By Kathryn Watson (File photo)

As students chanted, “Si, se puede” — “yes we can” — Attorney General Mark Herring declared via legal interpretation what state lawmakers failed to do through legislation.

Bolstering his reputation for making bold legal opinions, Herring said the commonwealth’s public colleges and universities must grant in-state tuition status to eligible students who arrived in the U.S. illegally as children with their parents.

“It’s what the law requires,” the Democratic attorney general, who just celebrated his first 100 days in office, told the crowd at Alexandria’s Northern Virginia Community College campus April 29. “It makes economic sense. And it’s the right thing to do.”

But even the interpretation of the highest constitutional officer in the state is merely a legal opinion. Opinions of the attorney general aren’t legally binding, as when former Attorney General Ken Cuccinelli told Virginia police departments they couldn’t randomly collect and store license plate data.

Many local police departments still do.

“Generally, the opinions of the attorney general are non-binding and do not really carry the force of law,” said Matthew Moran, communications director for Republican Speaker of the House Bill Howell. “It is the equivalent of a lawyer giving a client advice, which is in this case, he’s given particularly bad advice.”

According to Herring, all public state institutions must grant in-state tuition for accepted students who qualify under Deferred Action for Childhood Arrivals, a program President Barack Obama’s administration established to keep students — who are enrolled in school and have clean records — in the U.S.
Herring’s announcement could apply to roughly 6,200 young people in Virginia with approved DACA applications as of June 2013, according to the attorney general’s office. Eligible students must first be accepted to a university, like any other legal resident or citizen.

During the 2014 legislative session, a state Senate committee narrowly defeated a proposal that would have done the same thing.

What remains to be seen is whether — more likely, how — Herring’s interpretation of the law would be challenged, and just how much it will cost the state to fund those discounted tuitions. Howell worries Herring is using his powers too broadly.

“The numerous and complex policy questions surrounding immigration are the subject of a vigorous and ongoing political and legislative debate at both the federal and state level,” Howell said in a statement.

“Undoubtedly, many Virginians hold sharply contrasting views on these issues and how they should be resolved. What is clear and not subject to debate, however, is that these issues should be considered, discussed and eventually resolved through the legislative and democratic processes, not by the unilateral actions of one individual.”

Howell isn’t the only one who’s concerned.

“This is bad news, as it will, indirectly, encourage additional young illegal aliens to come to Virginia,” said David North, a policy analyst for the conservative Center for Immigration Studies. “It will also probably minimally reduce the number of hard-to-obtain in-state slots for Virginia’s own [legal resident] would-be students.”

The attorney general’s office didn’t say how much it might cost to fund in-state tuition for eligible immigrants, which could mean less money for legal residents and citizens.

“If there is any (financial) impact, I think it’s more than outweighed by the benefit that this investment is going to have on a better educated, more skilled workforce that will be able to attract the kinds of businesses that we need to be globally competitive in the years ahead,” Herring said.

For now, the cost isn’t the biggest concern for some in the Republican caucus.

“Our focus today has really been on the way the attorney general has overstepped his authority,” Moran said.

Granting in-state tuition for children who immigrated illegally with their parents is an issue that has yet to be resolved in Virginia courts.

Seven students who immigrated to the U.S. illegally with their parents claimed Virginia’s State Council for Higher Education wrongfully denied them in-state tuition, and sued the body last year. The plaintiffs dropped the lawsuit in February.

“Today’s announcement underscores a core belief in the value of education: that higher achievement levels across the commonwealth will lead to a stronger and more robust Virginia,” Peter Blake, the state council’s director, said in a statement last week.

Herring acknowledged his interpretation only is based on current law. If the General Assembly were to enact a law outlawing in-state tuition for people who immigrated illegally, something Delegate Chris Peace tried to do in 2006, his interpretation would become null and void.

Still, there are Republicans who support Herring.

Delegate Tom Rust, who represents parts of Loudoun and Fairfax counties — two Northern Virginia localities with a large immigrant population — said he has good reason to support Herring’s move.

“At this point, it’s just become a thing of fairness,” Rust said, adding that he sees great economic advantages to providing in-state tuition for immigrant students.

For some, last Tuesday was a day of celebration.

Siblings Karla Arana and Josue Arana, both DACA students, were overjoyed.

Josue Arana said he was just accepted into Virginia Polytechnic University and George Mason University, but didn’t know if he could attend either because of the cost.

“It gave me hope to go to school,” he said.

His older sister Arana, who is working to pay her way through Northern Virginia Community College, was all smiles, too.

“It would make me finish school faster,” the second-year student said.

Kathryn Watson is an investigative reporter for Watchdog.org’s Virginia Bureau, and can be reached at kwatson@watchdog.org.