Two state bills would allow public colleges and universities to hire undocumented students, which is currently barred by federal law. The proposals are based on a legal theory that the law doesn’t apply to state agencies. colle

In January, the University of California Board of Regents broke the hearts of undocumented students by halting a proposal to allow them to work on campus. A few days later, David Alvarez had a plan.

The Democratic assemblymember from Chula Vista huddled with student organizers and decided to draft a bill to compel the UC, as well as the community colleges and California State University, to do what the UC regents would not.

Federal law prohibits employers from hiring anyone who is undocumented, but Alvarez’s Assembly Bill 2586 says California’s public colleges and universities should be exempt and allowed to hire undocumented students for on-campus jobs. The approach rests on an untested legal theory backed by law scholars at UCLA and 27 other prominent academics. It’s based on the argument that a pivotal federal employment law from 1986 doesn’t apply to state agencies, including public colleges and universities.

Assemblymember Sabrina Cervantes, a Corona Democrat and chair of the California Latino Legislative Caucus, has introduced a similar bill addressing just the UC that, if passed, would be taken to CA voters in the form of a ballot measure.

Both bills are priorities of the Latino Caucus.

“We wouldn’t have to do this if the federal government actually did their job and passed immigration reform,” said Alvarez in an interview with CalMatters.

Instead of working on-campus jobs like their peers, undocumented students must seek employment as independent contractors or find under-the-table jobs, where some students say labor exploitation is rampant. If Alvarez’s bill prevails, an estimated 60,000 undocumented students could benefit.

Last May, the UC Board of Regents promised to study the plan to allow undocumented students to work. In January, the regents reversed course, voting 10 to 6 to delay any implementation by a year. The decision gutted student advocates, who sobbed in the public meeting space, castigated the regents and reverted to an agonizing square one in which they lacked the legal right to work.

Assemblymember David Alvarez on the floor during the end session at the state Capitol in Sacramento on Sept. 14, 2023. Photo by Rahul Lal for CalMatters

Alvarez’s bill cleared its first hurdle in April, but it faces a bigger test tomorrow during an opaque legislative process known as the suspense file, in which members of the appropriations committee decide in relative secrecy whether bills with a price tag advance or die.

A committee analysis says the bill could cost California a few million dollars to implement these hiring changes and to handle the legal fees, should someone decide to sue a college or university for hiring undocumented students. Those costs could become a large obstacle as the state battles multi-year budget deficits in the tens of billions of dollars.

How much of an impact the bill would have on undocumented students is an open question: Most students — regardless of their immigration status — work off campus. Federal law is clear that private employers must follow the employment ban. The bills by Alvarez and Cervantes do not extend to the many other state agencies where undocumented students could work after graduation and earn competitive wages.

‘It is not fair’

For Alvarez, the bill is a continuation of California’s commitment to make college affordable for undocumented students. Already the state extends tuition waivers, grants and loans to these students, but they’re barred from receiving federal dollars. A campus job would allow them to cover the difference when financial aid falls short; it would help them with major expenses like housing, transportation and food.

“I’m out here fighting for the right to be given the opportunity to apply to a job on campus,” said Karely Amaya Rios in April to a panel of lawmakers. The 23-year-old is a graduate student at UCLA and has a pending job offer from a professor to help him write a book and teach his immigrant rights courses. Though she’s lived in the U.S. for more than 20 years, she’s undocumented and ineligible for the job. “It is not fair,” she said.

Rios previously told CalMatters that she cobbles together enough money to cover rent and food costs by babysitting and selling clothes at a swap meet with her mother. She also receives some scholarships and stipends.

“I fear that all of you do not understand how disappointing and gut-wrenching it feels to be denied my humanity and my right to access the same opportunities as my peers,” added Fatima Zeferino, an undocumented Cal State Long Beach student, at the April hearing.

Cervantes’ proposed constitutional amendment would target just the UC, a potentially necessary move because the UC is constitutionally independent. The Legislature’s bills can rarely force the system to do something.

Still, Alvarez’s office believes the UC “would be bound” by his bill, his district director, Lisa Schmidt, wrote in an email. She added that “even if it were not formally bound it would comply with the law once the Cal State and (community colleges) were doing so.”

Why public colleges are worried

The UC isn’t formally opposed to the bill, but its government relations office wrote a letter to lawmakers warning the bill could expose UC hiring managers to civil and criminal prosecution and jeopardize the billions of dollars in federal research grants the university receives. Alvarez bristled at one objection the UC raised: that the bill as law could expose “undocumented students and their families to the possibility of criminal prosecution or deportation.” He called that “borderline offensive to students” who already have to navigate the legal complexities of their immigration status outside of school.

Alvarez cited his own experience as a child born in the U.S. living in fear of what would happen to his undocumented parents. They were eventually granted legal status through the same 1986 federal law that now bars undocumented residents from working.

Hovering in plain sight is the concern that a potential Trump White House would wage an aggressive legal attack on the university. It would potentially repeat a judicial system showdown that saw the university successfully sue to block Trump’s attempts to end job protections for undocumented workers who came to the country when they were young. That previous legal saga involved the Obama-era Deferred Action for Childhood Arrivals (DACA) program, but federal courts have since halted the federal government’s ability to accept new applications.

“I fear that all of you do not understand how disappointing and gut-wrenching it feels to be denied my humanity and my right to access the same opportunities as my peers.”
— Fatima Zeferino, undocumented Cal State Long Beach student

The UC Office of the President never appeared persuaded by the legal argument put forward by the UCLA scholars. It sought outside legal opinion, and the conclusion was that the plan wouldn’t be “legally viable,” a regent told CalMatters in January.

UC’s April letter to legislators underscored that worry: “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.”

Ahilan Arulanantham, one of the two UCLA legal scholars behind the theory that state agencies are exempt from the federal rule barring undocumented residents from working, sought to assure lawmakers in April that no hiring manager could be prosecuted if universities began hiring undocumented students.

“The risk that people would actually be criminally prosecuted for following state law is, in my view, vanishingly small,” he said then. “And we’re not aware of any example where people have been criminally prosecuted by the federal government for following a law that they were required to follow as a matter of the state.”

“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.”
— Letter of the University of California to the Legislature on April 2024

More likely is that the state would be sued and the matter would play out in courts, Arulanantham said. “If the universities lost that lawsuit and they still kept trying to hire people, of course that would present a different question.”

The state’s attorney general would defend the campuses in those suits, Alvarez said. The press office of the attorney general wouldn’t comment on Arulanantham’s legal argument or whether the attorney general would defend the campuses in a possible suit.

Cal State has issued no position, though it reiterated another point the UC made: The bill “could have consequences on the federal aid the CSU and our students receive,” wrote Amy Bentley-Smith, a spokesperson for Cal State. The fear isn’t unfounded. When the UC system weighed the issue, Republican Congressman Darell Issa wrote a letter to Gov. Gavin Newsom asking that he “please inform Congress how the system intends to refund its current federal funding, as well as provide a detailed estimate of the fiscal impact to students by foregoing future federal assistance.”

Can community college students benefit?

While the legal risk of the bill looms large, the impact of the legislation on undocumented students may be limited in scope. That’s because the majority of undocumented students attend community college. The Cal State system has fewer undocumented students, and the UC campuses have the least, according to estimates from each system.

Yet community college students are the least likely to work on-campus jobs. When they do work, only 7% of them have a campus job, according to an analysis provided by California Student Aid Commission. The rates are higher at Cal State and UC campuses, where 16% of working students at Cal State and about half of working students at the UC are employed on campus.

Many community college students work full time in the private sector, whereas campus jobs typically restrict students to no more than 20 hours a week. The hourly limit comes from research that says working more hurts students’ grades.

Over the past six years, Jerry Reyes has studied at Reedley College, just south of Fresno, though he left at various points. He’s undocumented and ineligible for DACA, which offers temporary work permits for undocumented youth.

He worked anyway, taking a job at an agricultural packaging house, where he made around $15 an hour. They “didn’t really ask” about his immigration status, he said.

Better jobs are hard to find, he said. “I just ignore potential opportunities because I know they’re just going to turn me away because of my status.”

After a brief stint at San Francisco State, he returned to Reedley College, where he’s pursuing a new major in business administration and serving as a trustee on the community college district’s board. The position is supposed to pay $375 per month, but he said the district won’t compensate him because of his immigration status.

“It’s frustrating,” Reyes said, to watch others get paid for student jobs when he does the same amount of work. He supports Alvarez’s bill but he wants a broader solution too. “A lot of these (undocumented) students don’t work campus jobs,” he said, “and even the jobs they take don’t pay as well.”

Alvarez said he’d consider future legislation to open job opportunities in other sectors too, but not before passing this legislation. “Look, this is already a heavy lift,” he said. “It’s not going to be easy.”

Adam Echelman covers California’s community colleges in partnership with Open Campus, a nonprofit newsroom focused on higher education.

###

The CalMatters Ideas Festival takes place June 5-6! Find out more and get your tickets at this link.

CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.