Mississippi Advisory Opinions September 07, 2007: No. 2007-00461 (September 7, 2007)

No. 2007-00461.

Dear Representative Evans:

Attorney General Jim Hood received your request for an official opinion and assigned it to me for research and response. In your letter of request, a copy of which is attached hereto and incorporated herein by reference, you cite section 37-103-7 of the Mississippi Code, which relates to certain persons not being required to pay out-of-state tuition under certain circumstances, and a previous official opinion of this office addressing requirements for the issuance of a marriage license. You then ask:

I am writing to request an opinion on whether a foreign born person less than twenty-one (21) years of age who has attended a Mississippi high school for at least four years and graduated from that high school, and whose natural parents reside in the state should be allowed to pay in-state tuition at a state supported university or community college.

In response, as cited in your letter, section 37-103-7 reads:

For purposes of determining whether a person pays out-of-state or in-state tuition for attendance at universities and community and junior colleges, the residence of a person less than twenty-one (21) years of age is that of the father, the mother or a general guardian duly appointed by a proper court in Mississippi. If a court has granted custody of the minor to one (1) parent, the residence of the minor is that of the parent who was granted custody by the court. If both parents are dead, the residence of the minor is that of the last surviving parent at the time of that parent's death, unless the minor lives with a general guardian duly appointed by a proper court of Mississippi, in which case his residence becomes that of the guardian. A student residing within the State of Mississippi who, upon registration at a Mississippi institution of higher learning or community college, presents a transcript demonstrating graduation from a Mississippi secondary school and who has been a secondary school student in Mississippi for not less than the final four (4) years of secondary school attendance shall not be required to pay out-of-state tuition. This section shall not apply to the residence of a person as it relates to residency for voter registration or voting.

(Emphasis added).

Section 37-103-23 states that all aliens are classified as nonresidents. However, this section was declared unconstitutional in Jagnadan v. Giles, 379 F. Supp. 1178 (N.D. Miss. 1974), affirmed in part on other grounds 538 F.2d 1166 (5th Cir. 1976). No statutory provision specifically addressing aliens and residency for tuition purposes is currently in effect.

We stated the following in MS AG Op., Stonecypher (Aug. 10, 2007):

While this office does not opine with regard to federal law, there are two federal statutes that we must note in order to respond to your request. The first is a provision that generally makes undocumented aliens ineligible to receive state and local benefits, unless a state affirmatively provides for such eligibility after August 22, 1996. 8 U.S.C. Sec. 1621. The second federal statute provides that aliens not lawfully present in the United States are not eligible on the basis of residence within a state for a postsecondary education benefit, unless such benefit is available to any citizen of the United States regardless of residency. 8 U.S.C. Sec. 1623. Under the Supremacy Clause of the United States Constitution, a state law which is in conflict with or interferes with a federal law, must yield to the federal law.

There has been no Mississippi statute enacted after August 22, 1996 to make undocumented aliens eligible for in-state tuition. Residency has been and remains the key determinant of whether a person qualifies for in-state tuition. Therefore, under current Mississippi law, undocumented aliens do not qualify for in-state tuition.

Therefore, in response to your question, if the foreign born person is an alien that is not lawfully present in the United States, then such person would not qualify for in-state tuition. If the foreign born person is an alien that is lawfully present in the United States, then, in the absence of any Mississippi statute to the contrary, the person would be subject to the same requirements as citizens in determining residency. Likewise, an alien lawfully present in the United States would be eligible for special statutory provisions, such as the one contained in section 37-103-7 above, to avoid paying out-of-state tuition.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By: Chuck Rubisoff

Special Assistant Attorney General