The Donahoe Higher Education Act sets forth the missions and functions of the public institutions of higher education, including the University of California, administered by the Regents of the University of California, the California State University, administered by the Trustees of the California State University, and the California Community Colleges, administered by the Board of Governors of the California Community Colleges. The provisions of the Donahoe Higher Education Act apply to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, make them applicable.

This bill would prohibit the University of California, California State University, or California Community Colleges from disqualifying a student from being hired for an employment position due to the students failure to provide proof of federal work authorization, except where that proof is required by federal law or where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.

This bill would require the University of California, the California State University, and the California Community Colleges to treat a specified prohibition in federal law on hiring undocumented noncitizens as inapplicable because that provision does not apply to any branch of state government. The bill would further provide that, to the extent student employment is considered a benefit for purposes of federal law, the bill constitutes authorization to provide that benefit for purposes of specified federal law.

This bill would require the University of California, the California State University, and the California Community Colleges to implement the bill by January 6, 2025. The bills provisions would apply to the University of California, unless it is found inapplicable to the University of California and then only to the extent that the Regents of the University of California, by appropriate resolution, make them applicable. By imposing new duties on community college districts, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

The Donahoe Higher Education Act sets forth the missions and functions of the public institutions of higher education, including the University of California administered by the Regents of the University of California, the California State University administered by the Trustees of the California State University, and the California Community Colleges administered by the Board of Governors of the California Community Colleges. The provisions of the Donahoe Higher Education Act apply to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, make them applicable.

This bill would prohibit the University of California, California State University, or California Community Colleges from disqualifying a student from being hired for an employment position due to their the students failure to provide proof of federal work authorization, except where that proof is required by federal law or where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.

This bill would provide that, for its purposes, that the University of California, the California State University, and the California Community Colleges are required to treat a specified prohibition in federal law on hiring undocumented noncitizens as inapplicable because that provision does not apply to any branch of state government. The bill would further provide that, to the extent student employment is considered a benefit for purposes of federal law, the bill constitutes authorization to provide that benefit for purposes of specified federal law.

This bill would require the University of California, the California State University, and the California Community Colleges to implement the bill by January 6, 2025. The bills provisions would apply to the University of California, unless it is found inapplicable to the University of California and then only to the extent that the Regents of the University of California, by appropriate resolution, make them applicable. By imposing new duties on community college districts, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

The Donahoe Higher Education Act sets forth the missions and functions of the public institutions of higher education, including the University of California administered by the Regents of the University of California, the California State University administered by the Trustees of the California State University, and the California Community Colleges administered by the Board of Governors of the California Community Colleges. The provisions of the Donahoe Higher Education Act apply to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, make them applicable.

This bill would prohibit the University of California, California State University, or California Community Colleges from disqualifying a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except where that proof is required by federal law or where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.

This bill would provide that, for its purposes, the University of California, the California State University, and the California Community Colleges are required to treat a specified prohibition in federal law on hiring undocumented noncitizens as inapplicable because that provision does not apply to any branch of state government. The bill would further provide that, to the extent student employment is considered a benefit for purposes of federal law, the bill constitutes authorization to provide that benefit for purposes of specified federal law.

This bill would require the University of California, the California State University, and the California Community Colleges to implement the bill by January 6, 2025. The bills provisions would apply to the University of California, unless it is found inapplicable to the University of California and then only to the extent that the Regents of the University of California, by appropriate resolution, make them applicable. By imposing new duties on community college districts, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

The Donahoe Higher Education Act sets forth the missions and functions of the public institutions of higher education, including the University of California administered by the Regents of the University of California, the California State University administered by the Trustees of the California State University, and the California Community Colleges administered by the Board of Governors of the California Community Colleges. The provisions of the Donahoe Higher Education Act apply to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, make them applicable.

This bill would prohibit a the University of California, California State University, or California Community College campus Colleges from disqualifying a student from being eligible to apply hired for an employment position at the campus due to their failure to provide proof of federal work authorization, except where that proof is required by federal law or where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.

This bill would provide that, for its purposes, each campus of the University of California, the California State University, and the California Community Colleges is are required to treat a specified prohibition in federal law on hiring unauthorized aliens undocumented noncitizens as inapplicable because that provision of federal law does not state that it applies apply to any branch of state government. The bill would further provide that, to the extent student employment is considered a benefit for purposes of federal law, the bill constitutes authorization to provide that benefit for purposes of specified federal law.

This bill would require the University of California, the California State University, and the California Community Colleges to adopt regulations to implement and administer the bill within 90 days of the effective date of its provisions. by January 6, 2025. The bills provisions would apply to the University of California California, unless it is found inapplicable to the University of California and then only to the extent that the Regents of the University of California, by appropriate resolution, make them applicable. By imposing new duties on community college districts, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

The Donahoe Higher Education Act sets forth the missions and functions of the public institutions of higher education, including the University of California administered by the Regents of the University of California, the California State University administered by the Trustees of the California State University, and the California Community Colleges administered by the Board of Governors of the California Community Colleges. The provisions of the Donahoe Higher Education Act apply to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, make them applicable.

This bill would prohibit a University of California, California State University, or California Community College campus from disqualifying a student from being eligible to apply for an employment position at the campus due to their failure to provide proof of federal work authorization, except where that proof is required by federal law or where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.

This bill would provide that, for its purposes, each campus of the University of California, the California State University, and the California Community Colleges is required to treat a specified prohibition in federal law on hiring unauthorized aliens as inapplicable because that provision of federal law does not state that it applies to any branch of state government. The bill would further provide that, to the extent student employment is considered a benefit for purposes of federal law, the bill constitutes authorization to provide that benefit for purposes of specified federal law.

This bill would require the University of California, the California State University, and the California Community Colleges to adopt regulations to implement and administer the bill within 90 days of the effective date of its provisions. The bills provisions would apply to the University of California only to the extent that the Regents of the University of California, by appropriate resolution, make them applicable. By imposing new duties on community college districts, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

GOVERNOR'S VETO

GV Bill Id:AB 2586

Author:(Alvarez and Gipson)

As Enrolled Ver:August 28, 2024

2/3 vote

SUMMARY

Prohibits the University of California (UC), California State University (CSU), or California Community College (CCC) from disqualifying a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except where that proof is required by federal law or where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.

Senate Amendments:

Amendments taken in the Senate added coauthors and made non-substantive technical changes.

Governor's Veto Message

This bill prohibits California public universities from disqualifying a student from employment due to their failure to provide proof of federal employment authorization.

California has a proud history of being at the forefront of expanding opportunities for undocumented students who seek to realize their higher education dreams. Including immigrant students in opportunities to succeed through higher education is also important for local communities and California's economy. Since 2001, when the California DREAM Act (AB 540) was signed into law, the state has continually broadened access to financial aid opportunities and other supports for students who call California home, regardless of their immigration status.

While I am proud of these efforts, I am unfortunately unable to sign this legislation at this time. Given the gravity of the potential consequences of this bill, which include potential criminal and civil liability for state employees, it is critical that the courts address the legality of such a policy and the novel legal theory behind this legislation before proceeding. Seeking declaratory relief in court - an option available to the University of California - would provide such clarity.

COMMENTS

Background. The state has demonstrated a commitment to undocumented students by qualifying them for state aid programs that help make college more attainable. AB 540 (Firebaugh), Chapter 814, Statutes of 2001, and successor legislation has created a nonresident tuition exemption for certain students, including undocumented students, from paying nonresident tuition (higher than resident tuition) and/or allows them to apply and receive state aid at certain California public and private colleges. Since the enactment of AB 540, several legislative measures have modified or expanded eligibility for the exemption from nonresident tuition in order to better accommodate the diverse student population.

Existing employment challenges. On June 15, 2012, the U.S. Department of Homeland Security (DHS) announced that it would not deport certain undocumented youth who came to the United States as children. Under a directive from the DHS secretary, these youth may be granted a type of temporary permission to stay in the U.S. called "deferred action." This program became called Deferred Action for Childhood Arrivals (DACA).

In September of 2017 DACA was rescinded, a decision that placed millions of Californians at risk of losing their protection from deportation and work authorization that allowed them to be employed. Since the rescinding of the program several federal courts have provided rulings that have allowed current DACA recipients to continue to enroll in the program, however one of the federal court cases is currently pending at the Fifth Circuit Court of Appeals.

These rulings have impacted current students, where multiple incoming classes have entered that are ineligible to receive DACA and work authorization. These students have limited access to career-relevant and sustainable work opportunities during college and after graduation. Additionally, many of these students do not qualify for critical safety net programs like CalFresh.

Segmental concerns. The UC does not have a position on AB 2586, but did send a letter of concern. In their letter they identified numerous potential issues that could come with hiring undocumented students. These include:

1. The exposure of UC's undocumented students and their families to the possibility of criminal prosecution or deportation;
2. The possibility of employees involved in the hiring process like faculty, human resources, and legal professionals being subject to criminal or civil prosecution if they knowingly participate in practices deemed impermissible under federal law;
3. Civil fines, criminal penalties, or debarment from federal contracting if the UC is in violation of the Immigration Reform and Control Act (IRCA); and
4. The potential loss of billions of dollars in existing federal contracts and grants that are conditional on IRCA compliance.

Committee Staff also understands from communications with the CCC Chancellor's Office (CCCCO) that it is unclear to the CCCCO if local community college districts can be considered state entities. They note that there are specific requirements in existing law stipulating how community college districts are formed, which are determined by local county committees on school district organization.

The CCCCO also wrote that it would be exceptionally difficult for the CCC Board of Governors to adopt regulations implementing the provisions of AB 2586 (Alvarez) by January 6, 2025, given the extensive consultative and public comments process that is required by state law.

UCLA legal analysis and UC Regents' actions. The UC has been considering taking action on student employment for several years. As part of these efforts the UCLA Center for Immigration Law and Policy published a memorandum in September of 2022 analyzing whether the federal IRCA applies to states. In their memorandum it is asserted that "Nothing in 8 U.S.C. [Section] 1324a or anywhere else in IRCA comes close to meeting the U.S. Supreme Court's requirement of a clear statement that binds states. In stark contrast to IRCA, other federal statutes that do bind states mention them explicitly. These statutes include, among others, the Fair Labor Standards Act, the Family and Medical Leave Act, and the Age Discrimination in Employment Act."

"In short, when Congress passed IRCA, Congress did not curtail states' historic power to determine the employment qualifications of state employees. As a result, IRCA's prohibition on hiring undocumented persons does not bind state government entities. State entities can lawfully hire undocumented students irrespective of employment authorization status under federal law.

And as the U.S. Supreme Court recognized long ago, California law provides definitively that the UC system is part of the State of California."

On May 18, 2023, the UC Regents adopted Regents Policy 4407, which stated that, in order to pursue the goal that all persons who are enrolled as UC students should have equal access to UC employment opportunities, the Chair of the Board of Regents would convene a Regents working group to work with the President of the UC to determine next steps.

On January 25, 2024, the UC Regents passed a motion on a 10-6 vote to suspend implementation of Regents Policy 4407 for one year, delaying the internal effort to create employment opportunities for students. In their letter of concern to the Committee, the UC wrote that "last year, a working group of the Regents of the [UC] studied this issue and sought a legal path forward. However, after receiving advice from both inside and outside legal counsel, we concluded that there were considerable risks for the University and the students we aim to support. This led the Regents to postpone further action until next year while we continue to examine ways to expand undocumented students' access to equitable educational experiences."

The core question of this bill centers on the interpretation of federal law on employment that is inherently outside of the jurisdiction and expertise of this of this Committee. The author makes a compelling argument based on the expert assessment of scholars in their field – yet the UC's lack of action on this issue following their own legal review calls into question the potential ramifications to students and staff. It is clear that, according to CSAC's 2023 report Renewing the Dream – Improving Financial Aid & College Affordability for California's Undocumented Students, there are over 75,000 AB 540 students in the UC, CSU, and CCC and virtually none of them can rely on DACA for employment eligibility – a major change from the experience of similar students only a few years prior.

According to the Author

According to the author, "America has always promised that if you work hard, you will have the opportunity to succeed. Undocumented students have fulfilled their obligation and are ready to be our future teachers, scientists, doctors, and public servants. This bill will provide them with the opportunity to be employed by their campus to earn the financial means as they work towards completing their degrees."

"California's higher education systems now have an opportunity to remove barriers to employment for all students, regardless of immigration status. Legal scholars have identified that the federal prohibition on hiring undocumented people (the Immigration Reform and Control Act of 1986 (IRCA)) does not apply to state governments when they act as employers, like California's higher education systems. This means that the [UC], [CSU], [CCC] can authorize the hiring of all their undocumented students."

"California has the opportunity to continue to serve as a model for the rest of the Nation. By allowing undocumented students to be eligible for work opportunities, California will ensure all students have equal access to the opportunities they need to provide financially for themselves and work to obtain their degrees. Only then can our state truly maintain its status as an economic powerhouse and the place where the nation's future is invented."

Arguments in Support

According to the California State Student Association, "California has been a leader in the nation in providing education to students, with grants, loans, and scholarships available to undocumented students pursuing their higher education dreams. According to an estimate from the American Communities Survey, California boasts the highest count of undocumented college students, with approximately 83,000 individuals across systems. While the [CSU] does not officially track the number of enrolled undocumented students or DACA recipients, a press release put out from the [CSU] Chancellor's Office in March 2024 estimated that there were more than 8,500 undocumented students across the system. In most cases, undocumented students are unable to work unless they possess DACA status, with exceptions being rare. AB 2586 would open doors for students, regardless of immigration status, to continue to pursue their higher education dreams while being eligible for work opportunities on campus."

The California Labor Federation also wrote in support, noting that "The restriction on the unemployment of undocumented immigrant youth by our state higher education systems is due to an incorrect interpretation of the Immigration Reform and Control Act (IRCA) of 1986. To the contrary, legal scholars have identified that the federal prohibition on hiring undocumented people does not apply to state governments when they act as employers, like California's higher education systems. This means that the [UC], [CSU], and [CCC] can authorize the hiring of all their undocumented students."

Arguments in Opposition

None on file. However, the UC wrote a letter expressing concerns, which include:

1. The exposure of undocumented students and their families to the possibility of criminal prosecution or deportation;
2. The possibility of employees involved in the hiring process being subject to criminal or civil prosecution if they knowingly participate in practices deemed impermissible under federal law;
3. Civil fines, criminal penalties, or debarment from federal contracting if UC is in violation of the Immigration Reform and Control Act (IRCA); and
4. The potential loss of funding from existing federal contracts and grants that are conditional on IRCA compliance.

FISCAL COMMENTS

According to the Senate Committee on Appropriations:

1. Potentially significant one-time (General Fund) costs, potentially in the mid-hundreds of thousands of dollars to UC and CSU to update policies regarding hiring of undocumented students. Both UC and CSU state concerns over whether this bill could result in the loss of billions of dollars in federal funding, should the federal government withdraw its funding to UC and CSU as a result of this bill.
2. One-time Proposition 98 (General Fund) costs, potentially in the millions of dollars, for CCCs to update policies and procedures regarding the hiring of undocumented workers and ensure compliance with other state and federal laws (such as income taxes). This estimate assumes costs between $13,000 and $21,000 for each of the CCC's 72 districts, totaling between $936,000 and $1.5 million statewide. In addition, potential Proposition 98 General Fund costs related to litigation and potential loss of federal funds. If the Commission on State Mandates determines the bill's requirements to be a reimbursable state mandate, the state would need to reimburse these costs to CCCs.

VOTES

ASM HIGHER EDUCATION: 8-2-1

YES: Mike Fong, Arambula, Boerner, Irwin, Jackson, Low, Muratsuchi, Quirk-Silva

NO: Ta, Essayli

ABS, ABST OR NV: Chen

ASM APPROPRIATIONS: 11-4-0

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Sanchez, Dixon, Jim Patterson, Ta

ASSEMBLY FLOOR: 59-4-17

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Vince Fong, Gallagher, Joe Patterson, Sanchez

ABS, ABST OR NV: Calderon, Cervantes, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Friedman, Holden, Hoover, Lackey, Mathis, Jim Patterson, Luz Rivas, Ta, Wallis

SENATE FLOOR: 31-8-1

YES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Alvarado-Gil, Dahle, Grove, Jones, Nguyen, Niello, Seyarto, Wilk

ABS, ABST OR NV: Ochoa Bogh

ASSEMBLY FLOOR: 63-7-9

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Megan Dahle, Dixon, Essayli, Gallagher, Mathis, Joe Patterson, Sanchez

ABS, ABST OR NV: Cervantes, Chen, Davies, Flora, Hoover, Lackey, Ortega, Jim Patterson, Ta

UPDATED

VERSION: August 28, 2024

CONSULTANT: Kevin Powers / HIGHER ED. / (916) 319-3960 FN: 0005128

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2586

Author:(Alvarez and Gipson)

As Amended Ver:August 15, 2024

Majority vote

SUMMARY

Prohibits the University of California (UC), California State University (CSU), or California Community College (CCC) from disqualifying a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except where that proof is required by federal law or where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.

Senate Amendments

Amendments taken in the Senate added coauthors and made non-substantive technical changes.

COMMENTS

Background. The state has demonstrated a commitment to undocumented students by qualifying them for state aid programs that help make college more attainable. AB 540 (Firebaugh), Chapter 814, Statutes of 2001, and successor legislation has created a nonresident tuition exemption for certain students, including undocumented students, from paying nonresident tuition (higher than resident tuition) and/or allows them to apply and receive state aid at certain California public and private colleges. Since the enactment of AB 540, several legislative measures have modified or expanded eligibility for the exemption from nonresident tuition in order to better accommodate the diverse student population.

Existing employment challenges. On June 15, 2012, the U.S. Department of Homeland Security (DHS) announced that it would not deport certain undocumented youth who came to the United States as children. Under a directive from the DHS secretary, these youth may be granted a type of temporary permission to stay in the U.S. called "deferred action." This program became called Deferred Action for Childhood Arrivals (DACA).

In September of 2017 DACA was rescinded, a decision that placed millions of Californians at risk of losing their protection from deportation and work authorization that allowed them to be employed. Since the rescinding of the program several federal courts have provided rulings that have allowed current DACA recipients to continue to enroll in the program, however one of the federal court cases is currently pending at the Fifth Circuit Court of Appeals.

These rulings have impacted current students, where multiple incoming classes have entered that are ineligible to receive DACA and work authorization. These students have limited access to career-relevant and sustainable work opportunities during college and after graduation. Additionally, many of these students do not qualify for critical safety net programs like CalFresh.

Segmental concerns. The UC does not have a position on AB 2586, but did send a letter of concern. In their letter they identified numerous potential issues that could come with hiring undocumented students. These include:

1. The exposure of UC's undocumented students and their families to the possibility of criminal prosecution or deportation;
2. The possibility of employees involved in the hiring process like faculty, human resources, and legal professionals being subject to criminal or civil prosecution if they knowingly participate in practices deemed impermissible under federal law;
3. Civil fines, criminal penalties, or debarment from federal contracting if the UC is in violation of the Immigration Reform and Control Act (IRCA); and
4. The potential loss of billions of dollars in existing federal contracts and grants that are conditional on IRCA compliance.

Committee Staff also understands from communications with the CCC Chancellor's Office (CCCCO) that it is unclear to the CCCCO if local community college districts can be considered state entities. They note that there are specific requirements in existing law stipulating how community college districts are formed, which are determined by local county committees on school district organization.

The CCCCO also wrote that it would be exceptionally difficult for the CCC Board of Governors to adopt regulations implementing the provisions of AB 2586 (Alvarez) by January 6, 2025, given the extensive consultative and public comments process that is required by state law.

UCLA legal analysis and UC Regents' actions. The UC has been considering taking action on student employment for several years. As part of these efforts the UCLA Center for Immigration Law and Policy published a memorandum in September of 2022 analyzing whether the federal IRCA applies to states. In their memorandum it is asserted that "Nothing in 8 U.S.C. [Section] 1324a or anywhere else in IRCA comes close to meeting the U.S. Supreme Court's requirement of a clear statement that binds states. In stark contrast to IRCA, other federal statutes that do bind states mention them explicitly. These statutes include, among others, the Fair Labor Standards Act, the Family and Medical Leave Act, and the Age Discrimination in Employment Act."

"In short, when Congress passed IRCA, Congress did not curtail states' historic power to determine the employment qualifications of state employees. As a result, IRCA's prohibition on hiring undocumented persons does not bind state government entities. State entities can lawfully hire undocumented students irrespective of employment authorization status under federal law.

And as the U.S. Supreme Court recognized long ago, California law provides definitively that the UC system is part of the State of California."

On May 18, 2023, the UC Regents adopted Regents Policy 4407, which stated that, in order to pursue the goal that all persons who are enrolled as UC students should have equal access to UC employment opportunities, the Chair of the Board of Regents would convene a Regents working group to work with the President of the UC to determine next steps.

On January 25, 2024, the UC Regents passed a motion on a 10-6 vote to suspend implementation of Regents Policy 4407 for one year, delaying the internal effort to create employment opportunities for students. In their letter of concern to the Committee, the UC wrote that "last year, a working group of the Regents of the [UC] studied this issue and sought a legal path forward. However, after receiving advice from both inside and outside legal counsel, we concluded that there were considerable risks for the University and the students we aim to support. This led the Regents to postpone further action until next year while we continue to examine ways to expand undocumented students' access to equitable educational experiences."

The core question of this bill centers on the interpretation of federal law on employment that is inherently outside of the jurisdiction and expertise of this of this Committee. The author makes a compelling argument based on the expert assessment of scholars in their field – yet the UC's lack of action on this issue following their own legal review calls into question the potential ramifications to students and staff. It is clear that, according to CSAC's 2023 report Renewing the Dream – Improving Financial Aid & College Affordability for California's Undocumented Students, there are over 75,000 AB 540 students in the UC, CSU, and CCC and virtually none of them can rely on DACA for employment eligibility – a major change from the experience of similar students only a few years prior.

According to the Author

According to the author, "America has always promised that if you work hard, you will have the opportunity to succeed. Undocumented students have fulfilled their obligation and are ready to be our future teachers, scientists, doctors, and public servants. This bill will provide them with the opportunity to be employed by their campus to earn the financial means as they work towards completing their degrees."

"California's higher education systems now have an opportunity to remove barriers to employment for all students, regardless of immigration status. Legal scholars have identified that the federal prohibition on hiring undocumented people (the Immigration Reform and Control Act of 1986 (IRCA)) does not apply to state governments when they act as employers, like California's higher education systems. This means that the [UC], [CSU], [CCC] can authorize the hiring of all their undocumented students."

"California has the opportunity to continue to serve as a model for the rest of the Nation. By allowing undocumented students to be eligible for work opportunities, California will ensure all students have equal access to the opportunities they need to provide financially for themselves and work to obtain their degrees. Only then can our state truly maintain its status as an economic powerhouse and the place where the nation's future is invented."

Arguments in Support

According to the California State Student Association, "California has been a leader in the nation in providing education to students, with grants, loans, and scholarships available to undocumented students pursuing their higher education dreams. According to an estimate from the American Communities Survey, California boasts the highest count of undocumented college students, with approximately 83,000 individuals across systems. While the [CSU] does not officially track the number of enrolled undocumented students or DACA recipients, a press release put out from the [CSU] Chancellor's Office in March 2024 estimated that there were more than 8,500 undocumented students across the system. In most cases, undocumented students are unable to work unless they possess DACA status, with exceptions being rare. AB 2586 would open doors for students, regardless of immigration status, to continue to pursue their higher education dreams while being eligible for work opportunities on campus."

The California Labor Federation also wrote in support, noting that "The restriction on the unemployment of undocumented immigrant youth by our state higher education systems is due to an incorrect interpretation of the Immigration Reform and Control Act (IRCA) of 1986. To the contrary, legal scholars have identified that the federal prohibition on hiring undocumented people does not apply to state governments when they act as employers, like California's higher education systems. This means that the [UC], [CSU], and [CCC] can authorize the hiring of all their undocumented students."

Arguments in Opposition

None on file. However, the UC wrote a letter expressing concerns, which include:

1. The exposure of undocumented students and their families to the possibility of criminal prosecution or deportation;
2. The possibility of employees involved in the hiring process being subject to criminal or civil prosecution if they knowingly participate in practices deemed impermissible under federal law;
3. Civil fines, criminal penalties, or debarment from federal contracting if UC is in violation of the Immigration Reform and Control Act (IRCA); and
4. The potential loss of funding from existing federal contracts and grants that are conditional on IRCA compliance.

FISCAL COMMENTS

According to the Senate Committee on Appropriations:

1. Potentially significant one-time (General Fund) costs, potentially in the mid-hundreds of thousands of dollars to UC and CSU to update policies regarding hiring of undocumented students. Both UC and CSU state concerns over whether this bill could result in the loss of billions of dollars in federal funding, should the federal government withdraw its funding to UC and CSU as a result of this bill.
2. One-time Proposition 98 (General Fund) costs, potentially in the millions of dollars, for CCCs to update policies and procedures regarding the hiring of undocumented workers and ensure compliance with other state and federal laws (such as income taxes). This estimate assumes costs between $13,000 and $21,000 for each of the CCC's 72 districts, totaling between $936,000 and $1.5 million statewide. In addition, potential Proposition 98 General Fund costs related to litigation and potential loss of federal funds. If the Commission on State Mandates determines the bill's requirements to be a reimbursable state mandate, the state would need to reimburse these costs to CCCs.

VOTES:

ASM HIGHER EDUCATION: 8-2-1

YES: Mike Fong, Arambula, Boerner, Irwin, Jackson, Low, Muratsuchi, Quirk-Silva

NO: Ta, Essayli

ABS, ABST OR NV: Chen

ASM APPROPRIATIONS: 11-4-0

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Sanchez, Dixon, Jim Patterson, Ta

ASSEMBLY FLOOR: 59-4-17

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO: Vince Fong, Gallagher, Joe Patterson, Sanchez

ABS, ABST OR NV: Calderon, Cervantes, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Friedman, Holden, Hoover, Lackey, Mathis, Jim Patterson, Luz Rivas, Ta, Wallis

SENATE FLOOR: 31-8-1

YES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Padilla, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Alvarado-Gil, Dahle, Grove, Jones, Nguyen, Niello, Seyarto, Wilk

ABS, ABST OR NV: Ochoa Bogh

UPDATED

VERSION: August 15, 2024

CONSULTANT: Kevin J. Powers / HIGHER ED. / (916) 319-3960 FN: 0004337

 THIRD READING  

Bill No: AB 2586

Author: Alvarez (D) and Gipson (D), et al.

Amended: 8/15/24 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 9-2, 6/25/24

AYES: Umberg, Allen, Ashby, Caballero, Durazo, Laird, Roth, Stern, Wahab

NOES: Wilk, Niello

SENATE EDUCATION COMMITTEE: 5-1, 7/3/24

AYES: Newman, Cortese, Glazer, Gonzalez, Smallwood-Cuevas

NOES: Wilk

NO VOTE RECORDED: Ochoa Bogh

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/15/24

AYES: Caballero, Ashby, Becker, Bradford, Wahab

NOES: Jones, Seyarto

ASSEMBLY FLOOR: 59-4, 5/22/24 - See last page for vote

SUBJECT: Public postsecondary education: student employment

SOURCE: Undocumented Student Led Network

CFT - a Union of Educators & Classified Professionals, AFT,

AFL-CIO

DIGEST:

This bill prohibits California public universities, beginning January 6, 2025, from disqualifying a student for employment due to their failure to provide proof of federal employment authorization.

ANALYSIS:

Existing federal law:

1. Makes it unlawful for a person or other entity to:
   1. Hire, recruit, or refer for a fee for employment in the United States an individual without authorization to work in the United States when the person or other entity knows the individual is not authorized to work in the United States;
   2. Hire for employment in the United States an individual without complying with specified employment authorization verification processes, or if the person or other entity is an agricultural association or employer or farm labor contractor, to hire, or recruit or refer for a fee an individual for employment without complying with specified employment authorization verification processes. (8 U.S.C. § 1324a(a).)
2. Establishes the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and specifies that certain immigrants shall not be eligible for any state or local public benefit, except as provided.

• 1. Defines “state or local public benefit” to mean the following:
     1. any grant, contract, loan, professional license, or commercial license provided by an agency or state of local government or by appropriated funds of a State or local government; and
     2. any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State of local government.
  2. Provides specified state or local public benefits that are exempt from the prohibition in (1). (8 U.S.C. § 1621.)
  3. Specifies that a state may provide that undocumented immigrants who are not lawfully present in the United States are eligible for a state or local public benefit for which the individual would otherwise be ineligible under this Act only through the enactment of a state law after August 22, 1996, that affirmatively provides for that eligibility. (8 U.S.C. § 1621(d).)

Existing state law:

1. Establishes the UC as a public trust to be administered by the Regents of the UC; and, grants the Regents full powers of organization and government, subject only to such legislative control as may be necessary to insure security of its funds, compliance with the terms of its endowments, statutory requirements around competitive bidding and contracts, sales of property and the purchase of materials, goods and services. (Art. IX, Sec. (9)(a), California Constitution.)
2. Confers upon the CSU Trustees the powers, duties, and functions with respect to the management, administration, control of the CSU system and provides that the Trustees are responsible for the rule of government of their appointees and employees. (Edu. Code §§ 66606, 89500, et seq.)
3. Establishes the California Community Colleges under the administration of the Board of Governors of the California Community College, as one of the segments of public postsecondary education in this state, and specifies that the California Community College is comprised of community college districts. (Edu. Code § 70900.)

This bill:

1. Prohibits the University of California (UC), the California State University (CSU), and the California Community Colleges (CCC) from disqualifying a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except where:
   1. proof is required by federal law;
   2. proof is required as a condition of a grant that funds the particular employment position for which the student applied.
2. Specifies that, for the purposes of its provisions, the UC, CSU, and CCC must treat the prohibition on hiring undocumented noncitizens in the Immigration Reform and Control Act of 1986 (IRCA) as inapplicable because that provision does not apply to any branch of state government.
3. Specifies that, to the extent that any employment is considered a “benefit” for the purposes of federal law, the bill constitutes authorization by the state to provide that benefit to undocumented individuals pursuant to the exception in the PRWORA, as described above.
4. Requires that the UC, CSU, and CCC implement its provisions by January 6, 2025.
5. Specifies that this bill applies to the UC, unless it is found to be inapplicable to the UC, in which case the bill shall apply only to the extent that the UC Regents make it applicable by an appropriate resolution.

Comments

According to the author:

America and California has always promised that if you work hard, you will have the opportunity to succeed. Undocumented students have fulfilled their obligation by entering our higher education institutions but struggle to financially sustain themselves through their academic journey. This bill will provide undocumented students with the opportunity to be employed by their campus to earn the financial means as they work towards completing their degrees.

California’s higher education systems now have an opportunity to remove barriers to employment for all students, regardless of immigration status. Legal scholars have identified that the federal prohibition on hiring undocumented people (the Immigration Reform and Control Act of 1986 (IRCA)) does not apply to state governments when they act as employers, like California’s higher education systems. This means that the [UC], [CSU], [CCC] can authorize the hiring of all their undocumented students.

California has the opportunity to continue to serve as a model for the rest of the Nation. By allowing undocumented students to be eligible for work opportunities, California will ensure all students have equal access to the opportunities they need to provide financially for themselves and work to obtain their degrees. Only then can our state truly maintain its status as an economic powerhouse and the place where the nation’s future is invented.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

• Potentially significant one-time (General Fund) costs, potentially in the mid-hundreds of thousands of dollars to UC and CSU to update policies regarding hiring of undocumented students. Both UC and CSU state concerns over whether this bill could result in the loss of billions of dollars in federal funding, should the federal government withdraw its funding to UC and CSU as a result of this bill.
  
• One-time Proposition 98 (General Fund) costs, potentially in the millions of dollars, for CCCs to update policies and procedures regarding the hiring of undocumented workers and ensure compliance with other state and federal laws (such as income taxes). This estimate assumes costs between $13,000 and $21,000 for each of the CCC’s 72 districts, totaling between $936,000 and $1.5 million statewide. In addition, potential Proposition 98 General Fund costs related to litigation and potential loss of federal funds. If the Commission on State Mandates determines the bill’s requirements to be a reimbursable state mandate, the state would need to reimburse these costs to CCCs.

SUPPORT: (Verified 8/16/24)

Undocumented Student Led Network (source)

CFT - a Union of Educators & Classified Professionals, AFT, AFL-CIO (co-source)

ACLU California Action
Alliance for A Better Community
Alliance San Diego
Asian Americans Advancing Justice-southern California
Cal State Student Association
California Faculty Association
California Federation of Teachers AFL-CIO
California Immigrant Policy Center
California Labor Federation
California School Employees Association
California State Student Association
California State University Employees Union (CSUEU)
California Teachers Association
California Undocumented Higher Education Coalition
Campaign for College Opportunity
Center for Immigration Law and Policy At UCLA Law
Central American Resource Center (CARECEN)
Citrus College
Coalition for Humane Immigrant Rights (CHIRLA)
Friends Committee on Legislation of California
Grace Institute - End Child Poverty in CA
Grantmakers Concerned With Immigrants and Refugees
Hispanic Association of Colleges & Universities
Immigrants Rising
Improving Dreams, Equity, Access and Success
Latino Democratic Club of Sacramento County
Long Beach Community College District
Los Angeles Community College District
Los Angeles United Methodist Urban Foundation
Movimiento Estudiantil Chicanx De Aztlan (MECHA) De UCI
Nextgen California
Norcal Resist
Rio Hondo College
Scholars Promoting Education Awareness and Knowledge for Undocumented and Immigrant Rights At UC Davis
Southern California College Access Network
Southern California College Attainment Network
Southwestern Community College District (UNREG)
Student Senate for California Community Colleges
Students Advocating for Immigrant Rights and Equity (safire At UC Irvine)
Uaspire
UAW Local 4123
UAW Local 4811
UC Merced Young Democratic Socialists of America
UC Student Association
United We Dream
Universidad Popular
University of California Student Association

106 Individuals

OPPOSITION: (Verified 8/16/24)

None received

ARGUMENTS IN SUPPORT:

According to the Undocumented Student-Led Network, which is the sponsor of AB 2586:

All students in California deserve the opportunity to obtain an affordable college education in pursuit of the California Dream, regardless of immigration status. In the past decade, California has supported undocumented students and individuals by expanding Medi-Cal and allowing California IDs for all. These are just a few of the State’s efforts in ensuring undocumented individuals are supported. California must continue to support them.

Currently, California colleges and universities enroll over 82,000 undocumented students, many of whom do not qualify for Deferred Action for Childhood Arrivals (DACA) status, and thus have been unjustly barred from opportunities on campus. This widens an existing equity gap between them and their peers and prevents many undocumented students from being able to continue to pursue higher education. Additionally, many undocumented students are left unemployed during their college years and following graduation, forcing them to miss out on critical career development opportunities. Therefore, as the nation waits for the federal government to develop a pathway to citizenship, and thus employment opportunities, it is vital that California lead the way in protecting and supporting undocumented students in reaching

their college and career dreams.

Though California universities have taken steps towards providing other forms of financial and career support for undocumented students, none of these alternatives– namely fellowships– are sufficient or impactful like providing on-campus employment. Fellowships affect the financial aid package of undocumented students and students often face significant issues with the disbursement of these funds. The resources, funding, and staffing capacity on each campus also affects the quality and quantity of fellowship programs for undocumented students, thus not all fellowships are equitable across universities. Moreover, at their core, these alternatives represent an embrace of inequity and difference for California’s undocumented students, despite the fact that they pay and contribute to their universities and communities as much as their peers with legal status. No California university has yet to develop any meaningful alternative that is equitable to the experience of full employment. As such, it is critical that California heed its call to embrace and provide equal opportunities for all California residents to thrive. It is that mission and charge we believe is at the center of Assembly Bill 2586.

Notable legal scholars have identified that the federal prohibition on hiring undocumented people (the Immigration Reform and Control Act of 1986 (IRCA)) does not apply to state governments when they act as employers, like California’s higher education systems. This means that the University of California, California State University, and the California Community Colleges can authorize the hiring of all their undocumented students. See 8 U.S.C. 1324a(a)(1), (a)(7). Under governing U.S. Supreme Court precedent, if Congress seeks to legislate in an area of traditional state control, it must mention the states explicitly if it wishes to bind them. The rules governing whom states can hire as their own employees are an area of traditional state control. Because nothing in 8 U.S.C. 1324a expressly binds or even mentions state governments or their branches, it does not bind them.

AB 2586 has the potential to set a precedent across the nation as we navigate an ever-increasingly uncertain federal landscape in 2024 and beyond. This bill will allow states across the nation to follow our lead in combating racist, anti-immigrant policies that threaten the livelihood of millions of undocumented individuals across the nation each day.

ARGUMENTS IN OPPOSITION: According to the University of California, which expresses the following concerns but has not taken a position on AB 2586:

While the University supports the author’s aim to provide equitable student employment opportunities, there are outstanding concerns about AB 2586 and how to implement such a policy. Those concerns include:

• The exposure of our undocumented students and their families to the possibility of criminal prosecution or deportation;
• The possibility of employees involved in the hiring process (i.e., faculty, human resources, and legal professionals) being subject to criminal or civil prosecution if they knowingly participate in practices deemed impermissible under federal law;
• Civil fines, criminal penalties, or debarment from federal contracting if the University is in violation of the Immigration Reform and Control Act (IRCA); and
• The potential loss of billions of dollars in existing federal contracts and grants that are conditional on IRCA compliance.

Unfortunately, AB 2586 does not protect our undocumented students or employees from prosecution, nor does it protect the University from the risk of potentially losing billions in federal dollars.

While the University is not opposed to AB 2586, or the goal to provide employment opportunities to undocumented students, we share the concerns above because we would welcome working with the author and Legislature on other legal options to support these students.

ASSEMBLY FLOOR: 59-4, 5/22/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Juan Carrillo, Wendy Carrillo, Connolly, Mike Fong, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Waldron, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Vince Fong, Gallagher, Joe Patterson, Sanchez

NO VOTE RECORDED: Calderon, Cervantes, Chen, Megan Dahle, Davies, Dixon, Essayli, Flora, Friedman, Holden, Hoover, Lackey, Mathis, Jim Patterson, Luz Rivas, Ta, Wallis

Prepared by: Ian Dougherty / JUD. / (916) 651-4113

8/19/24 12:35:57

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 2586 (Alvarez) - Public postsecondary education: student employment

Bill Summary:

AB 2586 prohibits the University of California (UC), California State University (CSU), or the California Community Colleges California (CCC), beginning January 6, 2025, from disqualifying a student for employment due to their failure to provide proof of federal employment authorization.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 15, 2024

Fiscal Impact:

• Potentially significant one-time (General Fund) costs, potentially in the mid-hundreds of thousands of dollars to UC and CSU to update policies regarding hiring of undocumented students. Both UC and CSU state concerns over whether this bill could result in the loss of billions of dollars in federal funding, should the federal government withdraw its funding to UC and CSU as a result of this bill.
  
• One-time Proposition 98 (General Fund) costs, potentially in the millions of dollars, for CCCs to update policies and procedures regarding the hiring of undocumented workers and ensure compliance with other state and federal laws (such as income taxes). This estimate assumes costs between $13,000 and $21,000 for each of the CCC’s 72 districts, totaling between $936,000 and $1.5 million statewide. In addition, potential Proposition 98 General Fund costs related to litigation and potential loss of federal funds. If the Commission on State Mandates determines the bill’s requirements to be a reimbursable state mandate, the state would need to reimburse these costs to CCCs.

Author Amendments:

These amendments add co-authors.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 2586 (Alvarez) - Public postsecondary education: student employment

Bill Summary:

AB 2586 prohibits the University of California (UC), California State University (CSU), or the California Community Colleges California (CCC), beginning January 6, 2025, from disqualifying a student for employment due to their failure to provide proof of federal employment authorization.

Fiscal Impact:

• Potentially significant one-time (General Fund) costs, potentially in the mid-hundreds of thousands of dollars to UC and CSU to update policies regarding hiring of undocumented students. Both UC and CSU state concerns over whether this bill could result in the loss of billions of dollars in federal funding, should the federal government withdraw its funding to UC and CSU as a result of this bill.
  
• One-time Proposition 98 (General Fund) costs, potentially in the millions of dollars, for CCCs to update policies and procedures regarding the hiring of undocumented workers and ensure compliance with other state and federal laws (such as income taxes). This estimate assumes costs between $13,000 and $21,000 for each of the CCC’s 72 districts, totaling between $936,000 and $1.5 million statewide. In addition, potential Proposition 98 General Fund costs related to litigation and potential loss of federal funds. If the Commission on State Mandates determines the bill’s requirements to be a reimbursable state mandate, the state would need to reimburse these costs to CCCs.

Background:

The Legislature has created various forms of financial assistance to support undocumented postsecondary students, such as providing to undocumented students in-state tuition rates, access to state financial aid, and access to a state student loan programs.

In 2012, the U.S. Department of Homeland Security announced certain undocumented youth who came to the United States as children would be eligible for temporary permission to stay in the U.S. under the newly created Deferred Action for Childhood Arrivals (DACA) authorization. In addition to permission to stay in the U.S., DACA recipients also were eligible for work authorizations.

In 2017, the federal government rescinded DACA. Since the rescinding of the program, several federal courts have provided rulings that allowed current DACA recipients to continue to enroll in the program. However, the vast majority of undocumented students enrolled in California’s colleges and universities did not hold DACA authorization at the time of rescinding and therefore do not hold DACA work authorization.

On May 18, 2023, the UC Regents adopted Regents Policy 4407, which stated that, in order to pursue the goal that all persons who are enrolled as UC students should have equal access to UC employment opportunities, the Chair of the Board of Regents would convene a Regents working group to work with the President of the UC to determine next steps.

On January 25, 2024, the UC Regents passed a motion on a 10-6 vote to suspend implementation of Regents Policy 4407 for one year, delaying the internal effort to create employment opportunities for students. In their letter of concern to the Assembly Higher Education Committee, the UC wrote:

Last year, a working group of the Regents of the [UC] studied this issue and sought a legal path forward. However, after receiving advice from both inside and outside legal counsel, we concluded that there were considerable risks for the University and the students we aim to support. This led the Regents to postpone further action until next year while we continue to examine ways to expand undocumented students’ access to equitable educational experiences.

Proposed Law:

• Prohibits the UC, CSU, or CCCs from disqualifying a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except in either of the following cases:
  • Where that proof is required by federal law; and,
  • Where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.
• Requires that, for purposes of this bill, the UC, the CSU, and the CCC treat the prohibition on hiring undocumented noncitizens in federal law as inapplicable because that provision does not apply to any branch of state government.
• Specifies that, to the extent that any employment is considered a “benefit” for the purposes of federal law, the bill constitutes authorization by the state to provide that benefit to undocumented individuals pursuant to the exception in the PRWORA.
• Requires that the UC, the CSU, and the CCC implement this bill by January 6, 2025.
• States that this bill’s provisions only apply to the UC, provided that it is found to be inapplicable to the university, then, consistent with state law, is only applicable to the university only to the extent that the UC Regents make it applicable.

-- END --

SENATE COMMITTEE ON EDUCATION

Senator Josh Newman, Chair

2023 - 2024 Regular

Bill No: AB 2586 Hearing Date: July 3, 2024

Subject: Public postsecondary education: student employment.

SUMMARY

This bill prohibits the University of California (UC), California State University (CSU), or the California Community Colleges California (CCC), beginning January 6, 2025, from disqualifying a student for employment due to their failure to provide proof of federal employment authorization.

BACKGROUND

Existing law:

State law

1) Establishes the UC as a public trust to be administered by the Regents of the UC; and, grants the Regents full powers of organization and government, subject only to such legislative control as may be necessary to insure security of its funds, compliance with the terms of its endowments, statutory requirements around competitive bidding and contracts, sales of property and the purchase of materials, goods and services. (Article IX, Section (9)(a) of the California Constitution)

2) Confers upon the CSU Trustees the powers, duties, and functions with respect to the management, administration, control of the CSU system and provides that the Trustees are responsible for the rule of government of their appointees and employees. (Education Code (EC) § 66606 and 89500, et seq.)

3) Establishes the CCC under the administration of the Board of Governors of the CCC, as one of the segments of public postsecondary education in this state, and specifies that the CCC is comprised of community college districts. (EC § 70900)

4) Establishes the California Student Aid Commission (Commission) for the purpose of administering specified student financial aid programs. (EC § 69510, et seq.)

5) Authorizes the Cal Grant Program, administered by the Commission, to provide grants to financially needy students to attend college. The Cal Grant programs include both the entitlement and the competitive Cal Grant awards. The program consists of the Cal Grant A, Cal Grant B, and Cal Grant C programs, and eligibility is based upon financial need, grade point average, California residency, and other eligibility criteria, as specified in Education Code § 69433.9. (EC § 69430-69433.9)

6) Established AB 540 (Firebaugh, Chapter 814, Statutes of 2001), exempts California nonresident students, regardless of citizenship status, from paying nonresident tuition at California public colleges and universities who meet all of the following requirements:

a) Satisfied requirements of either (i) or (ii):

i) A total attendance of, or attainment of credits earned while in California equivalent to, three or more years of full-time attendance or attainment of credits at any of the following:

(1) California high schools;

(2) California high schools established by the State Board of Education;

(3) California adult schools established by any of the following entities:

(a) A county office of education;

(b) A unified school district or high school district; and,

(c) The Department of Corrections and Rehabilitation.

(4) Campuses of the CCC.

(5) A combination of those schools set forth in (1) to (4), inclusive.

ii) Three or more years of full-time high school coursework in California, and a total of three or more years of attendance in California elementary schools, California secondary schools, or a combination of California elementary and secondary schools.

b) Satisfied any of the following:

i) Graduation from a California high school or attainment of the equivalent;

ii) Attainment of an associate degree from a campus of the CCC; and/or,

iii) Fulfillment of the minimum transfer requirements established for UC or CSU for students transferring from a campus of the CCC.

c) Stipulates that in the case of a person without lawful immigration status, the student must file an affidavit, as specified, stating that the student has filed an application to legalize the student’s immigration status, or will file an application as soon as the student is eligible to do so. (EC § 68130.5)

7) Provides that a student who meets the nonresident tuition exemption AB 540 requirements or who meets equivalent requirements adopted by the UC is eligible to apply for any financial aid program administered by the state to the full extent permitted by federal law. (EC § 69508.5)

8) Requires the Commission to establish procedures and forms that enable students who meet the nonresident tuition exemption AB 540 requirements, or who meet equivalent requirements adopted by the UC Regents, to apply for, and participate in, all student financial aid programs administered by the State of California to the full extent permitted by federal law. (EC § 69508.5 (b))

9) Provides that a student attending a CCC, CSU, or UC who is exempt from paying nonresident tuition exemption AB 540 requirements is eligible to receive a scholarship derived from non-state funds received, for the purpose of scholarships, by the segment (i.e., CCC, CSU, or UC) at which the student is enrolled. (EC § 66021.7)

10) Establishes the DREAM Loan Program at UC and CSU campuses that elect to participate in the program. Under the program, an AB 540 student meeting specified requirements, including demonstrating financial need, may obtain a loan of up to $4,000 per academic year, up to a maximum of $20,000 as an undergraduate student. No more than $20,000 as a graduate student. The repayment term for the loan is 10 years, and repayment commences following a six-month grace period beginning when the student graduates or ceases to maintain at least half-time enrollment. Eligibility for deferment or forbearance of loan repayments is consistent with the federal direct student loan program. (EC § 70033)

Federal law

11) Makes it unlawful for a person or other entity to:

a) Hire, recruit, or refer for a fee for employment in the United States an individual without authorization to work in the United States when the person or other entity knows the individual is not authorized to work in the United States;

b) Hire for employment in the United States an individual without complying with specified employment authorization verification processes, or if the person or other entity is an agricultural association or employer or farm labor contractor, to hire, or recruit or refer for a fee an individual for employment without complying with specified employment authorization verification processes. (8 U.S.C. § 1324a(a).)

12) Establishes the Personal Responsibility and Work Opportunity Reconciliation Act

of 1996 (PRWORA) and specifies that certain immigrants shall not be eligible for any state or local public benefit, except as provided.

1. Defines “state or local public benefit” to mean the following:

i) any grant, contract, loan, professional license, or commercial license provided by an agency or state of local government or by appropriated funds of a State or local government; and

ii) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State of local government.

b) Provides specified state or local public benefits that are exempt from the prohibition in (1). (8 U.S.C. § 1621.)

c) Specifies that a state may provide that undocumented immigrants who are not lawfully present in the United States are eligible for a state or local public benefit for which the individual would otherwise be ineligible under this Act only through the enactment of a state law after August 22, 1996, that affirmatively provides for that eligibility. (8 U.S.C. § 1621(d).)

ANALYSIS

This bill:

1. Prohibits the UC, CSU, or CCCs from disqualifying a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except in either of the following cases:
   1. Where that proof is required by federal law.
   2. Where that proof is required as a condition of a grant that funds the

particular employment position for which the student has applied.

1. Requires that, for purposes of this bill, the UC, the CSU, and the CCC treat the prohibition on hiring undocumented noncitizens in federal law as inapplicable because that provision does not apply to any branch of state government.
2. Specifies that, to the extent that any employment is considered a “benefit” for the purposes of federal law, the bill constitutes authorization by the state to provide that benefit to undocumented individuals pursuant to the exception in the PRWORA.
3. Requires that the UC, the CSU, and the CCC implement this bill by January 6, 2025.
4. States that this bill’s provisions only apply to the UC, provided that it is found to be inapplicable to the university, then, consistent with state law, is only applicable to the university only to the extent that the UC Regents make it applicable.

STAFF COMMENTS

1. Need for the bill. According to the sponsors of this bill, Undocumented Student-Led Network, “Notable legal scholars [from UCLA Center for Immigration Law and Policy] have identified that the federal prohibition on hiring undocumented people (the Immigration Reform and Control Act of 1986 (IRCA)) does not apply to state governments when they act as employers, like California’s higher education systems. This means that the University of California, California State University and the California Community Colleges can authorize the hiring of all their undocumented students. See 8 U.S.C. 1324a(a)(1), (a)(7). Under governing U.S. Supreme Court precedent, if Congress seeks to legislate in an area of traditional state control, it must mention the states explicitly if it wishes to bind them. The rules governing whom states can hire as their own employees are an area of traditional state control. Because nothing in 8 U.S.C. 1324a expressly binds or even mentions state governments or their branches, it does not bind them.”

The sponsors assert, “AB 2586 has the potential to set a precedent across the nation as we navigate an ever-increasingly uncertain federal landscape in 2024 and beyond. This bill will allow states across the nation to follow our lead in combating racist, anti-immigrant policies that threaten the livelihood of millions of undocumented individuals across the nation each day.”

1. State resources for undocumented students in higher education. According to the California Student Aid Commission's 2023 report, Renewing the Dream, California's undocumented student population enrolled in postsecondary education is the largest in the nation, with close to 100,000 students. The large majority enroll in the community college system. Compared to their undergraduate and graduate counterparts, undocumented students face unique challenges and have limited options to fund their education. This state has demonstrated a willingness to invest in their college success. Currently, undocumented students attending a CSU, UC, or CCC who meet the AB 540 requirements are eligible for in-state tuition and to obtain institutional or state funded grants, scholarships, fellowships, or loans, which do not have legal status requirements. This includes Cal Grant, Middle Class Scholarship, the Community College Promise Grant, and Dream Loan program, among others. Despite the various efforts made, students encounter obstacles in accessing significant sources of funding for their education. Federal financial aid programs and employment opportunities are inaccessible to students without legal status. These barriers extend to opportunities for practical training and professional development that are integral to the college experience and gained employment.
2. Related court cases. After the enactment of AB 540 (Firebaugh, Chapter 814, Statutes of 2001), in 2005, Martinez v. Regents of the University of California et al. was filed against the UC, CSU, and the Board of Governors of the CCC, challenging the legality of AB 540. In October 2006 a California Superior Court ruled in favor of AB 540 stating its provisions were in accordance with federal law. In September 2008 a California Court of Appeal overturned the Superior Court's ruling in Martinez v. Regents and held that California state law authorizing in-state tuition to undocumented individuals is preempted by federal immigration law and void. The decision was appealed and in December 2008 the Supreme Court of California agreed to review the case. In November 2010, the California Supreme Court reversed the judgment of the Court of Appeal, finding that the provisions of AB 540 did not violate the federal immigration law and concluding that the plaintiffs' remaining challenges to the provisions of AB 540 lacked merit. In the years to follow, numerous statutes were implemented, as noted in the background section of this analysis, to expand the accessibility of state aid programs for AB 540 students pursuing higher education.
3. Efforts to create a viable path for employment have proven to be unsuccessful. The issue of undocumented student employment continues to be a subject of ongoing debate. Attempts at both the federal and institutional levels to create a viable path for employment for undocumented students have been unsuccessful.

• Deferred Action for Childhood Arrivals. In 2012, the U.S. Department of Homeland Security announced certain undocumented youth who came to the United States as children would be eligible for temporary permission to stay in the U.S. under the newly created Deferred Action for Childhood Arrivals (DACA) authorization. In addition to permission to stay in the U.S., DACA recipients also were eligible for work authorizations.

In 2017, the federal government rescinded DACA. Since the rescinding of the program, several federal courts have provided rulings that allowed current DACA recipients to continue to enroll in the program. The Commission’s report notes that close to 200,000 undocumented Californians participated in DACA. However, a growing number of undocumented students entering college are ineligible for DACA and do not have work authorization. It further states that the lack of federal action over the past decade has accelerated the need for steps to step in to support undocumented students.

• UC Board of Regents Policy. As noted in the Assembly Higher Education Committee analysis, the UC has been considering taking action on student employment for several years. As part of these efforts the UCLA Center for Immigration Law and Policy published a memorandum in September of 2022 analyzing whether the federal IRCA applies to states. In their memorandum, it is asserted that “Nothing in 8 U.S.C. [Section] 1324a or anywhere else in IRCA comes close to meeting the U.S. Supreme Court’s requirement of a clear statement that binds states. In stark contrast to IRCA, other federal statutes that do bind states mention them explicitly. These statutes include, among others, the Fair Labor Standards Act, the Family and Medical Leave Act, and the Age Discrimination in Employment Act.

“In short, when Congress passed IRCA, Congress did not curtail states’ historic power to determine the employment qualifications of state employees. As a result, IRCA’s prohibition on hiring undocumented persons does not bind state government entities. State entities can lawfully hire undocumented students irrespective of employment authorization status under federal law. And as the U.S. Supreme Court recognized long ago, California law provides definitively that the UC system is part of the State of California.”

On May 18, 2023, the UC Regents adopted Regents Policy 4407, which stated that, in order to pursue the goal that all persons, regardless of immigration status, who are enrolled as UC students should have equal access to UC employment opportunities, the Chair of the Board of Regents would convene a Regents working group to work with the President of the UC to determine next steps.

On January 25, 2024, the UC Regents passed a motion on a 10-6 vote to suspend implementation of Regents Policy 4407 for one year, delaying the internal effort to create employment opportunities for students. In their letter of concern to this Committee, the UC writes, “Last year, a working group of the Regents of the [UC] studied this issue and sought a legal path forward. However, after receiving advice from both inside and outside legal counsel, we concluded that there were considerable risks for the University and the students we aim to support. This led the Regents to postpone further action until next year while we continue to examine ways to expand undocumented students’ access to equitable educational experiences.”

This bill aims to prevent California’s public higher education segments from disqualifying a student for employment solely based on their failure to provide proof of federal work authorization. However, it does allow for exceptions where federal law or grant requirements necessitate proof of work authorization.

1. Applicability to the UC. This bill’s provisions only apply to the UC, if it is determined that it does not apply to the university, then it will only be applicable to the university to the extent that the UC Regents determine it to be applicable. It acknowledges the UC Regents' constitutional autonomy and authority to determine the applicability of laws within the UC system. This is consistent with current state law, which specifies that no provisions of the Donohue Higher Education Act are to apply to the UC except to the extent that the UC Regents, by appropriate resolution, make that provision applicable. However, the provision in this bill includes an additional procedural step; if it is determined that the bill’s provisions do not apply to the UC, then it will only be applicable to the extent the UC Regents make it applicable. The rationale for the inclusion of this extra step is unclear.
2. Legal considerations. The bill further states that if any employment is deemed a "benefit" under federal law, the bill constitutes state authorization to extend that benefit to undocumented individuals, as allowed by the exception in the federal law (PRWORA). While this Committee appropriately considers policy that impact educational institutions and students, federal employment law are generally not within this Committee’s purview. This bill was previously heard by the Senate Judiciary Committee on June 26 where it passed by a vote of 9 to 2. The Senate Judiciary analysis examines the legal arguments surrounding the proposal for UC, CSU, and CCC to employ undocumented students. It also responds to the concerns raised by UC regarding this matter. Refer to the analysis by the Senate Judiciary Committee for a comprehensive discussion on legal considerations.
3. Legal guidance for students? State statute encourages the establishment of Dream Resource centers and requires that public higher education institutions designate an individual on campus who is knowledgeable in financial aid, social services, state-funded immigration legal services and other support services, to assist undocumented students. However, services on each campus vary and can range from having a designated center that is independent, sharing a space, and/or having a point of contact. Additionally, in acknowledging the complexities undocumented students face and in recognizing the importance of sound legal advice, the state since the 2018-2019 Budget Act has allocated funds to support the provision of immigration legal services for students and staff at UC, CSU, or CCC campuses. In subsequent years, the CSU ($7 million) and CCCs ($10 million) received ongoing general fund allocations, but it is not clear if the UC’s allocation was ongoing or one-time. It is important to recognize that each student's situation leading to undocumented status is individual, and any decision to pursue employment as an undocumented student should be made with appropriate guidance. This Committee has approved numerous measures to guide student decision-making through degree completion. This includes ensuring that students make informed academic and financial decisions that result in them achieving their academic goals. As noted in the Senate Judiciary Analysis, unauthorized employment can affect an individual’s eligibility for some immigration statuses. This bill is silent on the issue of providing legal guidance to undocumented students. Seemingly, support services are available to students, but if this is to be a precedent setting measure is it reasonable to place sole responsibility on students to actively seek them out prior to employment?
4. Concerns from segments. The UC does not have a position on AB 2586, but expressed concerns in a letter submitted to this Committee. It identified numerous potential issues that may arise with hiring undocumented students including:

• The exposure of UC’s undocumented students and their families to the possibility of criminal prosecution or deportation;
• The possibility of employees involved in the hiring process like faculty, human resources, and legal professionals being subject to criminal or civil prosecution if they knowingly participate in practices deemed impermissible under federal law;
• Civil fines, criminal penalties, or debarment from federal contracting if the UC is in violation of the Immigration Reform and Control Act (IRCA); and
• The potential loss of billions of dollars in existing federal contracts and grants that are conditional on IRCA compliance.

As highlighted in the Assembly Higher Education Committee analysis, and verified by Committee staff, it is unclear to the Community College Chancellor’s Office whether local community college districts can be considered state entities. They note that there are specific requirements in existing law stipulating how community college districts are formed, which are determined by local county committees on school district organization.

Committee staff contacted CSU but did not receive a response prior to the completion of this analysis.

SUPPORT

Undocumented Student-Led Network (Sponsor)

Alliance for a Better Community

Cal State Student Association

California Faculty Association

California Federation of Teachers

California State University Employees Union

California Teachers Association

California Undocumented Higher Education Coalition

Campaign for College Opportunity

Coalition for Humane Immigrant Rights

Friends Committee on Legislation of California

Hispanic Association of Colleges & Universities

Immigrants Rising

Los Angeles United Methodist Urban Foundation

Southern California College Access Network

Student Senate for California Community Colleges

uAspire

UAW Local 4123

UAW Local 4811

University of California Student Association

OPPOSITION

None received

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 2586 (Author:Alvarez)

Version: June 10, 2024

Hearing Date: June 25, 2024

Fiscal: Yes

Urgency: No

Consultant: ID

SUBJECT

Public postsecondary education: student employment

DIGEST

This bill prohibits California public universities, beginning January 6, 2025, from disqualifying a student for employment due to their failure to provide proof of federal employment authorization.

EXECUTIVE SUMMARY

There are about 82,933 undocumented university students in California. Undocumented students are important members of their academic communities and California communities at large. Most of the state’s undocumented students have been living in the United States for many years and arrived when they were children. However, without immigration status from the federal government, California’s undocumented students are denied access to federal public benefits and federal school loan and grant programs. They also do not have authorization from the federal government to work in the United States. While many undocumented students have Deferred Action for Childhood Arrivals (DACA), and thus employment authorization, fewer and fewer of the state’s undocumented students have DACA because of pending litigation that paused new applications and because fewer and fewer students meet the program’s requirements. In 2022, the UC proposed to allow undocumented students employment on campus, on the theory that the federal law that prohibited “a person or other entity” from hiring an individual without employment authorization does not apply to state governments. However, the proposal stalled earlier this year. This bill carries on the work of that proposal, prohibiting the UC, CSU, and Community Colleges from disqualifying a student applicant for a job solely on the fact that they cannot provide proof of their federal employment authorization. AB 2586 is sponsored by the Undocumented Student-Led Network and CFT – a Union of Educators & Classified Professionals, Aft, AFL-CIO, and is supported by the ACLU, school employee and faculty associations, labor unions, and student and other organizations that support immigrant and civil rights. The Committee has received no timely opposition to this bill. Should this bill pass this Committee, it will next be heard in the Senate Education Committee.

PROPOSED CHANGES TO THE LAW

Existing federal law:

1. Makes it unlawful for a person or other entity to:
   1. Hire, recruit, or refer for a fee for employment in the United States an individual without authorization to work in the United States when the person or other entity knows the individual is not authorized to work in the United States;
   2. Hire for employment in the United States an individual without complying with specified employment authorization verification processes, or if the person or other entity is an agricultural association or employer or farm labor contractor, to hire, or recruit or refer for a fee an individual for employment without complying with specified employment authorization verification processes. (8 U.S.C. § 1324a(a).)
2. Establishes the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and specifies that certain immigrants shall not be eligible for any state or local public benefit, except as provided.
   1. Defines “state or local public benefit” to mean the following:
      1. any grant, contract, loan, professional license, or commercial license provided by an agency or state of local government or by appropriated funds of a State or local government; and
      2. any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State of local government.
   2. Provides specified state or local public benefits that are exempt from the prohibition in (1). (8 U.S.C. § 1621.)
   3. Specifies that a state may provide that undocumented immigrants who are not lawfully present in the United States are eligible for a state or local public benefit for which the individual would otherwise be ineligible under this Act only through the enactment of a state law after August 22, 1996, that affirmatively provides for that eligibility. (8 U.S.C. § 1621(d).)

Existing state law:

1. Establishes the UC as a public trust to be administered by the Regents of the UC; and, grants the Regents full powers of organization and government, subject only to such legislative control as may be necessary to insure security of its funds, compliance with the terms of its endowments, statutory requirements around competitive bidding and contracts, sales of property and the purchase of materials, goods and services. (Art. IX, Sec. (9)(a), California Constitution.)
2. Confers upon the CSU Trustees the powers, duties, and functions with respect to the management, administration, control of the CSU system and provides that the Trustees are responsible for the rule of government of their appointees and employees. (Edu. Code §§ 66606, 89500, et seq.)
3. Establishes the California Community Colleges under the administration of the Board of Governors of the California Community College, as one of the segments of public postsecondary education in this state, and specifies that the California Community College is comprised of community college districts. (Edu. Code § 70900.)

This bill:

1. Prohibits the University of California (UC), the California State University (CSU), and the California Community Colleges (CCC) from disqualifying a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except where:
   1. proof is required by federal law;
   2. proof is required as a condition of a grant that funds the particular employment position for which the student applied.
2. Specifies that, for the purposes of its provisions, the UC, CSU, and CCC must treat the prohibition on hiring undocumented noncitizens in the Immigration Reform and Control Act of 1986 (IRCA) as inapplicable because that provision does not apply to any branch of state government.
3. Specifies that, to the extent that any employment is considered a “benefit” for the purposes of federal law, the bill constitutes authorization by the state to provide that benefit to undocumented individuals pursuant to the exception in the PRWORA, as described above.
4. Requires that the UC, CSU, and CCC must implement its provisions by January 6, 2025.
5. Specifies that this bill applies to the UC, unless it is found to be inapplicable to the UC, in which case the bill shall apply only to the extent that the UC Regents make it applicable by an appropriate resolution.

COMMENTS

1. Author’s statement

According to the author:

America and California has always promised that if you work hard, you will have the opportunity to succeed. Undocumented students have fulfilled their obligation by entering our higher education institutions but struggle to financially sustain themselves through their academic journey. This bill will provide undocumented students with the opportunity to be employed by their campus to earn the financial means as they work towards completing their degrees.

California’s higher education systems now have an opportunity to remove barriers to employment for all students, regardless of immigration status. Legal scholars have identified that the federal prohibition on hiring undocumented people (the Immigration Reform and Control Act of 1986 (IRCA)) does not apply to state governments when they act as employers, like California’s higher education systems. This means that the [UC], [CSU], [CCC] can authorize the hiring of all their undocumented students.

California has the opportunity to continue to serve as a model for the rest of the Nation. By allowing undocumented students to be eligible for work opportunities, California will ensure all students have equal access to the opportunities they need to provide financially for themselves and work to obtain their degrees. Only then can our state truly maintain its status as an economic powerhouse and the place where the nation’s future is invented.

1. California’s undocumented students

There are an estimated 408,000 undocumented students enrolled in colleges and universities across the United States.^[1] 182,000 of these students are students with DACA or who are DACA-eligible.^[2] Of these students, 77% attend public universities. It is estimated that there are about 82,933 undocumented university students in California.^[3] Undocumented students are important members of their academic communities and California communities at large. Many are studying to enter fields greatly impacted by worker shortages, or conduct vital research in important fields of academic study and research.

Many undocumented students arrived to the United States when they were young, and have long attended California schools. About 76% of undocumented students arrived in the United States when they were children or adolescents, and those who arrived to the United States as adults on average have lived in the United States for eight years.^[4] Many came to the United States with family, and were too young to remember the journey. The term undocumented generally refers to people who are in the United States without immigration status from the federal government. Lacking immigration status can be incredibly limiting; without immigration status, individuals are usually ineligible for federal public benefits and federal student loans, and may become subject to a deportation proceeding by federal immigration authorities at any time. In addition, undocumented persons are generally not authorized to work in the United States. (8 U.S.C. § 274a.)

An undocumented person may have entered the United States without any visa or immigration status, or they may have entered with an immigration status that has since expired. A person with a visa that is expiring is generally expected to renew or apply to adjust their status to a new category of immigration status, or depart the United States. However, many visas do not allow for renewals or are only designed to be temporary, and eligibility for and availability of permanent immigration status – called lawful permanent residency, or a green card – is incredibly limited. Even those who qualify for a green card may have to wait a decade or even two decades due to backlogs and administrative delays to actually be able to receive it. Without immigration reform from Congress, the United States’ immigration system continues to be broken and fails to provide meaningful opportunities for undocumented students and those who wish to stay in the United States to do so with immigration status.

Recognizing this and Congress’s failure to provide opportunities for undocumented students to obtain legal status, then-President Obama created the Deferred Action for Childhood Arrivals (DACA) program in 2012. Although not all DACA recipients are currently in school, there are about 150,230 DACA recipients in California.^[5] DACA provides a guarantee of protection from deportation, as an exercise of the Executive Branch’s prosecutorial discretion authority, and employment authorization to students who arrived to the United States when they were children. The requirements for DACA are that an applicant: was under 31 years old as of the date when President Obama announced DACA in 2012; arrived to the United States before their sixteenth birthday; has continuously resided in the United States since June 15, 2007; is currently in school or received their high school diploma or GED; has not been convicted of certain crimes; and was physically present in the United States without immigration status on the date of DACA’s announcement in 2012.^[6] Due to a slew of late lawsuits against the DACA program, the federal government has not been able to approve new applications for DACA since July 16, 2021.^[7] Many of California’s undocumented students have DACA, though the numbers of DACA recipients in California universities has been decreasing in recent years, as the time-based requirements for DACA means that fewer and fewer of incoming undocumented university students are eligible for DACA. Given the ongoing lawsuits around DACA and the fact that future Presidential administrations may decide to change course, the future of DACA remains uncertain.

1. California’s legislation to support undocumented students

California has long been committed to and has provided resources and programs to support undocumented students. In 2001, the Legislature passed AB 540 (Firebaugh, Ch. 814, Stats. 2001) to provide undocumented students entering California public universities with in-state tuition when they have attended a California high school for at least three years, have graduated from a California high school or equivalent, and met other requirements. In 2011, the Legislature passed AB 131 (Cedillo, Ch. 604, Stats. 2011) to provide students with AB 540 status eligibility for state financial aid like the Cal Grant, and in 2014 the Legislature enacted SB 1210 (Lara, Ch. 754, Stats. 2014) to establish the California DREAM Loan Program to assist undocumented students at UC and CSU campuses in financing their education. And just last year, the Legislature enacted SB 633 (Gonzalez, Ch. 622, Stats. 2023) to create the California DREAM Grant Program to provide grants to certain undocumented students attending a UC or CSU.

1. The University of California’s initiative to hire undocumented students

In 2022, a student-led organization on UC campuses, the Undocumented Student-Led Network, and the UCLA Center for Immigration Law and Policy (Center) started the Opportunity for All Campaign to advocate for the UC’s to open campus jobs to undocumented students.^[8] In a September 2022 memorandum, the Center proposed that the UC’s could hire undocumented students for positions within the UC even if they lack employment authorization under federal immigration law.^[9] The memorandum explained the Center and various immigration law experts’ legal analysis that the federal law prohibiting employers from hiring undocumented persons did not apply to the state. Following that letter, the UC Regents agreed and unanimously approved the proposal on May 18, 2023. The Regents also created the Working Group on Equitable Student Employment Opportunities, which then worked in the ensuing months to design the processes necessary to implement the proposal. However, in January 2024, the UC Regents reversed course, and suspended implementation of the proposal for a year for further review.^[10] The explanation from UC President Michael Drake for this change was that the proposal presented too much risk for students, employees of the university that implement the program, and for the university.

1. AB 2586 requires the UC, CSU, and CCC to consider undocumented students for employment

AB 2586 proposes to prohibit the UC, CSU, and CCC systems from disqualifying a student from a university employment position due to their lack of proof of federal work authorization. AB 2586 provides two exceptions for when the proof of employment authorization is required by federal law, and where the proof is required as a condition of a grant that funds the particular employment position sought. AB 2586 further directs the UC, CSU, and the CCC to treat the federal law prohibiting the hiring of individuals without immigration status as inapplicable because it does not apply to any state government. The requirements of the bill must be implemented by January 6, 2025, the first Monday of 2025.

AB 2586 has two other provisions of note. First, it specifies that, to the degree that student employment is considered a “benefit” for federal law, the bill’s provisions constitute authorization by the state for the state to provide that benefit to undocumented persons. This provision relates to the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which prohibits states from providing individuals without lawful immigration status public benefits, unless the state enacts a law after August 22, 1996 that affirmatively provides for eligibility for the public benefit for undocumented individuals. (8 U.S.C. § 1621.) In Martinez v. Regents of University of California, out-of-state students of the University of California challenged AB 540 on the grounds that it violated the prohibition in Section 1621 against a state providing an undocumented individual with public benefits; however, the California Supreme Court determined that the law complied with PRWORA’s exception because it was enacted after PRWORA, and stated in numerous provisions that it applies to persons without lawful immigration status. (Martinez v. Regents of University of California, (2010)50 Cal. 4th 1277.) In referring to PRWORA, AB 2586 is stating that its provisions providing for employment benefits to undocumented university students and fit within the exception in PRWORA.

AB 2586 also specifies that its provisions shall apply to the University of California, unless it is found to be inapplicable, in which case it shall apply if the UC Regents make it applicable by appropriate resolution. This provision recognizes the possibility that the provision may not bind the UC, as the UC enjoys autonomy from most acts of the Legislature under Section 9 of Article IX of the California Constitution. (Cal. Const. Art. IX, Sec. 9.) In such case, AB 2586’s provisions would apply if ratifies its provisions by resolution.

1. The legal arguments underlying the proposal for UC, CSU, and CCC to be able to hire undocumented students

AB 2586, like the proposal considered by the UC Regents, rests on a sound legal theory that the federal immigration law that generally prohibits employers from hiring undocumented persons does not apply to the state government. The theory, as described in the Center for Immigration Law and Policy’s 2022 memorandum, first applies traditional rules of statutory construction to the text of the law, asserting that, because the plain text of Section 1324a of Title 8 of the United States Code (created by IRCA) does not mention state governments, the law does not apply to state governments. The statute states that it is unlawful “for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States” an unauthorized individual. (8 U.S.C. § 1324a(a)(a).) This section notably does not mention state governments. The definition provided in the statute for “a person” also does not mention a state government. While the statute does not define “entity,” amendments subsequent to the original enactment of Section 1324a specified that an entity “includes any entity in any branch of the Federal Government.” (8 U.S.C. § 1324a(a)(7). The legal concept relied upon by the 2022 memorandum here is the expression unius est exclusion alterius canon of statutory interpretation, in that the inclusion of the Federal Government and the exclusion of state governments reinforces the inference that state governments are to be treated differently. (Ford v. United States, (1927) 273 U.S. 593, 611.) The 2022 memorandum also points to the fact that the law that amended Section 1324a to include the Federal Government added an explicit mention of state or local governments in a different section of the Immigration and Nationality Act (INA), thereby evidencing that Congress at that time knew to specify state governments if it intended to include them in a particular provision.

The memorandum makes a number of other observations to support this reasoning. The first is that various other federal statutes that apply to state governments include explicit references to state governments in their text; for example, Title VII of the Civil Rights Act of 1964 explicitly includes states in its definition of employer covered by its requirements, an inclusion specifically amended into the Act after its initial enactment. In another example cited by the memorandum, the Family Medical Leave Act (FMLA) applies to state governments because it explicitly lists state governments or any political subdivision thereof in its definition of employer for the purposes of the Act. (See, 29 U.S.C. § 2611(4)(A).) Even in the text of IRCA that does mention states, those provisions, the memorandum concludes, do not provide any clear statement or inference that the Act as a whole and its prohibition on the employment of undocumented workers in Section 1324a applies to state governments. For example, the provisions of IRCA regarding the employment verification system (e-verify) suggest that a state is not required to comply with the employment verification system, which regulations also reiterate. (See 8 U.S.C. § 1324a(a)(5); 8 C.F.R. § 274a(6)(a).)

The memorandum also argues that there are other legal reasons to believe that IRCA needed to clearly apply its provisions to state governments in order for them to actually apply. The first reason is because, if IRCA’s limitations on employment of undocumented persons applied to states, it would be dictating the criteria under which state governments may hire individuals into their own governments. This would implicate federalism and the balance of power between states and the federal government. The second reason is because IRCA regulates employment, which is an area traditionally of state control. While the federal government traditionally has primary authority over immigration law, IRCA and the proposal considered in the 2022 memorandum (and thus likewise AB 2586) deal with the regulation of employment, not immigration, because it involves the state government’s qualifications for and hiring of students already in the United States. Thus, due to the facts that Section 1324a deals with an area of traditional state control and implicates the balance of power between the state and the federal government, the plain-statement rule applies. This rule states that, “when Congress intends to alter the usual constitutional balance between the states and the federal government, it must make its intention to do so ‘unmistakably clear in the language of the statute.’” (Gregory v. Ashcroft, (1991) 501 U.S. 452, 460 (quoting Atascadero State Hospital v. Scanlon (1985) 473 U.S. 234, 242).) Because IRCA did not include an unmistakably clear, plain statement that it applies to state governments’ hiring of undocumented workers, it cannot be read to do so. The memorandum argues that the concepts of federalism and states’ traditional areas of control, as supported by precedent, require the conclusion that IRCA does not reach the state government’s decision to hire individuals regardless of immigration status.

1. The concerns raised by the UC

The UC, while not opposed to AB 2586, has expressed similar concerns to it as UC President Michael Drake expressed regarding the UC’s 2022 proposal. These concerns are that the bill would risk: the exposure of undocumented UC students and their families to criminal prosecution or deportation; the possibility of UC employees being prosecuted for participating in the hiring of undocumented students; the imposition of civil fines and other financial consequences for the universities; and the potential loss of federal contracts and grants. However, it is unclear from the UC’s letter what specific contracts or federal funds AB 2586 would threaten, and any enforcement or punitive action taken on by the federal government likely would challenge the validity of AB 2586 first. Considering the above-described legal arguments, successfully showing that the state violated IRCA may be a tall order. Additionally, as the power to dictate the qualifications of their employees is traditionally a power of the state, a suit or enforcement action by the federal government would raise serious questions of federalism and the states’ rights in relation to a limited federal government.

Moreover, regarding the UC’s concern about risks of prosecution against its own employees, legal precedent limits the degree to which a state employee can be liable in a lawsuit. Specifically, when a plaintiff sues a state official for a violation of federal law, the Eleventh Amendment of the United States Constitution requires that a court may only award injunctive relief against the official’s future conduct, but may not award retroactive monetary relief. (Pennhurst State School & Hospital v. Halderman, (1984) 465 U.S. 89, 102.) Furthermore, whatever action a state employee takes in implementing AB 2586’s program for hiring undocumented students, they would be doing so at the direction of the state. Thus, while it is possible that the state or a state employee in their official capacity would be sued, such a suit could only possibly request injunctive relief to enjoin the implementation of the law itself.

The last argument that the UC makes is that AB 2586 presents a risk to undocumented students and their families. This concern warrants consideration, but should be assuaged with thorough reflection. Firstly, undocumented individuals already face risks related to immigration enforcement actions by the federal government: any individual residing in the United States without permission from the federal government is at risk of being provided a Notice to Appear and placed into deportation proceedings by the Department of Homeland Security (DHS). AB 2586 does not change that risk. Moreover, while this risk exists, DHS’s capacity for enforcement is limited, and many undocumented individuals live in the United States for years and decades without ever being placed into deportation proceedings. AB 2586 does not change this or the fact that DHS’s ability to enforce immigration laws is limited.

Part of the concern regarding this risk may stem from concerns about the federal government’s access to undocumented students’ information should those students become employees at the UC. It should first be noted that states are not required to comply with employment authorization verification, such that they do not need to provide the federal government with the Form I-9’s they have for their employees if they wish not to. (8 C.F.R. § 274a(6)(a).) Moreover, if the federal government were to request state employee data for the purposes of immigration enforcement, they would arguably be barred from requiring the state to provide that information under the “anti-commandeering” doctrine, in which Congress cannot conscript state officers to enforce federal laws. Recently, California’s SB 54 (De Leon, Ch. 495, Stats. 2017), which limits local law enforcement agencies’ sharing of inmate information with federal immigration agencies, was upheld by the Ninth Circuit under the anti-commandeering doctrine, and the United States Supreme Court refused to disturb that decision. (United states v. California (2019) 921 F.3d 865; United States v. California (2020) 141 S. Ct. 124.) Thus, under the anti-commandeering doctrine, the state’s universities are not required to assist the federal government in any immigration enforcement, and the state may also adopt laws, like SB 54, to ensure certain levels of protection for undocumented employee information.

Undocumented students must regularly consider the risks of providing their information to government entities. This is not something new to many undocumented students or to the universities; whether it be applying for DACA, in which a student must submit their information directly to DHS, or applying for an AB 60 drivers’ license or for the California Dream Act. And while the risks may vary some by Presidential Administrations, that risk exists regardless of the Administration.

Lastly, there may be a concern that a student’s future immigration status may be at risk if they choose to work under the provisions of this bill. It is true that unauthorized employment can affect an individual’s eligibility for some immigration statuses. For example, a requirement for some green cards through the process of adjustment of status – where a green card applicant completes the process from within the United States because they previously had or currently have some form of immigration status, and now qualify for a green card and meet various other requirements for adjustment of status – requires that the applicant never have worked without authorization. (8 U.S.C. 1255(c).) However, for many types of green cards, such as for a green card through marriage to a United States citizen, this prohibition to adjustment of status for unauthorized employment does not apply. With appropriate advice and notice from the universities and an immigration attorney, such as one of the immigration attorneys at the UC Immigrant Legal Services Center and other organizations that serve most of California’s UC, CSU, and Community College campuses, undocumented students can make an informed decision about accepting employment from a state university and the potential impacts doing so may have on their future eligibility for immigration status.

While the UC raises concerns about the consequences of AB 2586’s program, there are strong arguments for why those concerns should not pose the significant threat to the state or the state’s undocumented students that the UC asserts that they do. Moreover, many of the concerns rest on the presumption that undocumented students on state campuses cannot make the best, informed choices about assuming any risk that may exist for themselves. Many of the state’s undocumented university students have been at the forefront of organizing and pushing for AB 2586 and similar proposals, and they have the agency to make individual choices for themselves about employment, if the state and its universities will allow them the opportunity.

1. Arguments in support

According to the Undocumented Student-Led Network, which is the sponsor of AB 2586:

All students in California deserve the opportunity to obtain an affordable college education in pursuit of the California Dream, regardless of immigration status. In the past decade, California has supported undocumented students and individuals by expanding Medi-Cal and allowing California IDs for all. These are just a few of the State’s efforts in ensuring undocumented individuals are supported. California must continue to support them.

Currently, California colleges and universities enroll over 82,000 undocumented students, many of whom do not qualify for Deferred Action for Childhood Arrivals (DACA) status, and thus have been unjustly barred from opportunities on campus. This widens an existing equity gap between them and their peers and prevents many undocumented students from being able to continue to pursue higher education. Additionally, many undocumented students are left unemployed during their college years and following graduation, forcing them to miss out on critical career development opportunities. Therefore, as the nation waits for the federal government to develop a pathway to citizenship, and thus employment opportunities, it is vital that California lead the way in protecting and supporting undocumented students in reaching

their college and career dreams.

Though California universities have taken steps towards providing other forms of financial and career support for undocumented students, none of these alternatives– namely fellowships– are sufficient or impactful like providing on-campus employment. Fellowships affect the financial aid package of undocumented students and students often face significant issues with the disbursement of these funds. The resources, funding, and staffing capacity on each campus also affects the quality and quantity of fellowship programs for undocumented students, thus not all fellowships are equitable across universities. Moreover, at their core, these alternatives represent an embrace of inequity and difference for California’s undocumented students, despite the fact that they pay and contribute to their universities and communities as much as their peers with legal status. No California university has yet to develop any meaningful alternative that is equitable to the experience of full employment. As such, it is critical that California heed its call to embrace and provide equal opportunities for all California residents to thrive. It is that mission and charge we believe is at the center of Assembly Bill 2586.

Notable legal scholars have identified that the federal prohibition on hiring undocumented people (the Immigration Reform and Control Act of 1986 (IRCA)) does not apply to state governments when they act as employers, like California’s higher education systems. This means that the University of California, California State University, and the California Community Colleges can authorize the hiring of all their undocumented students. See 8 U.S.C. 1324a(a)(1), (a)(7). Under governing U.S. Supreme Court precedent, if Congress seeks to legislate in an area of traditional state control, it must mention the states explicitly if it wishes to bind them. The rules governing whom states can hire as their own employees are an area of traditional state control. Because nothing in 8 U.S.C. 1324a expressly binds or even mentions state governments or their branches, it does not bind them.

AB 2586 has the potential to set a precedent across the nation as we navigate an ever-increasingly uncertain federal landscape in 2024 and beyond. This bill will allow states across the nation to follow our lead in combating racist, anti-immigrant policies that threaten the livelihood of millions of undocumented individuals across the nation each day.

1. Arguments in opposition

According to the University of California, which expresses the following concerns but has not taken a position on AB 2586:

While the University supports the author’s aim to provide equitable student employment opportunities, there are outstanding concerns about AB 2586 and how to implement such a policy. Those concerns include:

• The exposure of our undocumented students and their families to the possibility of criminal prosecution or deportation;
• The possibility of employees involved in the hiring process (i.e., faculty, human resources, and legal professionals) being subject to criminal or civil prosecution if they knowingly participate in practices deemed impermissible under federal law;
• Civil fines, criminal penalties, or debarment from federal contracting if the University is in violation of the Immigration Reform and Control Act (IRCA); and
• The potential loss of billions of dollars in existing federal contracts and grants that are conditional on IRCA compliance.

Unfortunately, AB 2586 does not protect our undocumented students or employees from prosecution, nor does it protect the University from the risk of potentially losing billions in federal dollars.

While the University is not opposed to AB 2586, or the goal to provide employment opportunities to undocumented students, we share the concerns above because we would welcome working with the author and Legislature on other legal options to support these students.

SUPPORT

Undocumented Student-led Network (sponsor)

CFT- a Union of Educators & Classified Professionals, Aft, AFL-CIO (co-sponsor)

ACLU California Action

Alliance for A Better Community

Cal State Student Association

California Faculty Association

California Immigrant Policy Center

California Labor Federation, AFL-CIO

California School Employees Association

California State Student Association

California State University Employees Union (CSUEU)

California Teachers Association

California Undocumented Higher Education Coalition

Campaign for College Opportunity

Coalition for Humane Immigrant Rights (CHIRLA)

Friends Committee on Legislation of California

Grace Institute - End Child Poverty in Ca

Immigrants Rising

Los Angeles United Methodist Urban Foundation

Southern California College Attainment Network

Student Senate for California Community Colleges

uAspire

UC Merced Young Democratic Socialists of America

UC Student Association

University of California Student Association

Eight individuals

OPPOSITION

None received

RELATED LEGISLATION

Pending Legislation: None known.

Prior Legislation:

AB 278 (Reyes, Ch. 424, Stats. 2023) established the Dream Resource Center Grant Program to provide students, including undocumented students, in California high schools with specified resources.

SB 633 (Gonzalez, Ch. 622, Stats. 2023) created the California DREAM Grant Program to provide grants to certain students attending a UC or CSU campus, and allowed the UC and CSU to fund the program using unspent California DREAM Loan Program funds.

SB 354 (Durazo, Ch. 526, Stats. 2019) expanded the provisions of the DREAM Loan Program to include eligible graduate students seeking a graduate or professional degree.

SB 1210 (Lara, Ch. 754, Stats. 2014) established the California DREAM Loan Program to assist undocumented students at UC and CSU campuses in financing their education. The California DREAM Loan Program is an affordable loan option that is offered to AB 540 students to assist in financing their education.

AB 131 (Cedillo, Ch. 604, Stats. 2011) provided students with AB 540 status eligibility for state financial aid such as the Cal Grant, and charged the California Student Aid Commission (CSAC) with establishing and administering procedures and forms to enable eligible undocumented students access to state aid. As a result, CSAC developed the California Dream Act Application.

AB 540 (Firebaugh, Ch. 814, Stats. 2001) provided undocumented students entering California public universities with in-state tuition when they have attended a California high school for at least three years, have graduated from a California high school or equivalent, and met other requirements.

PRIOR VOTES:

Assembly Floor (Ayes 59, Noes 4)

Assembly Appropriations Committee (Ayes 11, Noes 4)

Assembly Higher Education Committee (Ayes 8, Noes 2)

**************

1. American Immigration Council and Presidents’ Alliance on Higher Education and Immigration, “Fact Sheet: Undocumented Students in Higher Education: How Many Students Are in U.S. Colleges and Universities, and Who Are They?” (Aug. 2023) (hereafter American Immigration Council). ↑

2. Id. ↑

3. Higher Ed Immigration Portal, “California” (accessed Jun 13, 2024), available at https://www.higheredimmigrationportal.org/state/california/. ↑

4. American Immigration Council, supra note 1. ↑

5. Migration Policy Institute, “Deferred Action for Childhood Arrivals (DACA) Data Tools,” (Dec. 2023), available at https://www.migrationpolicy.org/programs/data-hub/deferred-action-childhood-arrivals-daca-profiles/. ↑

6. U.S. Citizenship & Immigr. Svcs., “Consideration of Deferred Action for Childhood Arrivals (DACA),” U.S. Dept. of Homeland Sec. (Apr. 8, 2024), available at https://www.uscis.gov/DACA. ↑

7. See U.S. Citizenship & Immigr. Svcs., “DACA Litigation Information and Frequently Asked Questions,” U.S. Dept. of Homeland Sec. (Sept. 18, 2023), available at https://www.uscis.gov/humanitarian/consideration-of-deferred-action-for-childhood-arrivals-daca/daca-litigation-information-and-frequently-asked-questions. ↑

8. Adulfo Guzman-Lopez, “UC Pledged to Let Undocumented Students Get Jobs, Then Changed Course. What Happened, and What’s Next,” LAist (Apr. 24, 2024), available at https://laist.com/news/education/uc-pledged-to-let-undocumented-students-get-jobs-then-changed-course-whats-next. ↑

9. Ahilan Arulanantham et al, Memorandum Analyzing IRCA Applies to States, UCLA Center for Immigration Law and Policy (Oct. 2022). ↑

10. UC Office of the President, “UC President Michael V. Drake, M.D. Remarks at January 25 Regents Meeting,” (Jan. 25, 2024), available at https://www.universityofcalifornia.edu/press-room/uc-president-michael-v-drake-md-remarks-january-25-regents-meeting. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 2586

Author:(Alvarez)

As Amended Ver:April 1, 2024

Majority vote

SUMMARY

Prohibits the University of California (UC), California State University (CSU), or California Community College (CCC) from disqualifying a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except where that proof is required by federal law or where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.

Major Provisions

1. Specifies that the UC, CSU, or CCC must not disqualify a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except in either of the following cases:
   1. Where that proof is required by federal law; and,
   2. Where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.
2. Establishes that, for purposes of this bill, the UC, the CSU, and the CCC will treat the federal prohibition on hiring undocumented noncitizens, as specified, as inapplicable because that provision does not apply to any branch of state government.
3. Specifies that, to the extent student employment is considered a "benefit" for purposes of federal law, these provisions will constitute authorization to provide that benefit, as specified.
4. Requires the UC, CSU, and the CCC to implement the provisions of this legislation by January 6, 2025.
5. Specifies that the provisions of this legislation will apply to the UC, unless it is found to be inapplicable to the UC, then, consistent with existing law, this article will apply to the UC only to the extent that the Regents of the UC, by appropriate resolution, make it applicable.
6. Establishes that, if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs will be made, as specified.

COMMENTS

Background. The state has demonstrated a commitment to undocumented students by qualifying them for state aid programs that help make college more attainable. AB 540 (Firebaugh), Chapter 814, Statutes of 2001, and successor legislation has created a nonresident tuition exemption for certain students, including undocumented students, from paying nonresident tuition (higher than resident tuition) and/or allows them to apply and receive state aid at certain California public and private colleges. Since the enactment of AB 540, several legislative measures have modified or expanded eligibility for the exemption from nonresident tuition in order to better accommodate the diverse student population.

Existing employment challenges. On June 15, 2012, the U.S. Department of Homeland Security (DHS) announced that it would not deport certain undocumented youth who came to the United States as children. Under a directive from the DHS secretary, these youth may be granted a type of temporary permission to stay in the U.S. called "deferred action." This program became called Deferred Action for Childhood Arrivals (DACA).

In September of 2017 DACA was rescinded, a decision that placed millions of Californians at risk of losing their protection from deportation and work authorization that allowed them to be employed. Since the rescinding of the program several federal courts have provided rulings that have allowed current DACA recipients to continue to enroll in the program, however one of the federal court cases is currently pending at the Fifth Circuit Court of Appeals.

These rulings have impacted current students, where multiple incoming classes have entered that are ineligible to receive DACA and work authorization. These students have limited access to career-relevant and sustainable work opportunities during college and after graduation. Additionally, many of these students do not qualify for critical safety net programs like CalFresh.

Segmental concerns. The UC does not have a position on AB 2586, but did send a letter of concern. In their letter they identified numerous potential issues that could come with hiring undocumented students. These include:

1. The exposure of UC's undocumented students and their families to the possibility of criminal prosecution or deportation;
2. The possibility of employees involved in the hiring process like faculty, human resources, and legal professionals being subject to criminal or civil prosecution if they knowingly participate in practices deemed impermissible under federal law;
3. Civil fines, criminal penalties, or debarment from federal contracting if the UC is in violation of the Immigration Reform and Control Act (IRCA); and
4. The potential loss of billions of dollars in existing federal contracts and grants that are conditional on IRCA compliance.

Committee Staff also understands from communications with the CCC Chancellor's Office (CCCCO) that it is unclear to the CCCCO if local community college districts can be considered state entities. They note that there are specific requirements in existing law stipulating how community college districts are formed, which are determined by local county committees on school district organization.

The CCCCO also wrote that it would be exceptionally difficult for the CCC Board of Governors to adopt regulations implementing the provisions of AB 2586 (Alvarez) of the current legislative session by January 6, 2025, given the extensive consultative and public comments process that is required by state law.

UCLA legal analysis and UC Regents' actions. The UC has been considering taking action on student employment for several years. As part of these efforts the UCLA Center for Immigration Law and Policy published a memorandum in September of 2022 analyzing whether the federal IRCA applies to states. In their memorandum it is asserted that "Nothing in 8 U.S.C. [Section] 1324a or anywhere else in IRCA comes close to meeting the U.S. Supreme Court's requirement of a clear statement that binds states. In stark contrast to IRCA, other federal statutes that do bind states mention them explicitly. These statutes include, among others, the Fair Labor Standards Act, the Family and Medical Leave Act, and the Age Discrimination in Employment Act."

"In short, when Congress passed IRCA, Congress did not curtail states' historic power to determine the employment qualifications of state employees. As a result, IRCA's prohibition on hiring undocumented persons does not bind state government entities. State entities can lawfully hire undocumented students irrespective of employment authorization status under federal law.

And as the U.S. Supreme Court recognized long ago, California law provides definitively that the UC system is part of the State of California."

On May 18, 2023, the UC Regents adopted Regents Policy 4407, which stated that, in order to pursue the goal that all persons who are enrolled as UC students should have equal access to UC employment opportunities, the Chair of the Board of Regents would convene a Regents working group to work with the President of the UC to determine next steps.

On January 25, 2024, the UC Regents passed a motion on a 10-6 vote to suspend implementation of Regents Policy 4407 for one year, delaying the internal effort to create employment opportunities for students. In their letter of concern to the Committee, the UC wrote that "last year, a working group of the Regents of the [UC] studied this issue and sought a legal path forward. However, after receiving advice from both inside and outside legal counsel, we concluded that there were considerable risks for the University and the students we aim to support. This led the Regents to postpone further action until next year while we continue to examine ways to expand undocumented students' access to equitable educational experiences."

The core question of this bill centers on the interpretation of federal law on employment that is inherently outside of the jurisdiction and expertise of this of this Committee. The author makes a compelling argument based on the expert assessment of scholars in their field – yet the UC's lack of action on this issue following their own legal review calls into question the potential ramifications to students and staff. It is clear that, according to CSAC's 2023 report Renewing the Dream – Improving Financial Aid & College Affordability for California's Undocumented Students, there are over 75,000 AB 540 students in the UC, CSU, and CCC and virtually none of them can rely on DACA for employment eligibility – a major change from the experience of similar students only a few years prior.

According to the Author

According to the author, "America has always promised that if you work hard, you will have the opportunity to succeed. Undocumented students have fulfilled their obligation and are ready to be our future teachers, scientists, doctors, and public servants. This bill will provide them with the opportunity to be employed by their campus to earn the financial means as they work towards completing their degrees."

"California's higher education systems now have an opportunity to remove barriers to employment for all students, regardless of immigration status. Legal scholars have identified that the federal prohibition on hiring undocumented people (the Immigration Reform and Control Act of 1986 (IRCA)) does not apply to state governments when they act as employers, like California's higher education systems. This means that the [UC], [CSU], [CCC] can authorize the hiring of all their undocumented students."

"California has the opportunity to continue to serve as a model for the rest of the Nation. By allowing undocumented students to be eligible for work opportunities, California will ensure all students have equal access to the opportunities they need to provide financially for themselves and work to obtain their degrees. Only then can our state truly maintain its status as an economic powerhouse and the place where the nation's future is invented."

Arguments in Support

According to the California State Student Association, "California has been a leader in the nation in providing education to students, with grants, loans, and scholarships available to undocumented students pursuing their higher education dreams. According to an estimate from the American Communities Survey, California boasts the highest count of undocumented college students, with approximately 83,000 individuals across systems. While the [CSU] does not officially track the number of enrolled undocumented students or DACA recipients, a press release put out from the [CSU] Chancellor's Office in March 2024 estimated that there were more than 8,500 undocumented students across the system. In most cases, undocumented students are unable to work unless they possess DACA status, with exceptions being rare. AB 2586 would open doors for students, regardless of immigration status, to continue to pursue their higher education dreams while being eligible for work opportunities on campus."

The California Labor Federation also wrote in support, noting that "The restriction on the unemployment of undocumented immigrant youth by our state higher education systems is due to an incorrect interpretation of the Immigration Reform and Control Act (IRCA) of 1986. To the contrary, legal scholars have identified that the federal prohibition on hiring undocumented people does not apply to state governments when they act as employers, like California's higher education systems. This means that the [UC], [CSU], and [CCC] can authorize the hiring of all their undocumented students."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Assembly Committee on Appropriations:

1. Potentially significant one-time General Fund costs, potentially in the mid-hundreds of thousands of dollars, and potentially significant losses of federal funding to UC and CSU. General Fund costs would be for campuses to implement the requirements of the bill and for potential litigation costs, should legal challenges occur. Both UC and CSU state concerns over whether this bill could result in the loss of billions of dollars in federal funding, should the federal government withdraw its funding to UC and CSU as a result of this bill.
2. One-time Proposition 98 General Fund costs, potentially in the millions of dollars, for CCCs to implement the requirements of this bill. This estimate assumes costs between $13,000 and $21,000 for each of the CCC's 72 districts, totaling between $936,000 and $2.4 million statewide. In addition, potential Proposition 98 General Fund costs related to litigation and potential loss of federal funds.

VOTES

ASM HIGHER EDUCATION: 8-2-1

YES: Mike Fong, Arambula, Boerner, Irwin, Jackson, Low, Muratsuchi, Quirk-Silva

NO: Ta, Essayli

ABS, ABST OR NV: Chen

ASM APPROPRIATIONS: 11-4-0

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Sanchez, Dixon, Jim Patterson, Ta

UPDATED

VERSION: April 1, 2024

CONSULTANT: Kevin J. Powers / HIGHER ED. / (916) 319-3960 FN: 0003200

Date of Hearing: May 1, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2586

Author:(Alvarez) – As Amended Ver:April 1, 2024

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill, beginning January 6, 2025, prohibits the University of California (UC), California State University (CSU), and the California Community College (CCC) from disqualifying a student from being hired for employment at the university or college due to a student’s failure to provide proof of federal work authorization, unless proof of federal work authorization is (a) required by federal law or (b) as a condition of a grant that funds the position to which the student has applied.

Specifically, the bill requires UC, CSU, and CCC to treat prohibitions in federal law on hiring undocumented noncitizens as inapplicable, and states the prohibitions do not apply to branches of state government. The bill also requires UC to comply with this prohibition to the extent that the Regents of the UC make it applicable by appropriate resolution.

FISCAL EFFECT:

1. Potentially significant one-time General Fund costs, potentially in the mid-hundreds of thousands of dollars, and potentially significant losses of federal funding to UC and CSU. General Fund costs would be for campuses to implement the requirements of the bill and for potential litigation costs, should legal challenges occur. Both UC and CSU state concerns over whether this bill could result in the loss of billions of dollars in federal funding, should the federal government withdraw its funding to UC and CSU as a result of this bill.
2. One-time Proposition 98 General Fund costs, potentially in the millions of dollars, for CCCs to implement the requirements of this bill. This estimate assumes costs between $13,000 and $21,000 for each of the CCC’s 72 districts, totaling between $936,000 and $2.4 million statewide. In addition, potential Proposition 98 General Fund costs related to litigation and potential loss of federal funds.

If the Commission on State Mandates determines the bill’s requirements to be a reimbursable state mandate, the state would need to reimburse these costs to CCCs.

According to the Legislative Analyst’s Office, the General Fund faces a structural deficit in the tens of billions of dollars over the next several fiscal years.

COMMENTS:

1. Purpose. According to the author:

Legal scholars have identified that the federal prohibition on hiring undocumented people (the Immigration Reform and Control Act of 1986 (IRCA)) does not apply to state governments when they act as employers, like California’s higher education systems…California has the opportunity to continue to serve as a model for the rest of the Nation. By allowing undocumented students to be eligible for work opportunities, California will ensure all student have equal access to the opportunities they need to provide financially for themselves and work to obtain their degrees.

1. Background. The Legislature has created various forms of financial assistance to support undocumented postsecondary students, such as providing to undocumented students in-state tuition rates, access to state financial aid, and access to a state student loan programs.

In 2012, the U.S. Department of Homeland Security announced certain undocumented youth who came to the United States as children would be eligible for temporary permission to stay in the U.S. under the newly created Deferred Action for Childhood Arrivals (DACA) authorization. In addition to permission to stay in the U.S., DACA recipients also were eligible for work authorizations.

In 2017, the federal government rescinded DACA. Since the rescinding of the program, several federal courts have provided rulings that allowed current DACA recipients to continue to enroll in the program. However, the vast majority of undocumented students enrolled in California’s colleges and universities did not hold DACA authorization at the time of rescinding and therefore do not hold DACA work authorization.

On May 18, 2023, the UC Regents adopted Regents Policy 4407, which stated that, in order to pursue the goal that all persons who are enrolled as UC students should have equal access to UC employment opportunities, the Chair of the Board of Regents would convene a Regents working group to work with the President of the UC to determine next steps.

On January 25, 2024, the UC Regents passed a motion on a 10-6 vote to suspend implementation of Regents Policy 4407 for one year, delaying the internal effort to create employment opportunities for students. In their letter of concern to the Assembly Higher Education Committee, the UC wrote:

Last year, a working group of the Regents of the [UC] studied this issue and sought a legal path forward. However, after receiving advice from both inside and outside legal counsel, we concluded that there were considerable risks for the University and the students we aim to support. This led the Regents to postpone further action until next year while we continue to examine ways to expand undocumented students’ access to equitable educational experiences.

This bill prohibits UC, CSU, and CCC to disqualifying a student from being hired for employment due to the student’s failure to provide proof of federal work authorization, except in certain instances.

Analysis Prepared by: Natasha Collins / APPR. / (916) 319-2081

Date of Hearing: April 9, 2024

ASSEMBLY COMMITTEE ON HIGHER EDUCATION

Mike Fong, Chair

ABPCA Bill Id:AB 2586 (

Author:Alvarez) – As Amended Ver:April 1, 2024

SUBJECT: Public postsecondary education: student employment

SUMMARY: Prohibits the University of California (UC), California State University (CSU), or California Community College (CCC) from disqualifying a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except where that proof is required by federal law or where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied. Specifically, this bill:

1. Specifies that the UC, CSU, or CCC must not disqualify a student from being hired for an employment position due to their failure to provide proof of federal work authorization, except in either of the following cases:
   1. Where that proof is required by federal law; and,
   2. Where that proof is required as a condition of a grant that funds the particular employment position for which the student has applied.
2. Establishes that, for purposes of this bill, the UC, the CSU, and the CCC will treat the federal prohibition on hiring undocumented noncitizens, as specified, as inapplicable because that provision does not apply to any branch of state government.
3. Specifies that, to the extent student employment is considered a “benefit” for purposes of federal law, these provisions will constitute authorization to provide that benefit, as specified.
4. Requires the UC, CSU, and the CCC to implement the provisions of this legislation by January 6, 2025.
5. Specifies that the provisions of this legislation will apply to the UC, unless it is found to be inapplicable to the UC, then, consistent with existing law, this article will apply to the UC only to the extent that the Regents of the UC, by appropriate resolution, make it applicable.
6. Establishes that, if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs will be made, as specified.

EXISTING LAW:

State law

1. Establishes the UC as a public trust to be administered by the Regents of the UC; and, grants the Regents full powers of organization and government, subject only to such legislative control as may be necessary to insure security of its funds, compliance with the terms of its endowments, statutory requirements around competitive bidding and contracts, sales of property and the purchase of materials, goods and services. (Article IX, Section (9)(a) of the California Constitution)
2. Confers upon the CSU Trustees the powers, duties, and functions with respect to the management, administration, control of the CSU system and provides that the Trustees are responsible for the rule of government of their appointees and employees. (Education Code (EDC) Sections 66606 and 89500, et seq.)
3. Establishes the CCC under the administration of the Board of Governors of the CCC, as one of the segments of public postsecondary education in this state, and specifies that the CCC is comprised of community college districts. (EDC Section 70900)
4. Establishes the California Student Aid Commission (CSAC) for the purpose of administering specified student financial aid programs (EDC Section 69510, et seq.).
5. Authorizes, beginning January 1, 2013, AB 540 students to be eligible to apply for, and participate in, any student financial aid program administered by the State of California to the full extent permitted by federal law (EDC Section 66021.6).
6. Authorizes, AB 540 students attending UC, CSU, or the CCC to be eligible to receive a scholarship derived from nonstate funds, as received by the respective segment for the purpose of scholarships (EDC Section 66021.7).
7. Establishes the DREAM Loan Program at UC and CSU campuses that elect to participate in the program. Under the program, an AB 540 student meeting specified requirements, including demonstrating financial need, may obtain a loan of up to $4,000 per academic year, up to a maximum of $20,000 as an undergraduate student. No more than $20,000 as a graduate students. The repayment term for the loan is 10 years, and repayment commences following a six-month grace period beginning when the student graduates or ceases to maintain at least half-time enrollment. Eligibility for deferment or forbearance of loan repayments is consistent with the federal direct student loan program (EDC Section 70033).
8. Requires, by January 1, 2020, a UC and the CSU campuses participating in the state DREAM Loan Program to adopt procedures allowing a borrower to select an income-based repayment plan for the repayment of a DREAM Loan (EDC Section 70034 (d)).
9. Requires the annual Budget Act to allocate funding to participating institutions based on the number of AB 540 students who applied for state financial aid in the prior academic year. Participating institutions must at least match the state allocation using the institution's discretionary funds. Both the state and local funding is deposited into a DREAM revolving fund. Loan repayments are also deposited into the revolving fund and are intended to reduce the annual state and campus contributions equally (EDC Section 70035).

Federal law

1. Requires, under federal law, an employer to verify, through examination of specified documents, whether an individual may work in the United States. (8 U.S.C. Section 1324a.)

FISCAL EFFECT: Unknown

COMMENTS: Purpose. According to the author, “America has always promised that if you work hard, you will have the opportunity to succeed. Undocumented students have fulfilled their obligation and are ready to be our future teachers, scientists, doctors, and public servants. This bill will provide them with the opportunity to be employed by their campus to earn the financial means as they work towards completing their degrees.”

“California’s higher education systems now have an opportunity to remove barriers to employment for all students, regardless of immigration status. Legal scholars have identified that the federal prohibition on hiring undocumented people (the Immigration Reform and Control Act of 1986 (IRCA)) does not apply to state governments when they act as employers, like California’s higher education systems. This means that the [UC], [CSU], [CCC] can authorize the hiring of all their undocumented students.”

“California has the opportunity to continue to serve as a model for the rest of the Nation. By allowing undocumented students to be eligible for work opportunities, California will ensure all students have equal access to the opportunities they need to provide financially for themselves and work to obtain their degrees. Only then can our state truly maintain its status as an economic powerhouse and the place where the nation’s future is invented.”

Background. The state has demonstrated a commitment to undocumented students by qualifying them for state aid programs that help make college more attainable. AB 540 (Firebaugh), Chapter 814, Statutes of 2001, and successor legislation has created a nonresident tuition exemption for certain students, including undocumented students, from paying nonresident tuition (higher than resident tuition) and/or allows them to apply and receive state aid at certain California public and private colleges. Since the enactment of AB 540, several legislative measures have modified or expanded eligibility for the exemption from nonresident tuition in order to better accommodate the diverse student population.

In 2011, AB 131 (Cedillo), Chapter 604, Statutes of 2011, allowed students with AB 540 status to apply and be eligible for state financial aid such as the Cal Grant. AB 131 also charged CSAC with establishing and administering procedures and forms to enable eligible undocumented students' access to state aid. As a result, CSAC developed the California Dream Act Application (CADAA) and made it available to students in fall 2012.

In 2014 the Legislature enacted SB 1210 (Lara), Chapter 754, Statutes of 2014, which established the California DREAM Loan Program, an affordable loan option that is offered at UC and CSU for undergraduate AB 540 students to assist in financing their education. The loan was designed to mirror federal student loan programs with including provisions that placed a cap on loan amounts and low interest rates. This Program serves undocumented AB 540 students at the UC and CSU who, under the terms of the California Dream Act, became eligible for State and institutional grant programs but are ineligible for federal student loan programs. A student can borrow up to $4,000 annually not to exceed $40,000 in the aggregate.

In 2019, the Legislature enacted SB 354 (Durazo), Chapter 526, Statutes of 2019, which expanded the provisions of the DREAM Loan Program to include eligible graduate students seeking a graduate or professional degree program.

In 2023, the Legislature enacted SB 633 (Gonzalez), Chapter 622, Statues of 2023, creating the California DREAM Grant Program to provide grants to certain students attending a UC or CSU campus and allows UC and CSU to fund the program using unspent California DREAM Loan Program funds.

Existing employment challenges. On June 15, 2012, the U.S. Department of Homeland Security (DHS) announced that it would not deport certain undocumented youth who came to the United States as children. Under a directive from the DHS secretary, these youth may be granted a type of temporary permission to stay in the U.S. called “deferred action.” This program became called Deferred Action for Childhood Arrivals (DACA).

In September of 2017 DACA was rescinded, a decision that placed millions of Californians at risk of losing their protection from deportation and work authorization that allowed them to be employed. Since the rescinding of the program several federal courts have provided rulings that have allowed current DACA recipients to continue to enroll in the program, however one of the federal court cases is currently pending at the Fifth Circuit Court of Appeals.

These rulings have impacted current students, where multiple incoming classes have entered that are ineligible to receive DACA and work authorization. These students have limited access to career-relevant and sustainable work opportunities during college and after graduation. Additionally, many of these students do not qualify for critical safety net programs like CalFresh.

Arguments in support. According to the California State Student Association, “California has been a leader in the nation in providing education to students, with grants, loans, and scholarships available to undocumented students pursuing their higher education dreams. According to an estimate from the American Communities Survey, California boasts the highest count of undocumented college students, with approximately 83,000 individuals across systems. While the [CSU] does not officially track the number of enrolled undocumented students or DACA recipients, a press release put out from the [CSU] Chancellor’s Office in March 2024 estimated that there were more than 8,500 undocumented students across the system. In most cases, undocumented students are unable to work unless they possess DACA status, with exceptions being rare. AB 2586 would open doors for students, regardless of immigration status, to continue to pursue their higher education dreams while being eligible for work opportunities on campus.”

The California Labor Federation also wrote in support, noting that “The restriction on the unemployment of undocumented immigrant youth by our state higher education systems is due to an incorrect interpretation of the Immigration Reform and Control Act (IRCA) of 1986. To the contrary, legal scholars have identified that the federal prohibition on hiring undocumented people does not apply to state governments when they act as employers, like California’s higher education systems. This means that the [UC], [CSU], and [CCC] can authorize the hiring of all their undocumented students.”

“We believe that AB 2586 is consistent with the state’s commitment to provide equitable access to advancement, affordability, equity, and success for all students. However, despite that commitment, undocumented students continue to be blocked from essential opportunities. Currently, thousands of students in California are unjustly barred from obtaining paying jobs on campus—including experiential jobs and jobs needed to complete their degrees. California has the opportunity to serve as a model for the rest of the nation to show our ability to truly provide support to our undocumented students.”

Segmental concerns. The UC does not have a position on AB 2586, but did send a letter of concern. In their letter they identified numerous potential issues that could come with hiring undocumented students. These include:

1. The exposure of UC’s undocumented students and their families to the possibility of criminal prosecution or deportation;
2. The possibility of employees involved in the hiring process like faculty, human resources, and legal professionals being subject to criminal or civil prosecution if they knowingly participate in practices deemed impermissible under federal law;
3. Civil fines, criminal penalties, or debarment from federal contracting if the UC is in violation of the Immigration Reform and Control Act (IRCA); and
4. The potential loss of billions of dollars in existing federal contracts and grants that are conditional on IRCA compliance.

Committee Staff also understands from communications with the CCC Chancellor’s Office (CCCCO) that it is unclear to the CCCCO if local community college districts can be considered state entities. They note that there are specific requirements in existing law stipulating how community college districts are formed, which are determined by local county committees on school district organization.

The CCCCO also wrote that it would be exceptionally difficult for the CCC Board of Governors to adopt regulations implementing the provisions of AB 2586 (Alvarez) by January 6, 2025, given the extensive consultative and public comments process that is required by state law.

UCLA legal analysis and UC Regents’ actions. The UC has been considering taking action on student employment for several years. As part of these efforts the UCLA Center for Immigration Law and Policy published a memorandum in September of 2022 analyzing whether the federal IRCA applies to states. In their memorandum it is asserted that “Nothing in 8 U.S.C. [Section] 1324a or anywhere else in IRCA comes close to meeting the U.S. Supreme Court’s requirement of a clear statement that binds states. In stark contrast to IRCA, other federal statutes that do bind states mention them explicitly. These statutes include, among others, the Fair Labor Standards Act, the Family and Medical Leave Act, and the Age Discrimination in Employment Act.”

“In short, when Congress passed IRCA, Congress did not curtail states’ historic power to determine the employment qualifications of state employees. As a result, IRCA’s prohibition on hiring undocumented persons does not bind state government entities. State entities can lawfully hire undocumented students irrespective of employment authorization status under federal law.

And as the U.S. Supreme Court recognized long ago, California law provides definitively that the UC system is part of the State of California.”

On May 18, 2023, the UC Regents adopted Regents Policy 4407, which stated that, in order to pursue the goal that all persons who are enrolled as UC students should have equal access to UC employment opportunities, the Chair of the Board of Regents would convene a Regents working group to work with the President of the UC to determine next steps.

On January 25, 2024, the UC Regents passed a motion on a 10-6 vote to suspend implementation of Regents Policy 4407 for one year, delaying the internal effort to create employment opportunities for students. In their letter of concern to the Committee, the UC wrote that “last year, a working group of the Regents of the [UC] studied this issue and sought a legal path forward. However, after receiving advice from both inside and outside legal counsel, we concluded that there were considerable risks for the University and the students we aim to support. This led the Regents to postpone further action until next year while we continue to examine ways to expand undocumented students’ access to equitable educational experiences.”

Committee Staff notes that the core question of this bill centers on the interpretation of federal law on employment that is inherently outside of the jurisdiction and expertise of this of this Committee. The author makes a compelling argument based on the expert assessment of scholars in their field – yet the UC’s lack of action on this issue following their own legal review calls into question the potential ramifications to students and staff.

While the legal question is one that is outside of this Committee’s jurisdiction, well within the Committee’s purview is a long-established history of taking meaningful action to alleviate the financial burdens facing undocumented students. It is clear that, according to CSAC’s 2023 report Renewing the Dream – Improving Financial Aid & College Affordability for California's Undocumented Students, there are over 75,000 AB 540 students in the UC, CSU, and CCC and virtually none of them can rely on DACA for employment eligibility – a major change from the experience of similar students only a few years prior.

REGISTERED SUPPORT / OPPOSITION:

Support

ACLU California Action

Alliance San Diego

California Federation of Teachers Afl-cio

California Immigrant Policy Center

California Labor Federation, Afl-cio

California State Student Association

Central American Resource Center – Carecen – of California

Coalition for Humane Immigrant Rights (CHIRLA)

Grantmakers Concerned With Immigrants and Refugees

Immigrants Rising

Individuals - (105)

Latino Democratic Club of Sacramento County

University of California Student Association

Opposition

None on file.

Analysis Prepared by: Kevin J. Powers / HIGHER ED. / (916) 319-3960