UC, CSU wary of bill allowing them to hire undocumented students

Two people, each speaking into a bullhorn, flank a banner held by people behind them

Sept. 4, 2024 3 AM PT

Jeffry Umaña Muñoz, a Cal State L.A. graduate student, is at the precipice of a life-changing moment: the potential ability to get a campus job at one of California’s public higher education systems, even though he was brought to the country illegally from El Salvador at age 2 and has no legal work permit.

But the passage last week of Assembly Bill 2586, which would allow the state’s higher education systems to hire him and nearly 55,000 other undocumented college students in similar straits, has raised concerns at the University of California, California State University and California Community Colleges. In letters sent to state officials, UC and CSU have expressed fear that the bill could cause them to run afoul of a federal law that bars employers from hiring undocumented people — putting at risk their students, their employees who would hire them and billions of dollars in federal funding.

“While we understand the motivations of AB 2586, the uncertainty and risk cannot be understated or ignored,” Eric Bakke, CSU director of state relations, wrote in a June letter to the bill’s author, Assemblyman David Alvarez (D-San Diego).

Gov. Gavin Newsom has until Sept. 30 to decide whether to sign or veto the bill; his office declined to comment. Hundreds of supporters are planning to rally at the state Capitol on Thursday to press him to support the bill, as California is home to 1 in 5 of the nation’s undocumented college students.

The ramifications are considerable, taking in humanitarian needs, legal risks and explosive politics. Amid a tight presidential contest between Vice President Kamala Harris and former President Trump, immigration is a major issue and some fear that a California law clearing the way for UC, CSU and community colleges to hire undocumented students would be political “red meat” to Republicans. Trump’s running mate, Sen. JD Vance of Ohio, introduced a bill in March cutting off federal funding to universities that hire undocumented people — and he specifically called out UC for scrutiny.

“Left-wing college administrators want to transform their campuses into sanctuary cities,” Vance said in announcing the bill with Rep. Jim Banks (R-Ind.), which is pending in a Senate committee. “Their latest scheme at the University of California is the most lawless yet: ignore federal law and hire illegal immigrants. Our legislation would put this madness to an end. We cannot let American tax dollars fund illegal wages.”

Turbulent politics

Those politics have given some UC regents pause.

“Do we really want to rattle the hornet’s nest?” if Trump wins, asked Regent José Hernández. Although he wants UC to find a way to hire the undocumented students, he said, “you have to look at the political landscape.”

Undocumented students were given a lifeline under the Obama-era Deferred Action for Childhood Arrivals program — better known as DACA — which granted work permits and protection from deportation to certain youth who were brought to the United States as children. But Muñoz could not obtain that status because then-President Trump rescinded the program as he was about to apply. He filed an application in January 2021 under the Biden administration, but a court order has frozen all petitions.

Students such as Muñoz who do not have DACA protections now outnumber those who do. Among an estimated 86,800 undocumented students in California, only 37% are recipients of DACA or are eligible for it. Each year, 14,000 more undocumented students graduate from California high schools, according to the Higher Ed Immigration Portal.

Even at a time of hardening public attitudes toward illegal immigration, these students who came here unwittingly through no fault of their own draw widespread sympathy and support. A July 2024 Gallup poll showed the majority of Americans wanted immigration reduced, the highest share in two decades. But 81% favored allowing those brought to the U.S. illegally as children the chance to become U.S. citizens if they meet certain requirements — including 64% of Republicans polled.

The bill — which passed the Assembly, 63 to 7, and the Senate, 31 to 8 — would prohibit UC, CSU and California community colleges from disqualifying any student for campus job opportunities due to their failure to provide proof of federal work authorization. The bill exempts situations where federal law explicitly requires such proof or work permits are a condition of a federal grant. A grant to work on a military project, for instance, might require U.S. citizenship while a job at a campus labor center might not.

The three systems have not taken a formal position on the bill. In the California Community Colleges system, at least four districts are supportive — Citrus, Long Beach, Los Angeles and Southwestern. UC and CSU have expressed concerns even as they back the bill’s goal to provide jobs for undocumented students.

“Unfortunately, AB 2586 does not protect our undocumented students or employees from prosecution, nor does it protect the University from the risks of potentially losing billions in federal dollars,” UC Legislative Director Mario Guerrero wrote in a July letter to Sen. Anna Caballero (D-Salinas), who heads the Senate Appropriations Committee.

UC receives more than $12 billion in annual federal funding for research, student financial aid and healthcare. The system is the largest recipient of federally sponsored research — $3.8 billion last year — among U.S. higher education institutions.

Novel legal theory

The legislation is built on a novel legal theory that asserts the federal ban on hiring undocumented people does not apply to states because they are not specifically mentioned as employers subject to sanctions in the 1986 Immigration Reform and Control Act. Before that law, the legal analysis notes, the U.S. Supreme Court established that Congress must use “unmistakably clear” language if it wants to regulate state governments.

Scholars at the Center for Immigration Law and Policy at the UCLA School of Law developed the theory and 29 immigration and constitutional scholars — including Erwin Chemerinsky, dean of the UC Berkeley School of Law — have signed on as backers.

Others have pushed back on the argument. An analysis by the Center for Immigration Studies, a conservative think tank, asserted that federal lawmakers did not feel the need to “state the obvious” in the legislation — that states were included in the law’s overriding purpose to reduce illegal immigration by removing the job magnet for it.

At UC, the issue of hiring undocumented students has provoked sharp and emotional divisions for nearly two years. University officials point to their “long history” supporting them, buttressing state grants and private scholarships with such resources as university legal aid and fellowships that offer hands-on learning with grants of up to $7,200.

But the UC Board of Regents in January shelved action on the issue after concluding, following months of consultation with numerous law firms and legal experts inside and outside UC, that there were too many legal risks to hiring the students. UC legal concerns are rooted in precedents by the U.S. Supreme Court and others that established federal supremacy over conflicting state laws in immigration matters. Regents plan to take up the issue again next January.

“We have concluded that the proposed legal pathway is not viable at this time, and in fact carries significant risk for the institution and for those we serve,” UC President Michael V. Drake said then. “I know that many in our community will be disappointed that we are unable to take immediate action. ... I would like nothing more than to do so, right here, right now, because it is the right thing to do.”

Regent John A. Pérez, in a fiery dissent, said he had never been “more disappointed” as a board member and called on his colleagues to lead with courage. Students in the audience, some with mouths taped shut to symbolize their hunger strike over the issue, reacted with fury, calling out, “Cowards!” and other epithets after the 10-to-6 vote, with one abstention.

Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at UCLA, said those cautious about the politics were “misreading” the situation. Even if Republicans sweep the White House and Congress and pass the Vance bill, he said, Democrats would still have the power of the filibuster to block it.

He also said fears about legal risks to undocumented students and university employees who hire them were misplaced. He said federal law doesn’t impose criminal sanctions on undocumented people for working; only those who hire them in some cases. And he and his legal researchers have found no cases in which people were prosecuted for following a state law based on a “good faith” interpretation of federal statutes. They believe that the proposed state law would essentially shield universities and that no punitive actions — such as cutting off funding or prosecuting employees — would be taken by federal officials unless the law was struck down and the institutions flouted the ruling.

Arulanantham and others said colleges and universities would adhere to whatever ruling comes down and believe the legal theory should be tested.

Alvarez said UC would not be forced to comply with the law because the system has constitutional autonomy from the state. But he said he expects compliance so all of the state’s public higher education systems are on the same page.

“I would definitely be disappointed if an institution that receives public funding decides not to implement this and follow the expectations we have,” he said.

If the bill becomes law, one possible response would be for UC, CSU and community colleges to ask a federal judge to weigh in on its validity before implementing it. Arulanantham said he believes such action would be unnecessary — state laws are assumed to be valid, he said. And, asking for a federal judgment would further delay the chance for thousands of undocumented students to get campus jobs that can help pay for their education and keep them on track to career success.

Muñoz agrees. Despite his failure to secure DACA protections, he studied hard and got into highly selective UCLA, graduating in the spring with double majors in labor studies and Chicana/o and Central American studies. He is pursuing a master’s degree at Cal State L.A. and dreams of returning to UCLA for a PhD. But due to his inability to work legally, Muñoz has lived precariously, surviving on donated grocery cards, loans, visits to campus food pantries, grants and scholarships and the kindness of others, raising $3,000 on GoFundMe to cover a shortfall for housing and tuition.

He rejects UC and CSU concerns about protecting their students as “infuriating” and “paternalistic.”

“Even if it increases risk, I still need to eat,” he said.

Osmar Enriquez, a student at Santa Rosa Junior College, said he aspires to transfer to UCLA, UC Berkeley or Stanford but needs to work to earn money for those college dreams. He has received a $1,000 fellowship for undocumented students but it requires 150 hours of community work — amounting to $6.60 an hour.

Ana Lara, a UCLA graduate student who was brought to the United States at age 6 from El Salvador, is aiming for a career in informatics and library science. Being able to work legally in campus jobs will be a game changer for her — and, she hopes, her community.

“I’ll be able to give back to the community, produce more knowledge and become a tutor,” she said. But without the law, “there really is no hope.”