of years and meets the other eligibility requirements, without regard to whether the citizen is a resident of the state.  In some state systems the majority of individuals benefiting from these laws are non-resident citizens .  For example, in the University of California system, three-quarters of those benefiting are U.S. citizens who are not California residents.

     In the legislative debates over these provisions, opponents always argue that these state policies would violate federal law.  But the Republican and Democratic governors and legislatures of the 10 states listed above have all disagreed.  Even more importantly, the arguments of opponents have not been accepted by any court. 

     In fact, despite their threats, opponents have rarely even attempted to bring suit.  One lawyer, Chris Kobach, has filed two lawsuits, the first in federal court in Kansas and the second in state court in California.  Perhaps it is a coincidence, but in both of these states the case was filed in the context of a congressional campaign.  In Kansas, it was the attorney, Kobach, who was running for Congress; in California, it was the father of one of the plaintiffs, Brian Bilbray.  The Kansas case was dismissed and is on appeal; the California case is in its initial stages, but there is no reason to believe that Kobach will prevail.

     Even in the unlikely event that a state or institution were found to have violated Section 505, the Culberson amendment would not have any legal effect because such a violation would not involve federal funds.  The Culberson amendment would withhold only federal funds spent in contravention of section 505.  But section 505 solely governs state practices and spending, not federal spending, and the schools and states that provide the in-state tuition rate to undocumented immigrant students do not use federal funds to do so.  Therefore, regardless of the outcome of the litigation discussed above, the U.S. Dept. of Education would not be required to withhold even a dollar of federal funds under the Culberson amendment. 

Next steps

     The Culberson Amendment passed the House Appropriations Committee by a 40-21 vote, with all Republicans and five Democrats voting in favor.  The amendment, along with the rest of the Labor, HHS, and Education Appropriations bill, now goes to the House floor.  The Senate Appropriations Committee has not yet considered its version of the Labor, HHS, and Education Appropriations bill. 

     In the likely circumstance that the Senate passes its version of the appropriations bill without any language similar to the Culberson Amendment, the difference will be worked out by a House-Senate conference committee.  As mentioned above, a provision similar to the Culberson amendment has been stricken from the House bill in conference each of the past two years.  Key Senate decision-makers on these negotiations will be Sen. Arlen Specter and Sen. Tom Harkin (D-IA), the chair and ranking member, respectively, of the Labor, Health and Human Services, Education and Related Agencies Subcommittee of the Senate Appropriations Committee.  In the House, those with most influence on this issue will likely be Ralph Regula (R-OH) and David Obey (D-WI), chair and ranking member of the counterpart House subcommittee.

     For more information, contact Josh Bernstein, NILC director of federal policy.