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A state judge has dismissed a challenge to City University of New York’s higher tuition charges that went into effect this month for illegal immigrants, saying that the hike reflected a reasonable attempt by the university to abide by federal law. The university said that it is now charging illegal aliens out-of-state rather than in-state tuition in order to comply with a six-year-old federal statute, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). New York Supreme Court Justice William A. Wetzel on Wednesday dismissed an Article 78 proceeding challenging the tuition hike brought by the Puerto Rican Legal Defense & Education Fund on behalf of Paula R., Daniel G. and Piaget F. The plaintiffs in the case, In Matter of Paula R. v. Goldstein, 100388/02, argued that New York’s education law requires the university system’s Board of Trustees to vote before changing tuition rates. They also claimed that the federal law on which the tuition changes was based was unconstitutional. The City University of New York (CUNY) includes six community colleges, 11 senior colleges, two professional schools and a graduate center. Tuition for state residents is $1,250 per semester at the community colleges and $1,600 a semester at the four-year schools. Out-of-state residents pay $1,538 a semester at the community colleges and $3,400 a semester at the senior colleges. An estimated 2,000 students who are undocumented or illegal immigrants are expected to be affected by the change in policy. Justice Wetzel noted in his decision that from 1976 to 1989, CUNY charged illegal aliens non-resident tuition rates. (Before 1976 CUNY had no tuition fees for residents.) In 1989, then-Chancellor Joseph S. Murphy changed the policy to allow illegal aliens to pay resident tuition if they had been living in New York for 12 months or had attended a New York City high school for two semesters. After the Sept. 11 terrorist attack on the World Trade Center, CUNY’s Legal Division reviewed the laws and regulations pertaining to foreign students and determined that the system’s tuition policy was in conflict with IIRIRA. Enacted in 1996, the federal law was intended to make illegal aliens ineligible for in-state tuition at public colleges, the judge said. The students’ challenge to CUNY’s adoption of the new tuition policy failed, Justice Wetzel said, because they could not show that CUNY’s compliance with a federal statute was arbitrary or capricious. “[CUNY's] General Counsel was entitled to presume IIRIRA’s constitutionality and to urge compliance with the law. The chancellor’s decision to follow that well-reasoned opinion cannot be disturbed,” the judge said. Chancellor Matthew Goldstein’s change in the tuition policy did not require approval of the CUNY Board of Trustees, Justice Wetzel said. The new policy “is simply the continuation of the existing two-tiered (resident and non-resident) tuition structure, with a return to the pre-1989 definition of who qualifies as a resident,” he said. FEDERAL LAW The judge declined to rule on the federal law’s constitutionality, concluding that an Article 78 proceeding was not a proper forum. In an exercise of his discretion, he also denied a request to convert the Article 78 petition to a declaratory judgment for consideration of the constitutional arguments. “If petitioners believe this federal statute to be unconstitutional, and that they are injured as a result of it, they should bring a frontal assault on the statute in the federal court,” Justice Wetzel suggested. Sandra Del Valle, one of the petitioners’ attorneys, said yesterday that they would likely appeal Justice Wetzel’s decision on state law grounds, and that a decision had not yet been made whether to pursue the matter in federal court. Del Valle and Elba Galvan of the Puerto Rican Legal Defense & Education Fund, along with Cynthia Rollings, Melvin L. Wulf and Vera M. Scanlon of Beldock Levine & Hoffman, handled the case for the petitioners. Assistant Attorney General Steven L. Banks appeared for CUNY.

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