“Tuition equity” bill: worst example of agency advocacy

Sen. Doug Whitsett (R-Klamath Falls)

The “tuition equity” bill passed out of the Oregon Senate last Thursday and is expected to be signed into law by Governor Kitzhaber in the near future. All sixteen Democrat and three Republican Senators voted to pass the bill. I joined ten other Republican Senators in voting no.

HB 2787-A exempts students who are not lawful permanent residents of Oregon from paying out of state tuition at Oregon’s seven universities if they meet certain criteria:

1. The student must have attended an Oregon elementary or high school for three years immediately prior to receiving a high school diploma, or prior to leaving school without receiving a diploma.
2. The student must have attended a school in any state or territory during each of the five years immediately prior to receiving a high school diploma, or leaving school prior to receiving a diploma.
3. The student must have received a high school diploma from an Oregon school no more than three years prior to initial enrollment in a state university.
4. And, the student must demonstrate intent to become a citizen or lawful permanent resident of the United States.

The bill does not establish legal residency for students who are undocumented. It does not establish admission preference for students and it does not automatically enroll the student in a university. The undocumented student must meet both the legal criteria established in the new law and must be accepted academically by the university.

Many Oregonians believe that this new law will be anything but equitable. United States’ citizens who have lived in Oregon all their life before moving out of state, are denied Oregon in-state tuition for their children. Yet an illegal alien that sneaks into Oregon searching for a job, for entitlements, to be with family or for any other reason, will be allowed in-state tuition for their children if they have lived here illegally for three or more years. Where is the equity in that equation?

On the other hand, many believe that children should not be held responsible for the sins of their parents. They believe that since the child had no choice in the decision to enter the country illegally they should be afforded the same opportunities as other Oregon resident students. No more, no less.

The equity of this bill was vigorously and well-argued from both sides of the issue. Lucid arguments can be made on either side. My voting decision was based on my concern for rewarding illegal behavior. It was further based on my deep concerns for the breach of Senate practices and processes that were inherent in this bill.

According to a PEW report, about 160,000 undocumented Hispanics were living in Oregon in 2010. PEW is working on a 2012 update of that report. PEW further estimates that Hispanics make up about three fourths of all undocumented aliens residing in Oregon and that about 85 percent of those people do not have drivers’ licenses. This data presupposes that 85 percent of that number is at least sixteen years of age.

Using those numbers we can calculate that the total number of undocumented aliens residing in Oregon is at least 210,000 adult people plus their children. This number of people would easily populate an entire city the size of the combined cities of Eugene and Springfield!

We were then asked to believe that a city the size of Eugene-Springfield would only offer up only 19 children to Oregon’s seven Universities during each of the next two years. Further, these 19 students would have a fiscal impact of no more than $168 thousand on the entire university system. Applying the same nonsensical metrics, we could calculate that the whole population of Oregon would offer up only about 240 students per year to the entire Oregon university system.

Legislative rules require that each bill have an estimate of how much it will cost for governments to implement the measure. Those cost estimates are prepared by the Legislative Fiscal Office with the aid of affected agencies.

Each year the legislative fiscal impact statements become less reliable and more useless. The fiscal reports have become little more than advocacy tools. When an agency wants legislation to move forward they can find any number of ways to minimize its fiscal impact. In the event that they do not want the bill to move forward the real and imaginary costs inherent in implementing the bill become insurmountable. The Legislative Fiscal Office is so understaffed that they have little option other than to accept most of the information the agencies provide regarding the costs of carrying out the provisions of a bill.

In my opinion, the fiscal report on HB 2787 is one of the worst  examples of that agency advocacy that I have witnessed during nearly nine years in the Oregon Senate.

The concept of tuition equity has been debated in the Oregon Legislature for at least the past ten years. The people of Oregon have been greatly divided over their support or opposition to the concept. Many of the people that we represent continue to have great deal of angst regarding “tuition equity” for undocumented alien students. A lot of folks are angry about what they perceive to be the inequity represented by this bill.

Concepts that are as controversial and divisive as this issue are at best difficult to decide and should be subject to review by the people.

An emergency clause has the specific purpose of preventing referral of the measure to the voters to decide. Never the less, our legislature has demonstrated the arrogance to attach an emergency clause to HB 2787. The bill does provide for direct review by the Oregon Supreme Court for any challenges to its constitutionality. However, that provision is of little use to those who would want to challenge the advisability, suitability and wisdom of the concept of “tuition equity”.

That is why our Oregon constitution provides the opportunity for citizens who oppose a new law to gather signatures and refer the measure to the vote of the people of Oregon. However, the constitution only provides that opportunity for new laws that take effect after the ninety first day following the day the bill becomes law. This is designed to allow adequate time to gather the signatures required for referral.

By affixing an emergency clause to HB 2787, our Legislature has knowingly and purposefully prohibited the people from exercising their constitutional right to gather signatures and to refer the controversial questions inherent in HB 2787 to the people to decide.

I have a measure drafted that I will introduce as a priority bill that would amend the Oregon Constitution to require a two thirds majority vote of both the House and the Senate in order to attach an emergency clause to a proposed law. I do not expect that the measure will pass or even receive the courtesy of a hearing. However, I do believe that it is past time for the people of Oregon to begin having the conversation regarding preserving their constitutional rights.