HELENA — A new voter-approved Montana law that requires an individual to provide proof of citizenship to receive state services does not apply to the university system, an associate commissioner for higher education said Wednesday.
The state constitution gives the Board of Regents exclusive authority to manage and control the university system, including setting policies and regulations, Kevin McRae said. The new law that requires proof of citizenship or legal residency for services infringes on that constitutional authority, he said.
He said the board is not disputing the will of the people, but the Montana Constitution clearly establishes that separation of powers.
"We view it as if the people have already spoken," McRae said. "The people have said in the ratification of the 1972 constitution that the Board of Regents is the ultimate governing authority within the university system."
The system already has checks in place that weed out most illegal immigrants who apply for enrollment, he said.
State residents must pass through a rigorous residency test in the application process, McRae said. That test is not required for out-of-state students. But since they pay much higher tuition than in-state students, the board does not believe those students actually receive a state service under the legal definition, McRae said.
"We think it would be hard for an illegal (immigrant) to slip through," he said.
Nearly 80 percent of voters in November approved the measure that requires every person who seeks any state service to prove he is a U.S. citizen or in the country legally. The initiative defines state services as employment with a state agency, issuance of a state license or permit, and unemployment or disability benefits.
It also specifically names "qualification as a student in the university system" and "student financial assistance" as services to be prohibited without proof of citizenship or legal residency.
The Republican state lawmakers who put the measure on the ballot claim illegal immigrants live on the taxpayers' dime by obtaining food stamps, unemployment benefits, disability benefits, state licenses — and aid for university students.
The Montana Immigrant Justice Alliance is leading a lawsuit challenging the new law's constitutionality. The group claims the law infringes on the right to privacy, due process and equal protection.
There are no restrictions in the law as to how to protect privacy or limit dissemination of private information, and the law does not specify how the state agencies should determine a person's status, the lawsuit claims.
"This raises a substantial possibility that many average Montanans could be wrongly denied services and be swept up by" the Department of Homeland Security, it reads.
The alliance has named the state, Gov. Steve Bullock, Attorney General Tim Fox, the Board of Regents and Higher Education Commissioner Clayton Christian as defendants.
Deputy Solicitor General Lawrence Van Dyke said in a court filing that the lawsuit's claims are "far-reaching" and that nobody can have a reasonable expectation of receiving state benefits without first demonstrating they are eligible for them.
Regents attorney Jessica Brubaker is representing Christian and the board separately from the other state defendants. She said she plans at some point to ask Judge Jeffrey Sherlock to dismiss Christian and the board as defendants.
Brian Miller, the attorney representing the Montana Immigrant Justice Alliance, said his clients agree with the regents' argument that the initiative does not apply to the university system.
Attorney general spokesman John Barnes said his office does not have a position on the board's argument.
A court hearing on the alliance's request for a preliminary injunction blocking the law is scheduled for Thursday in Helena.