FOX UNDERCOVER - The Patrick administration's controversial decision to allow some illegal immigrants to pay the same lower rates at public colleges and universities as citizens who live in Massachusetts is now bringing the threat of a lawsuit from a legal watchdog group and criticism from some Republican lawmakers who say the move violates federal law.
It's the latest fallout from the governor's decision this past November to allow a small group of qualified illegal immigrants to attend state schools and pay the same lower tuition and fee rates as others living in the state.
While the state Department of Higher Education hasn't tracked how many students have taken advantage of the change, FOX Undercover did the math and found at least 120 immigrant students are paying the in-state rate at one of the 29 public colleges or universities thanks to the administration's decision.
The difference between what those 120 students would be paying if they still had to pay the out-of-state rate is about $1.3 million dollars.
Only Massachusetts students who have been accepted into a federal program for those who immigrated illegally to the country as children are eligible for the in-state rate.
Even though the numbers are low, they still don't sit well with everyone.
"Should we be spending our hard-earned tax dollars expanding benefits to those who are breaking the rule?" said state Rep. James Lyons, R- Andover.
Lyons wrote a letter to Board of Higher Education Chairman Charles Desmond asking him to reconsider the policy of granting the lower rates.
But Massachusetts Commissioner of Higher Education Richard Freeland said the change has been smooth, with little effect.
"So far it's been working out pretty much as we've expected," he told FOX Undercover. "The numbers are small. They've been readily absorbed into existing classes.
"Is this costing taxpayers money?" FOX Undercover reporter Mike Beaudet asked him.
"The Massachusetts Taxpayers Foundation did a study on this at the request of the legislature and actually concluded that there would be revenue added because these students are by and large not currently enrolled in higher education because they do have access to in-state tuition," Freeland responded.
For those who qualify, the savings are huge. The difference between in- and out of state tuition and fees at UMass-Boston, for example, is a little more than $14,000 a year.
Some schools like North Shore Community College aren't tracking how many students are attending or been accepted for the upcoming semester.
As for the campuses that do track, Bunker Hill Community College has the most: 26. Next is UMass-Dartmouth, which has 23. Mass Bay Community College has 10. Others have just two. Some, like Roxbury Community College, reported having none.
But some say the number of students getting the lower in-state rate could explode.
Working with a small group of Republicans in the legislature, the conservative legal group Judicial Watch says the move is illegal, and a consequence of violating the federal law is that Massachusetts must offer the lower in-state rate to every citizen in the country.
"Under federal law if a state decides to provide in-state tuition for those unlawfully present based on residency the university is also required to provide the same in-state rate to anybody in the United States," said Judicial Watch attorney Michael Bekesha. "This is going to cost the taxpayers of Massachusetts significant money."
Judicial Watch might file a lawsuit to force the state to offer the lower tuition rates to everyone, Bekesha said.
State officials say Massachusetts is not violating the law. Officials consider the students who are part of the federal program to be in the country legally.
Not true, according to Judicial Watch.
"They're not here lawfully. They do not have lawful status and that's what matters under the federal law regarding in-state tuition benefits," Bekesha said.
Meanwhile, back on our campuses, Commissioner Freeland says the controversy is overblown.
"I think I can honestly say we have not gotten a single letter or phone call raising concerns about this policy," Freeland said.
All sides do agree there's one way to resolve this, having the legislature approve it. Considering lawmakers rejected that move in 2006, it seems unlikely the Patrick administration will try that any time soon.