Senate Cmte Kills Nelson’s SB 103, Declines to Ban Undocumented Students from Campus

Senate Education surprised me this morning and killed Senate Bill 103, Senator Stace Nelson’s proposal to turn the Board of Regents and vo-tech schools into federal immigration cops and root undocumented immigrants out of its student bodies. Four members of Senate Education—Monroe, Jensen, Klumb, and Chairman Bolin—are hard-right Republicans whom one might think would sympathize with Nelson’s Trump-pettings, but this morning Klumb and Bolin sided with quasi-moderate Republicans Soholt and Solano and dangerous Democrat Heinert to send Nelson’s bill to the deathly 41st day.

While no one joined Senator Nelson to testify in favor of SB 103, opponents came from multiple directions. Board of Regents exec Mike Rush said satisfying SB 103’s mandate to “verify with the federal government pursuant to 8 U.S.C. § 1373(c) an alien’s lawful presence in the United States” would Regental staff’s authority and training and impose far too much administrative cost and delay in admissions for the meager payoff of filtering out eight undocumented students out of 36,000 now enrolled. Dr. Rush also questioned the logic of dispatching the Regents to investigate and punish the violation of one federal law but not others. Later, under questioning from Senator Alan Solano about enforcement, Rush noted that the federal government is “not terribly responsive to most of our requests” for information “in other areas,” so he is extremely concerned that efforts to get help from the federal government to enforce immigration policies would lead to “mucking up” our admission process.

Samantha Spawn of South Dakota Voices for Justice gave a nice tight three-point statement against SB 103. Spawn said SB 103 discriminates based on national origin, pre-empts the federal responsibility to enforce federal laws, and violates a principle suggested by Plyler v. Doe (1982) that all individuals have a right to equal access to public education regardless of immigration status. (Spawn acknowledged that Plyler v. Doe dealt strictly with K-12 education, but case is silent on, not exclusive of, post-secondary education on that principle.) She said federal law (8 USC 1613) already prevents unlawfully present individuals from receiving in-state tuition, grants, scholarships, or other benefits, making SB 103 superfluous. Finally, Spawn said that since Minnesota and Nebraska already allow undocumented immigrants to pay in-state tuition, any such students wanting a cheap education can hop our border, while those few who may remain will be paying full freight, helping our campuses make money and not draining our state resources.

SDEA exec Richard Kern chimed in that educators don’t test who is worthy of receiving public education. Jenae Hansen gave a quick we too from the social workers association. Sister Kathleen Bierne from the Presentation Sisters of Aberdeen offered a moral reminder that “we have a right to be educated as human beings” and suggested that allowing all comers to our campuses helps train future leaders and keep them on our side.

Senator Nelson rebutted that he consulted with the Board of Regents to craft a good bill but got no help. He said his job as a Christian is to protect his neighbors’ property from the covetousness of others. Senator Nelson said Ronald Reagan gave illegal immigrants amnesty in 1986 and later regretted doing so (that alleged “regret” appears to be an Internet myth). He asked rhetorically to what other groups (veterans?) and for what other crimes we are going to grant amnesty. Are we going to have, he pose provocatively, “a sanctuary college system?”

Under questioning from Senator Deb Soholt, Regental general counsel Guilherme Costa vigorously rejected Senator Nelson’s inflammatory rhetoric. Noting that “sanctuary” is a term in the press but not in law, Costa said, “We are not a sanctuary Regental system. We are not harboring anybody.” Costa cited U.S. v. Vargas-Cordon (2013) to explain that “harbor” means to substantially help an unlawfully present alien remain in the country and help prevent detection of that alien by authorities. The mere act of providing shelter—or, specific to the topic of SB 103, providing admission to a post-secondary institution—is not a prosecutable offense. Costa also cited 2008 guidance from Immigration and Customs Enforcement to the state of North Carolina clarifying that admission to public post-secondary institutions is not one of the benefits regulated by federal immigration law. Nor is such admission a public benefit under two 1996 immigration laws. Thus, nothing the Board of Regents does right now violates federal law.

Senator Phil Jensen circulated some claptrap from the anti-immigrant Federation for American Immigration Reform claiming that illegal immigrants cost South Dakota $37 million and insinuated that getting tough on undocumented students via SB 103 would somehow resolve South Dakota’s $33.7-million budget shortfall.

Asked by Senator Soholt to quantify the cost of undocumented students in the Regental system, Costa responded with two big caveats: the Regents have no way of knowing the legal status of any applicant, and a lack of documents does not equal illegal presence. But to answer Soholt’s question, Costa said that every student who checks something other than “U.S. citizen” and does not provide immigration documents is automatically charged higher, non-resident tuition. Those undocumented students are thus providing a net economic benefit to their campuses and communities. They aren’t taking university spaces away from South Dakotans; Costa says the Regents have excess capacity right now and can admit additional students without increasing costs to the state. Additional admissions have zero direct effect on state funding, since there is no per-student formula for funding our universities.

In committee discussion, Senator Jensen rambled something about saying that “sanctuary campuses” would be o.k. “in an altruistic, perfect world,” but we by gum can’t give non-citizens the same rights as citizens. He said the foreigners he talks to (what, all two of them?) express strong irritation at queue-jumpers who don’t follow the rules they did to enter the country.

Senator Soholt also kinda rambled, saying she agrees with Senator Monroe that we need to tackle the immigration problem but can’t vote for this bill since it singles out just one piece of the issue. Senator Soholt expressed concern for undocumented parents whose kids have been through our K-12 system and now want to continue their education. She said that even if the Regents could check a database (and Senator Nelson suggested using the E-Verify system designed for employers), SB 103 still doesn’t provide for effective enforcement.

Senator Troy Heinert substituted a motion to kill SB 103. He called the bill and the discussion around it “troubling.” He said one handout circulated to the committee claimed that illegal immigrants cost South Dakota millions in Limited English Proficiency school costs, even though 80% of the LEP kids in Heinert’s bailiwick, the Rosebud Reservation, are Native America. “They were here first!” said Heinert. “If we really want to have a conversation about illegal immigration, we can go back a couple hundred years, I’ll be glad to have that conversation.”

Heinert said SB 103 would trigger racial profiling on campus: enforcers certainly wouldn’t go looking for “the blond-haired blue-eyed kid.” Heinert said he’ll join a fight to tackle exploitative employers, but he won’t single out kids who attend our universities.

Chairman Jim Bolin closed debate with his declaration that SB103’s “juice isn’t worth the squeeze.” It affects far too few students to warrant the administrative sledgehammer Senator Nelson proposes. Bolin also said the open policies of Minnesota and Nebraska further minimize the impact of undocumented students on our campuses.

Jensen and Monroe voted to keep SB 103 alive, but Bolin, Soholt, Solano, Heinert, and Joshua Klumb voted to banish Senate Bill 103 to the 41st day.

“Congratulations,” Senator Nelson fumes in our post-committee Tweet-chat, “you have your sanctuary college.”

No, Stace, as counsel Costa said, South Dakota has no such thing. We just don’t have your unnecessary, unproductive, and unconstitutional Trumpist posing getting written into South Dakota law.