Just this morning, Senator Fred Smith (R-Johnston) petitioned Attorney General Roy Cooper (D) to review and clarify the legal standing of the November 7, 2007, memorandum that requires community colleges in North Carolina to enroll illegal immigrants. Read it here:
The Honorable Roy Cooper
North Carolina Dept of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
December 3, 2007
Dear Attorney General Cooper:
As a member of the Senate, I am requesting that you review and clarify the legal standing of a November 7, 2007, memorandum (CC 07-275) issued by the North Carolina Community College System. The memorandum aims to provide legal guidance regarding the admission of illegal aliens into our state’s community colleges and claims to be based on a 1997 advisory opinion issued by the North Carolina Attorney General’s office. While I recognize that I cannot formally request that you issue a formal opinion regarding CC 07-275, I am urging you to bring clarity to an issue that is of great concern to the people of North Carolina.
As explained below, Memorandum CC 07-275 incorrectly interprets the North Carolina Administrative Code in a manner that contradicts federal law, state law, and, even, the established policies of the community college system itself. Moreover, according to Title 8, Chapter 14, Sec. 1621, of the U.S. Code, only the North Carolina General Assembly has the authority to grant postsecondary benefits to illegal immigrants. This power does not reside with the North Carolina Community College System and cannot be mandated by means of a directive from the community college president’s office.
This policy contradicts federal laws regarding immigration and the provision of state and local benefits to nonqualified aliens:
The Immigration and Nationality Act (INA) stipulates that it is a crime to enter the United States without proper documentation (8 USC 1181). It is also a crime to encourage or induce illegal immigrants to enter the United States (8 USC 1324). Finally, it is a crime to harbor or to employ an illegal immigrant (8 USC 1324). Under Memorandum CC 07-275, the community college system of North Carolina will be flouting federal law by undertaking activities that could serve as a positive inducement to illegal immigrants to enter the United States. Moreover, insofar as the mission of the community college system is to prepare North Carolinians to enter the state’s workforce, this new policy willfully disregards the fact that it is illegal for employers to hire undocumented individuals.
Finally, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 specifically prohibits the states from appropriating state or local funds to provide postsecondary education to illegal immigrants. According to Title 8, Chapter 14, Sec. 1621, a state may only provide such benefits – which include “appropriated funds” for “postsecondary education” – to nonqualified aliens “only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.” The North Carolina General Assembly has not enacted a state law permitting nonqualified aliens to attend postsecondary institutions in North Carolina. For this reason, CC 07-275 is inconsistent with the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Contrary to claims by community college officials, Memorandum CC 07-275 is not revenue positive. According to our sources within the community college system, out-of-state tuition only accounts for 50 percent to 70 percent of total educational costs per student. Even in the event that out-of-state tuition generated revenue for an individual community college, this revenue would not fully compensate the state for the per student cost to support the community college system in its entirety. As indicated by the 2007 North Carolina Community College Fact Book (p. I-9), tuition accounts for 12.5 percent of funding for the community college system. By contrast, state and local funds comprise 82 percent of the community college budget. In other words, Memorandum CC 07-275 will require the state to allocate funds to educate illegal immigrants, which is to say that the memorandum is a violation of the Illegal Immigration Reform and Immigrant Responsibility Act.
This policy contradicts state law:
According to the North Carolina Constitution, Article I, Section 5: “Every citizen of this State owes paramount allegiance to the Constitution and government of the United States, and no law or ordinance of the State in contravention or subversion thereof can have any binding force.” Yet, as indicated above, Memorandum CC 07-275 encourages the violation of federal law by creating an inducement for illegal immigrants to come to and remain in North Carolina, as well as for employers to hire illegal immigrants.
In addition, Governor Mike Easley has stated that the memorandum issued by the community college system is “totally different” than the policy stipulated by his office’s 1997 advisory opinion. In short, this memorandum has no basis in state law.
This policy contradicts the code of ethics of the community college system itself:
According to the Code of Ethics for North Carolina Educators, educators “shall not commit … any felony under the laws of the United States or of any state” (16 NCAC 6C .0602). Yet, it is a felony to knowingly encourage or induce illegal aliens to come to or reside in the United States. It is also a violation of the law to use state and local funds for the postsecondary education of illegal immigrants, absent specific authorization by the North Carolina General Assembly.
Similarly, the codes of conduct of many of North Carolina’s community colleges specifically forbid students from violating “local, state or federal criminal law on college property” or acting as an “accessory to a violation or help[ing] someone else commit an offense” (cf. GTCC Code of Conduct). By forcing our colleges to admit illegal immigrants, the community college system is knowingly enrolling students who are in violation of federal immigration law.
While I applaud the community college system’s desire to “maintain an open-door admission policy to all applicants,” our community colleges are not above the law. By implementing the policy articulated in Memorandum CC 07-275, we are sending a message to students and employers that North Carolina will not only ignore federal immigration law, but provide encouragement and assistance to individuals who are breaking the law. Surely, this is not the lesson we want to impart through our school system.
Senator Fred Smith