WASHINGTON LEGAL FOUNDATION THE STATE OF NEW YORK OFFERING IN-STATE TUITION TO ILLEGAL ALIENS IN VIOLATION OF FEDERAL LAW

Transcription

1 U.S. DEPARTMENT OF HOMELAND SECURITY OFFICE FOR CIVIL RIGHTS AND CIVIL LIBERTIES COMPLAINT of WASHINGTON LEGAL FOUNDATION against THE STATE OF NEW YORK Concerning OFFERING IN-STATE TUITION TO ILLEGAL ALIENS IN VIOLATION OF FEDERAL LAW Daniel J. Popeo Richard A. Samp Washington Legal Foundation 2009 Massachusetts Ave., NW Washington, DC (202)

2 Officer for Civil Rights and Civil Liberties Department of Homeland Security Mail Stop #0800 Office for Civil Rights and Civil Liberties Washington, DC Dear Mr. Sutherland, Washington Legal Foundation 2009 Massachusetts Ave., NW Washington, DC The Washington Legal Foundation (WLF) hereby files a complaint against the State of New York for violating the civil rights of WLF s members, in violation of federal law. WLF requests that the Office for Civil Rights and Civil Liberties investigate the complaint and initiate appropriate enforcement action including but not limited to issuing a directive to New York State to cease further civil rights violations, withholding funding until New York brings itself into compliance, and referring this matter to the Department of Justice for appropriate enforcement action. The civil rights statute at issue is 8 U.S.C Adopted as part of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ( IIRIRA ), Pub. L. No , 110 Stat (1996), 1623 is designed to ensure that any State that offers discounted, in-state postsecondary education tuition rates to aliens not lawfully present in the United States 1 must also offer those same discounted tuition rates to all United States citizens and nationals, regardless whether they are residents of the State. In violation of 1623, New York has adopted a statute that permits illegal aliens who graduate from New York high schools after attending for at least two years to be deemed residents of New York in order to qualify for discounted tuition rates, yet does not offer the same tuition rates to U.S. citizens and nationals who live outside New York. As the arm of the federal government charged with enforcing IIRIRA, the Department of Homeland Security should take immediate action to end New York s flagrant violation of the terms of the statute. As discussed more fully below, WLF is unaware of any legal doctrine suggesting that DHS either may or should stay its hand until all other potential avenues for relief have been exhausted. A recent newspaper story suggested that an unnamed senior official at DHS believes that further exhaustion is mandated; any such belief is misguided. 1 Such aliens are referred to herein as illegal aliens.

3 Page 2 I. Interests of WLF The Washington Legal Foundation is a public interest law and policy center based in Washington, D.C., with members and supporters in all 50 States. WLF devotes a significant portion of its resources to protecting the constitutional and civil rights of American citizens and aliens lawfully present in this country. See, e.g., Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), cert. denied, 514 U.S (1995) (successful challenge to university s denial of scholarship benefits to Hispanic student on account of race); Washington Legal Found. v. Texas Equal Access to Justice Found., 270 F.3d 180 (5th Cir. 2001), vacated and remanded, 538 U.S. 942 (2003) (Fifth Amendment challenge to Texas s uncompensated confiscation of private property). WLF also regularly litigates in support of efforts to enforce the nation s immigration laws and to ensure that public funds are used solely for the benefit of those lawfully present in this country. See, e.g., Ambros-Marcial v. United States, 377 F. Supp. 2d 767 (D. Ariz. 2005) (opposing efforts to impose tort liability on U.S. for failing to install water stations in Arizona desert for benefit of aliens crossing into this country); Friendly House v. Napolitano, F.3d, 2005 U.S. App. LEXIS (9th Cir. 2005) (representing intervenors seeking to uphold Arizona s Proposition 200). On August 9, 2005, WLF filed a complaint with the Office for Civil Rights against Texas, challenging Texas s similar violations of WLF s members include many United States citizens who are not New York residents and who attend or are interested in attending (or whose dependent children attend or are interested in attending) government-run postsecondary education institutions within the State of New York. Those members have an interest in not being discriminated against, in violation of federal law, with respect to tuition charged by such institutions. II. The Role of DHS and the Office for Civil Rights and Civil Liberties The Department of Homeland Security (DHS) is charged with enforcing numerous federal laws relating to immigration, including IIRIRA. The DHS enabling statute includes a provision establishing an Officer for Civil Rights and Civil Liberties, whose responsibilities include: [o]versee[ing] compliance with constitutional, statutory, regulatory, policy, and other requirements relating to civil rights and civil liberties of individuals affected by the programs and activities of the Department;... and investigat[ing] complaints and information indicating possible abuses of civil rights or civil liberties, unless the Inspector General of the Department determines that any such complaint or information should be investigated by the Inspector General.

4 Page 3 6 U.S.C. 345(a)(4) & (6). That statutory mandate indicates that the Office for Civil Rights and Civil Liberties (the Office ) is the appropriate body within DHS to investigate WLF s complaint. The complaint charges that the State of New York is violating the civil rights of numerous individuals whose rights are protected by a statute (8 U.S.C. 1623) that falls within DHS s purview. Also, WLF s complaint is not one that is more appropriately investigated by DHS s Inspector General, because it does not allege that anyone within DHS is violating If you and/or others within DHS nonetheless conclude that this complaint should be handled by some other entity within DHS, we ask that you transfer the complaint to that entity as soon as possible and immediately inform WLF of that transfer. The allegations contained in this complaint are serious and indicate widespread civil rights violations within the State of New York; moreover, one federal court has indicated that only the federal government is empowered to remedy the violations. Day v. Sebelius, 376 F. Supp. 2d 1022 (D. Kan. 2005). Accordingly, it is crucial that the Office (or another appropriate body within DHS) undertake and complete an investigation of New York s violations at the earliest possible time. III. Section 1623 Section 1623 provides in pertinent part as follows: 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. The statute, adopted in 1996 as part of IIRIRA, could not be clearer that a State is not permitted to treat non-residents who are either United States citizens or nationals worse, with respect to postsecondary education benefits, than it treats illegal aliens who are physically present in the State. Section 1623 includes only one significant qualifier: the prohibition on discrimination against non-resident citizens and nationals is limited to discrimination on the basis of residence. Section 1623 does not prohibit a State from awarding postsecondary education benefits to an illegal alien, while denying similar benefits to non-resident citizens and nationals, where the basis for doing so is totally unrelated to residency. Thus, for example, 1623 does not prohibit the State University of New York at Albany from offering basketball scholarships to athletically talented illegal aliens without offering similar

5 Page 4 scholarships to less athletically talented non-resident citizens and nationals. But a State may not favor an illegal alien in the award of benefits if the favoritism is in any way related to the illegal alien s physical presence within the State. IV. New York Statute Discriminating Against Non-Resident Citizens and Nationals Notwithstanding 1623, the State of New York in 2002 adopted a statute that has the intent and effect of discriminating against non-resident citizens and nationals in the award of postsecondary education benefits. The statute was signed into law by the Governor of New York on August 6, See 2001 NY S.B. 7784; L 2002, Chapter 327. The statute amended three provisions of the New York Education Law. First, it amended existing law that authorized State University of New York trustees to issue regulations concerning tuition charges, by adding the following provision: Such regulations shall further provide that the payment of tuition and fees by any student who is not a resident of New York state, other than a nonimmigrant alien within the meaning of paragraph (15) of subsection (a) of section 1101 of title 8 of the United States Code, shall be paid at a rate or charge no greater than that imposed for students who are residents of the state if such student: (i) attended an approved New York high school for two or more years, graduated from an approved New York high school and applied for attendance at an institution or educational unit of the state university within five years of receiving a New York state high school diploma; or (ii) attended an approved New York state program for general equivalency diploma exam preparation, received a general equivalency diploma issued within New York state and applied for attendance at an institution or educational unit of the state university within five years of receiving a general equivalency diploma issued within New York state; or (iii) was enrolled in an institution or educational unit of the state university in the fall semester or quarter of the two thousand one two thousand two academic year and was authorized by such institution or educational unit to pay tuition at the rate or charge imposed for students who are residents of the state.

6 Page 5 A student without lawful immigration status shall also be required to file an affidavit with such institution or educational unit stating that the student has filed an application to legalize his or her immigration status, or will file such an application as soon as he or she is eligible to do so. N.Y. Education Law 355(2)(h)(8). Second, the 2002 statute amended the law governing conduct of the trustees of the City University of New York, by adding the following provision, containing language virtually identical to the language of 355(2)(h)(8): The trustees [of the City University of New York] shall further provide that the payment of tuition and fees by any student who is not a resident of New York state, other than a non-immigrant alien within the meaning of paragraph (15) of subsection (a) of section 1101 of title 8 of the United States Code, shall be paid at a rate or charge no greater than that imposed for students who are residents of the state if such student: (i) attended an approved New York high school for two or more years, graduated from an approved New York high school and applied for attendance at an institution or educational unit of the city university within five years of receiving a New York state high school diploma; or (ii) attended an approved New York state program for general equivalency diploma exam preparation, received a general equivalency diploma issued within New York state and applied for attendance at an institution or educational unit of the city university within five years of receiving a general equivalency diploma issued within New York state; or (iii) was enrolled in an institution or educational unit of the city university in the fall semester or quarter of the two thousand one two thousand two academic year and was authorized by such institution or educational unit to pay tuition at the rate or charge imposed for students who are residents of the state. A student without lawful immigration status shall also be required to file an affidavit with such institution or educational unit stating that the student has filed an application to legalize his or her immigration status, or will file such an

7 Page 6 application as soon as he or she is eligible to do so. N.Y. Education Law 6206(7)(a). Third, it amended the definition of Resident, as used in Article 126 of the New York Education Law (entitled, Community Colleges and State-Aided Four-Year Colleges ), by adding the following language to that definition: [P]rovided, however that this term [i.e., Resident ] shall include any student who is not a resident of New York state, other than a non-immigrant alien within the meaning of paragraph (15) of subsection (a) of section 1101 of title 8 of the United States Code, if such student: (i) attended an approved New York high school for two or more years, graduated from an approved New York high school and applied for attendance at an institution or educational unit of the state university within five years of receiving a New York state high school diploma; or (ii) attended an approved New York state program for general equivalency diploma exam preparation, received a general equivalency diploma issued within New York state and applied for attendance at an institution or educational unit of the state university within five years of receiving a general equivalency diploma issued within New York state; or (iii) was enrolled in an institution or educational unit of the state university in the fall semester or quarter of the two thousand one two thousand two academic year and was authorized by such institution or educational unit to pay tuition at the rate or charge imposed for students who are residents of the state. Provided, further, that a student without lawful immigration status shall also be required to file an affidavit with such institution or educational unit stating that the student has filed an application to legalize his or her immigration status, or will file such an application as soon as he or she is eligible to do so. N.Y. Education Law 6301(5). The intent and effect of these three new provisions was to declare illegal aliens living

8 Page 7 and being educated in New York eligible for reduced in-state tuition rates at New York State and New York City postsecondary education institutions. At the same time, New York law has continued to make it exceedingly difficult for citizens and nationals living outside the State at the time of college admission ever to qualify for the reduced in-state tuition rates. For example, regulations governing tuition at the various units of the State University of New York make clear that such individuals cannot qualify for reduced tuition rates by demonstrating mere physical presence within the State following commencement of their studies; rather, to demonstrate that they are residents for purposes of obtaining reduced tuition rates, they also must demonstrate domicile i.e., that they have established a permanent home within New York state: Residence. A person whose domicile has been in the State of New York for a period of at least one year immediately preceding the time of registration for any period of attendance shall be a New York resident for the purpose of determining the tuition rate payable for such period. All other persons shall be presumed to be out-of-state residents for such purpose, unless domiciliary status is demonstrated in accordance with guidelines adopted by the Chancellor or designee. 8 N.Y.C.R.R (a)(6) (emphasis added). The referenced guidelines impose strict barriers against students who wish to demonstrate that they are New York domiciliaries if they went to high school outside New York. For example, the domicile of an unemancipated student is deemed to be that of his or her parents, regardless of the length of the student s physical presence in New York. The difference between tuition charged to New York residents and out-of-state residents is nearly $15,000 at some SUNY schools. V. New York Is Violating 1623 By Discriminating Against Non-Resident Citizens and Nationals. As a result of changes in the New York Education Law adopted in 2002 pursuant to Chapter 327, numerous illegal aliens are paying in-state rates to attend New York State and City postsecondary education institutions. As a result of other provisions of New York law, U.S. citizens and nationals who are not permanent residents of New York, or who are dependents of citizens or nationals who are not permanent residents of New York, are required to pay higher, out-of-state tuition rates in order to attend those same postsecondary education institutions. Accordingly, there can be no serious dispute that New York, by enforcing the terms of Chapter 327, is discriminating against non-resident citizens and nationals in violation

9 Page 8 of Section 1623 prohibits such discrimination whenever illegal aliens are made eligible for a postsecondary education benefit on the basis of residence within a State. Reduced college tuition clearly qualifies as a postsecondary education benefit. Moreover, New York s discrimination is on the basis of residence within the State. Indeed, New York Education Law 6301(5) could not be plainer that illegal aliens who reside in the State and who graduated from a New York high school should be deemed Resident[s] of New York, regardless that their lack of legal immigration status precludes them from being deemed New York domiciliaries. 2 In contrast, U.S. citizens who are not New York domiciliaries are denied similar Resident status, even when they are physically present in the State. Nor can New York evade the strictures of 1623 by avoiding all mention of the word resident as it has done in New York Education Law 355(2)(h)(8) and 6206(7)(a). In point of fact, New York legislators apparently drafted the 2002 statute with any eye toward evading 1623; some legislators argued that a reviewing court would not determine that a law discriminates in favor of illegal aliens on the basis of residence within New York if it granted reduced tuition to illegal aliens on the basis of graduation from (and two-year attendance at) a New York high school. The argument was that discrimination against nonresident citizens and nationals on the basis of their not having attended and graduated from a New York high school is not equivalent to discriminating against them on the basis of [non- ]residence. 3 That argument is without merit. Section 1623 prohibits a State from 2 The only aliens that cannot qualify as Resident[s] under 6301(5) are those deemed non-immigrant aliens within the meaning of 8 U.S.C. 1101(a)(15). But that category of aliens encompasses only a small fraction of the aliens present within the United States, and generally does not include illegal aliens. Among those included within the definition of non-immigrant aliens are temporary visitors to this country, aliens who enter the United States for the purpose of attending school, and representatives of foreign governments. 3 Advocates for granting reduced postsecondary education tuition rates to illegal aliens have regularly advanced arguments along those lines for allowing states to evade See, e.g., Jessica Salsbury, Comment: Evading Residence: Undocumented Students, Higher Education, and the States, 53 AM. U. L. REV. 459, (2003). Nonetheless, such advocates generally have focused their energies on (to date, unsuccessful) efforts to repeal 1623, thereby tacitly conceding that 1623 does, indeed, prohibit states from extending instate tuition rates to illegal aliens if they do not simultaneously extend those same benefits to

10 Page 9 discriminating in favor of illegal aliens on the basis of [their] residence within [the] State, and nothing in the statute suggests that the prohibition applies only if the State (as 6301(5) does) uses the word resident in its discriminatory statute. Rather, the clear import of 1623 is that it applies to any eligibility criterion that is based on residence regardless of what verbal formulas the State may employ. Because, for example, graduation from a high school located within the State is a close proxy for physical presence within the State, 1623 requires a State that offers in-state college tuition rates to illegal aliens that have graduated from a high school within the State to offer the same rates to non-resident citizens and nationals. Moreover, the history leading up to adoption of New York s 2002 statute makes absolutely clear that New York adopted the statute with the intended purpose of extending instate tuition rates to illegal aliens residing within the State, without simultaneously extending those rates to non-resident citizens and nationals. For nearly a decade before 1996, SUNY and CUNY had in place a policy that permitted illegal aliens living in New York to receive post-secondary education at in-state tuition rates. In response to Congress s adoption of 1623 in 1996, SUNY changed its policy in June 1998 to conform to federal law. Following the September 11, 2001 terrorist attacks in New York City, CUNY undertook a re-evaluation of its in-state tuition policy. That re-evaluation led to a November 2001 decision to change its policy; CUNY determined that it must begin charging higher, out-of-state tuition rates to illegal aliens in order to comply with the 1996 federal law. That determination led to an outcry by immigration rights activists who charged that it was unfair to force illegal aliens living in New York to pay higher tuition that others living in the state. After a court challenge to the new policy proved unsuccessful, immigration rights activists brought their case to the State legislature. See Sara Hebel, CUNY Acted Lawfully in Raising Tuition Paid by Illegal Immigrants, Judge Rules, Chron. of Higher Educ. (March 1, 2002) at 22. At no time did supporters of the new New York legislation state that they were concerned about discrimination against graduates of New York high schools (or against those who received general equivalency diplomas issued within New York). Rather, their sole stated objective was to ensure that illegal immigrants living within New York would once again be offered in-state higher education tuition rates. For example, New York Governor George Pataki, in expressing his support for what would become Chapter 327, stated: New York has been a beacon of freedom and opportunity for generations, and those who have come to our shores have made tremendous contributions to our all non-resident citizens and nationals. Id.

11 Page 10 state and nation. This legislation would reinforce New York s proud legacy as a bastion of hope and opportunity by providing access to high-quality, affordable higher education for hard-working immigrants. Quoted in Sara Hebel, N.Y. Governor Backs Plan to Help Some Illegal Immigrants, Chron. of Higher Educ. (May 3, 2002) at 26. New York City Council member Charles Barron, at a June 24, 2002 press conference, stated unequivocally that the intent of the proposed law was to assist illegal aliens: These undocumented students, once they graduate, contribute immeasurably to our economy. There is overwhelming support for this measure in the council. We voted 47-4 in favor of this issue. Now the governor should do the same. Herb Boyd, In-state Tuition Demanded for Immigrants, New York Amsterdam News (June 26, 2002) at 37. Matthew Goldstein, chancellor of CUNY, said, [Illegal aliens] need an education to continue their great contribution to our society. And the economy requires it. They must not be left behind. Id. Sponsors of the legislation that eventually was adopted could not have been plainer that their sole aim was to aid all those (including illegal aliens living in New York) whom they viewed as New Yorkers, not to aid those who were living elsewhere (e.g., New Jersey or Connecticut) but who happened to have graduated from New York high schools: A bill allowing undocumented immigrants living in New York to pay in-state tuition to attend state and city colleges narrowly passed the Assembly yesterday and is expected to be signed into law by the governor. It further establishes our state commitment to having access to higher education for all New Yorkers, said Assemb. Adriano Espaillat (D-Manhattan), the sponsor of the bill. Mae M. Cheng, Tuition Bill Passed, Newsday (June 26, 2002) at A23 (emphasis added). Accordingly, there cannot be any serious dispute that Chapter 327 had both the effect and intent of offering reduced tuition rates to illegal aliens based on their residence within New York State. In sum, by denying in-state college tuition rates to non-resident United States citizens and nationals, including many members of WLF, New York is violating their civil rights, in clear violation of WLF calls upon the Office for Civil Rights and Civil Liberties to take immediate action to bring an end to these violations.

12 Page 11 VI. Immediate Action by This Office Is Particularly Warranted Due to the Absence of Other Remedies Available to Victims, and Because of the Widespread Violations of WLF is bringing this matter to the attention of the Office for Civil Rights and Civil Liberties because all other avenues for relief have been denied. In particular, an effort by private individuals to enforce 1623 in the federal courts has been rebuffed on the grounds that 1623 does not create a private right of action by individuals injured by violations of the statute. Accordingly, unless civil rights created by Congress are to go unenforced, it is crucial that DHS the federal agency charged with enforcing IIRIRA 4 exercise its authority to bring New York and other states into compliance with the law. The private suit to enforce 1623 was filed in federal district court in Kansas by plaintiffs enrolled at one of the public universities in the State of Kansas and who were denied in-state tuition rates. Day v. Sebelius, No JAR (D. Kan.). Kansas is one of nine states that grant in-state tuition rates to illegal aliens who graduated from high school within the State, yet deny similar rates to non-resident citizens and nationals. On July 5, 2005, the district court dismissed the plaintiffs 1623 claims against Kansas higher education officials, ruling that 1623 does not create a private right of action by individuals injured as a result of violations of the statute. Id., 376 F. Supp. 2d at, 2005 U.S. Dist. LEXIS at *30 - *38 (D. Kan. 2005). Rather, the court held, Congress intended 1623 to be enforced solely by the Department of Homeland Security, noting that Congress specifically designated the Secretary of Homeland Security as the individual in charge of enforcing immigration laws. Id. at *38. 5 Because the only court to address the issue has ruled that DHS alone is empowered to enforce 1623, it is crucial that the Office step forward immediately to ensure that New York does not continue to violate the civil rights of WLF s members and other U.S. 4 See 8 U.S.C. 1103(a)(1): The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers... 5 The plaintiffs have appealed from dismissal of their 1623 claims. That appeal is pending before the U.S. Court of Appeals for the Tenth Circuit.

13 Page 12 citizens and nationals who are not residents of New York. Immediate action by the Office is also warranted because of the widespread nature of violations of In addition to New York, eight other States have adopted laws that discriminate in a similar fashion against non-resident citizens and nationals: Texas, California, Utah, Illinois, Washington, Oklahoma, Kansas, and most recently, New Mexico. Unless DHS steps forward and adopts measures designed to enforce 1623, immigration-rights groups may be emboldened to encourage yet other states to flout federal law. Reasonable people can disagree on the issue of whether States should favor illegal aliens over non-resident U.S. citizens in the award of in-state tuition rates. But Congress has already decided the issue: in adopting IIRIRA, it determined that no such favoritism is permissible. There can be no doubt that that decision preempts any contrary decisions at the State level. See Rebecca Rhymer, Note: Taking Back the Power: Federal vs. State Regulation on Postsecondary Education Benefits for Illegal Immigrants, 44 WASHBURN L.J. 603 (2005). It is incumbent upon DHS to take steps to ensure that the will of Congress is enforced. VII. Exhaustion of Remedies The federal law that mandates investigations of civil rights complaints by the Office for Civil Rights and Civil Liberties (6 U.S.C. 345(a)) says nothing to suggest that complainants must exhaust other remedies before bringing complaints to the Office. Nor, as explained above, is any alternative remedy readily apparent to WLF. Accordingly, WLF attorneys were somewhat disconcerted by a September 5, 2005 article that appeared in the San Antonio Express-News regarding a similar complaint that WLF filed with the Office on August 9, 2005 against the State of Texas. The article (copy attached) quoted an unnamed DHS official, who requested anonymity, as follows: The Homeland Security Department said it received the complaint about Texas from the Washington Legal Foundation and was reviewing it. But a department official, who requested anonymity, went further, noting that the department may not act on the request because the foundation has not exhausted all other legal avenues. Karen Adler and Hernan Rozemberg, Migrant Tuition Break Blasted, San Antonio Express News (Sept. 5, 2005). If DHS officials believe that other legal avenues are available to WLF, we request that you immediately inform us of those avenues so that we can pursue them. Our

14 Page 13 understanding of federal law is that DHS is the federal agency designated to enforce the provisions of But if you believe that some other federal agency also possesses enforcement authority, we would like to know so that we could bring our concerns to that agency as well. If the anonymous DHS official s reference to other legal avenues is to a suit in federal court against Texas and/or New York for violating 1623, I am pleased to learn that DHS has made a determination that 1623 is privately enforceable. As noted above, a federal district court in Kansas has ruled otherwise, and that ruling is being appealed. If, as the quoted comment may indicate, DHS disagrees with that ruling, WLF requests that DHS seek permission from the U.S. Solicitor General to file an amicus curiae brief in support of the appellants in the Kansas case that is now before the U.S. Court of Appeals for the Tenth Circuit; the Court is likely to give great weight to the considered views of the agency charged with administering a federal statute. But even if DHS is correct that there are other legal avenues available for WLF to pursue, we do not understand your comment that DHS may not act on [WLF s] request because the foundation has not exhausted all other legal avenues. We are unaware of any statutory authority that would permit the Office, contrary to 6 U.S.C. 345(a)(6) s mandate, to choose not to investigate complaints and information regarding possible civil rights violations until other avenues for relief are exhausted. Nothing within the well-established legal doctrine of exhaustion of remedies would support such a failure to act. To the contrary, exhaustion requirements are virtually always imposed for the purpose of requiring potential litigants to take their complaints to a competent administrative agency before filing suit in court. They are never imposed under the opposite set of circumstances that the anonymous DHS spokesperson may have had in mind: requiring a complainant to file suit in federal court (and be told that (s)he lacks a private right of action) before bringing the complaint before the federal agency charged with administering the civil rights statute at issue. Accordingly, failure to "exhaust[] all other legal avenues" is not a legally valid basis for a refusal by DHS to act on this complaint. VIII. Conclusion The Office for Civil Rights and Civil Liberties should issue a determination that New York, by discriminating against nonresident citizens and nationals in the award of in-state tuition rates, is violating 1623, and write to New York education officials to demand that they bring their practices into compliance with federal law. New York should be free to comply by either: (1) extending in-state tuition rates to all U.S. citizens and nationals, without regard to State of residence; or (2) ceasing to provide in-state tuition rates to illegal aliens on the basis of residency. If New York does not agree to comply, the Office and DHS should take whatever additional steps are necessary to obtain such compliance including

15 Page 14 withholding DHS funds otherwise payable to New York and referring this matter to the U.S. Department of Justice to file suit seeking injunctive relief as well as monetary relief for all aggrieved nonresidents of New York. Respectfully submitted, Daniel J. Popeo Chairman and General Counsel Richard A. Samp Chief Counsel