This time, though, like almost all the other times, Arpaio said he didn’t have enough evidence to go after the business owners. The people who make the real money at Nunez Creative Landscaping are free to hire the next round of undocumented workers. So much for Arizona’s three-year-old highly touted E-Verify-based employer law. Arpaio and the morning news shows will be in work for years to come.

Stateline:

[O]nly two companies have ever been forced to close their doors under Arizona’s … employee verification law. The punishments in those cases were trivial: A Subway sandwich shop agreed to close on Easter and Thanksgiving, and a water park agreed to a 10-day suspension, but only after it already had gone out of business.

The Legal Arizona Workers Act may be tough, but even its supporters say it has been a disappointment. It faces plenty of opposition here in Arizona, especially among business owners and civil rights advocates.

One of the widely acknowledged and unaddressed problems is that companies have a lot more sway with lawmakers than do illegal immigrants.

The 2007 law requires companies with Arizona workers to screen new hires using E-Verify, the online tool from the Department of Homeland Security that checks the legal status of applicants. On paper, the penalties for an employer failing to comply are steep: a 10-day shutdown for the first offense and, for a second violation, the loss of a business license, what is often called the corporate “death penalty.”

Thanks to the law, Arizona now has 70,000 company sites signed up for E-Verify. Even though Arizona accounts for only one out of every 50 people in the country, it has one-sixth of the nation’s companies using E-Verify.

[...]

One of the sponsors of the law, Republican state Representative John Kavanagh, says the law has been a “toothless tiger” in that it does not give law enforcement enough tools. Specifically, Kavanagh, a former police officer, says prosecutors need subpoena power to investigate employers. The law does not give it to them. But business groups fought fiercely against that idea and could have derailed the whole bill had it remained, Kavanagh says.

Another problem is E-Verify, which is seen by many conservatives– including prominent politicians on the issue such as Colorado’s Tom Tancredo– as a kind of magic bullet against illegal immigration, when in fact it doesn’t work that well and adds complications.

As sources have explained to the Colorado Independent, E-Verify only detects on average half the people it should detect as undocumented. Worse, it doesn’t nab people looking to dodge it. Those people steal identities; they get false ID numbers that work. Indeed, some say E-Verify creates a whole new level of business in identity theft. The other thing it does, often, is misidentify as undocumented people who are documented or in the legal process of getting documented.

Colorado Republican lawmakers are making a show of getting tough in 2011 on illegal immigration. It’s an effort so far that inspires little confidence. Are they going to go after businesses and not just workers? Employers in Arizona are breaking federal and state laws whenever they hire an undocumented worker. As state Sen. Kevin Lundberg, R-Berthoud, one of the leaders of the effort here said yesterday at a GOP hearing on immigration, “What part of illegal don’t they understand?”

[ Image: Sheriff Arpaio and his non-business-owner illegals ]

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When they showed up, she says, the first thing they did was ask for his immigration status. “These are the sort of situations that prevent day laborers from asking for help when their wages are denied,” Gonzalez says.

The politics of immigration are thorny, but it is a simple truth that construction companies routinely use day laborers without checking their immigration status: Thousands of those workers have helped and are helping to rebuild New Orleans. But those workers commonly suffer abuse due to their immigration status, including threats of violence and wage theft. Despite the best efforts of workers’ rights groups, five years after the hurricane, advocates say abuse remains rampant. Now, those groups are calling for specific legislation to protect vulnerable workers — documented and not — and to make sure they get their due.

After Hurricane Katrina, the number of undocumented workers in New Orleans increased substantially, in part because of a Department of Homeland Security directive to suspend employment immigration enforcement in the area immediately following the storm. The suspension expired quickly, but it created an inviting environment for undocumented immigrants, says Elizabeth Fussell, a professor at Washington State University.

“Conditions were set to attract a labor force of Latino immigrants,” Fussell says. “There was a large population of undocumented immigrants who were coming to do the work that was necessary in the city.”

Though there are no firm numbers on undocumented workers, social scientists point to increases in the Latino population to show the influx of immigrants. The Latino population increased from a 4.4 percent share of the population in 2000 to 6.6 percent last year, according to Census data. Advocacy groups say it is likely higher, about 10 percent.

Thousands of those workers came to work rebuilding New Orleans — clearing debris, fixing roads, building houses, constructing schools. “After Katrina hit, there was much more work and much more wages for people — there were other wages to be found,” Gonzalez says.

And along with the rise of undocumented workers and construction problems came wage theft — to which undocumented immigrants are particularly vulnerable. In a 2007 survey of Mexican migrants at the Mexican mobile consulate in a suburb of New Orleans, Fussell found that 24 percent had experienced situations where an employer did not pay, while about 16 percent had been paid less than they were promised. Nearly 90 percent of those surveyed were working in the country illegally. The Congress of Day Laborers last year found that 80 percent of the workers it represents had been victims of wage theft in the past year.

The consequences are particularly dire for undocumented workers, who do not have access to the same legal and policing resources as other workers. “When you’re not paid for that money, the consequences can be much more serious. It’s the difference between being able to pay rent and being homeless,” says Gonzales.

Nonprofit and advocacy groups stepped in to fill the void, helping undocumented workers regain wages from bosses who stiffed them. The Pro Bono Project and Loyola New Orleans’ School of Law help workers sue their employers, for instance. At the Pro Bono clinic, established in 2007, lawyer Vanessa Spinazola says 90 percent of the workers represented are undocumented. Last year, in a nine-month period, lawyers at the clinic saw 476 workers, filed 365 cases and helped draft 146 demand letters.

Oxfam America funds the Pro Bono clinic, but was forced to discontinue its project on workers’ rights in July due to a lack of funds. Ilana Scherl, a field representative for Oxfam who previously worked on the worker’s rights project, says New Orleans just had too much need and too little funding for the initiative. “I guess a lot of foundations feel like five years later everything should be taken care of,” she says. “The problems are still there but the funds are not.” Spinazola says the clinic has enough funding from Oxfam to operate until July 2011, and she is “writing grants as fast as possible” to find money to continue the clinics.

The clinic is still very much needed, particularly because workers often face violence from employers for demanding their wages, she says. The clinic tells workers to put the address of a clinic P.O. box on their demand letters, so that if employers want to retaliate they won’t have their home addresses. Workers whose employers know their addresses often move before sending the letter. Fear deters some workers from seeking their wages, but others move forward with claims, Spinazola says. “They’re afraid but they need the money or they think they deserve their money — which they do.”

Of course, for illegal immigrants there is also a fear that their employers will call ICE. Spinazola said she suspects that happened a few years ago, when the clinic helped a group of about 40 men who were living and working in an apartment complex to send a letter demanding wages. Most of the men moved out before the letter was sent, but seven were still present when the employer received the demand letter. Two days later, Spinazola said ICE raided the apartments. Three of the men were deported.

Worker’s rights advocates argue that a city ordinance is essential to combating a wage theft problem too big for advocates and undocumented workers to deal with on their own. “The workers need protection, they’re not getting it right now,” Scherl says. “The only way we see to achieve that is to have a policy in place protecting the workers.”

The New Orleans Center for Racial Justice helped develop a policy, but the exact direction of the potential ordinance remains unclear. New Orleans City Councilman Arnie Fielkow has said he would support a wage theft ordinance, and groups are now negotiating the ordinance with the mayor’s office and other officials at city hall.

In New Orleans, some advocates of a wage theft ordinance said they are concerned growing anti-illegal immigrant sentiment will play into their effort to pass the ordinance. But they are hoping the general goodwill many New Orleans residents feel toward the workers who helped rebuild their city will make matters easier.

“In this climate, the fear of opposition is always there,” Gonzalez says. “But New Orleans is a city that recognizes that day laborers did participate and did come to the rescue in terms of reconstruction.”

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When asked for the basis of his claims, Tancredo spokesman Leo Jankowski said Denver Executive Order 116 (pdf), signed by Mayor Wellington Webb in 1998, makes Denver a sanctuary city.

That order, which is still on the books, does not even mention illegal immigrants, but rather says Denver should treat all legal immigrants equally.

Asked if this order was “still in force,” assistant city attorney David Broadwell said, “It is still on the books.”

He characterized the order as “having no force and effect.” He said most executive orders are very specific and spell out exactly what is expected of a particular department. “This one is something of an outlier. It expresses the sentiment of city officials but it does not cause anything to happen.”

When Webb signed the order, though, city officials told the Denver Post that the order could cost the city up to $1 million a year in additional services to legal immigrants. This was on top of an existing social services budget of $550 million in 1998.

Broadwell says the order today is not used as a guide for any sort of city policy or procedure and costs the city nothing.

Another city policy that critics point to as proof that Denver is a sanctuary city is known as 100-90 (3) in the city’s Police Department Operations Manual.

It says, “Denver Police officers shall not initiate police actions with the primary objective of discovering the immigration status of an individual.”

It goes on to say that when a person arrested for any reason is believed to be an undocumented immigrant, that person shall be referred to immigration authorities.

Broadwell says that part of the Police Manual has been unchanged “since the 1990s.”

In 2006, the Colorado Legislature passed Senate Bill 90 (pdf), which creates a policy that no city or county in Colorado shall operate as a sanctuary for illegal immigrants, and that if they do provide sanctuary, they shall not be eligible for financial assistance from the Department of Local Affairs.

Broadwell said Denver has never been found to be in violation of SB 06-90. The law says cities and counties must cooperate with immigration officials and must not have any policies that prohibit law enforcement employees from cooperating with immigration.

Much of the language in the law could have come directly from Denver’s Police Manual – that if an arrest is made of someone whom officers have a reason to believe is an illegal immigrant, that person shall be referred to immigration authorities. It mandates that each law enforcement agency provide the state an annual accounting of how many people were referred to immigration.

Tancredo, on his campaign website, has posted a Contract with Colorado. No. 7 on the list is:

“I will issue an executive order directing the Department of Local Affairs to thoroughly audit compliance with SB 06-90, and will order DOLA to deny state grants to any “sanctuary city” or any “sanctuary county.”

The state has already conducted such an audit (pdf), which uncovers no cases of a city or county being in violation. This audit was done last year by the Office of the State Auditor and managed by a committee of eight members of the Legislature, four from each of the two major parties.

The 2009 audit was spurred by an automobile accident that happened in Aurora in September of 2008, wherein Francis Hernandez broadsided another vehicle, which was pushed into a restaurant. Three people were killed.

Hernandez was later found to be an illegal immigrant who had been arrested numerous times in the metro area but never referred to immigration. The accidents and numerous of his other brushes with the law were in Aurora.

His ability to remain out of custody and in the country was seen by some as a failure of the system. Senate Bill 90 had been in effect about two years at the time of this accident. The audit concluded that there is little that could have been done by law enforcement to prevent such an accident.

“We concluded that the implementation of Senate Bill 06-090 alone is unlikely to either prevent fatal traffic accidents allegedly caused by illegal immigrants or increase the number of detained or removed illegal immigrants.”

“Even if he (Hernandez) had been referred to ICE by any of the parties who had arrested him prior to the accident, he probably would have been released because his offenses were pretty minor and he presented as a citizen in that he spoke perfect English, had lived in the country most of his life and was consistent in telling authorities he was born in California,” Broadwell said.

Indeed, of those people referred to ICE by Colorado authorities, ICE generally takes custody of only 20-30 percent of them, opting to allow most go once released from local custody.

One thing SB 90 has done is force cities and counties in Colorado to refer people to Immigration and Customs Enforcement whenever they have reason to believe someone they have arrested is undocumented.

According to the audit, cities and counties are cooperating. According to information provided to us by the Hickenlooper campaign and corroborated in part by the audit (which doesn’t cover every year), the numbers are substantial.

Since SB 90 was passed, Denver has referred more than 7,000 people to ICE. Once referred, ICE examines the record and if it determines the person is in the country without documentation, they are deported.

Tancredo refers to Denver as a sanctuary city at almost every opportunity. His website is replete with such charges, including “For seven years Hickenlooper has run a sanctuary city, which has encouraged hundreds of thousands of illegals to its city limits.”

In a press release sent in July, Hickenlooper spokesman George Merritt said, “Simply repeating a false claim doesn’t make it true.” The release goes on, “Denver is not — and never has been — a sanctuary city. The City and County of Denver complies with all relevant federal and state immigration laws. The City has never adopted a ‘non-cooperation’ policy regarding the enforcement of… immigration laws.”

Broadwell said more or less the same thing, adding “When you think of a sanctuary city, you think of a place where when you cross the border into the city you will be treated differently than if you hadn’t crossed the border. That is not the case here. You can cross Sheridan [boulevard] in either direction and be treated identically by Lakewood or Denver. All the cities in the area comply with the law and cooperate with ICE.”

If you search the Internet for lists of sanctuary cities and/or definitions of the term, you’ll find many sites, most of them maintained by anti-immigration organizations. One of the most comprehensive sites is www.ojjpac.org.

They define sanctuary cities as those having policies spelling out that the city should not report illegal residents to ICE. The site lists nearly 200 cities, as well as the states of Oregon and Maine. Denver is on the list, but so are Phoenix, Tucson, Dallas, Houston and Salt Lake City.

“Denver has never been a sanctuary city,” Broadwell said. “Some cities adopt policies of non-cooperation. Denver has never done that. Our policies are no different than any other city in the area. We are accused, but where is the evidence? How do these documents (the Police Manual and the executive order) make us a sanctuary city? Are they saying that anyone with brown skin should be subject to interrogation as to their status?” he asked.

Phoenix Police Lt. Tommy Thompson said Phoenix, refers 5,000 to 7,000 people a year to ICE, but that he has no idea how many are detained. Phoenix is about 2.5 times the size of Denver. When told that Phoenix was considered by some to be a sanctuary city, he laughed.

“No, we’re not a sanctuary city,” he said. Asked what it would mean to be a sanctuary city, he laughed again. “You’d have to ask them [those using the term],” he said. Then he became more serious. “It’s a political term. It has nothing to do with what happens on the street in a city. The term is used by people who think that no matter what you are doing, it isn’t enough.”

Indeed, the House-passed reform bill strayed from the Senate proposal on a number of key issues, from children’s coverage to Medicaid payments to the creation of a public health insurance plan. Here’s how the reconciliation bill — which House leaders unveiled today to address what they considered weaknesses in the Senate legislation — would tweak (or not) some of the most contentious provisions in the upper chamber’s bill.

Paying the Freight

A central disagreement between House and Senate Democrats has been over how to pay the substantial costs associated with covering tens of millions of uninsured Americans. The House paid much of the tab with a 5.4 percent tax on the nation’s highest earners — individuals making more than $500,000 per year, and families pulling in more than $1 million. The Senate, meanwhile, passed a 0.5 percent hike on Medicare’s payroll tax for individuals earning more than $200,000 and families earning more than $250,000. But a larger chunk of funding under the Senate bill would come from an 40 percent excise tax on high-cost insurance plans — a provision that’s wildly unpopular among a key Democratic constituency: Organized labor.

The reconciliation bill alters both funding mechanisms. First, it scales back the insurance excise tax by increasing the dollar thresholds from $8,500 to $10,200 for single coverage, and from $23,000 to $27,500 for family coverage. It also delays the application of that tax until 2018. To make up the revenues lost by changes to the excise tax, the reconciliation bill also expands the Medicare tax to include net investment income (i.e. unearned income).

Kids’ Care

After years of promoting the virtues of the Children’s Health Insurance Program, House Democrats did a strange thing: They proposed to eliminate CHIP altogether, instead moving those kids into either Medicaid or private plans on newly created insurance marketplaces, dubbed exchanges. The Senate bill took a different tack, reauthorizing CHIP through 2019, while funding it through 2015. Despite a more recent White House proposal to provide an extra year of funding (through 2016), the reconciliation bill doesn’t touch the issue, leaving the original Senate provision intact (and kids welfare advocates happy).

Pharma Deal

A behind-the-scenes deal cut last year between Sen. Max Baucus (D-Mont.) and the pharmaceutical lobby drew a good deal of attention: The nation’s drug makers, under that agreement, would dedicate $80 billion toward health care reform over the next decade if Democrats would oppose further industry reforms — including a proposal allowing Americans to buy their prescriptions from abroad, and another empowering states to negotiate directly with companies on behalf of their lowest-income seniors.

While the White House endorsed the deal, House Democrats didn’t. Instead, Rep. Henry Waxman (D-Calif.), chairman of the House Energy and Commerce Committee, included the state negotiation provision as part of the House-passed bill. While the reconciliation bill does tap the drug makers for $28 billion over 10 years ($5 billion more than the original Senate bill), it doesn’t dabble with the other terms of the Pharma deal.

Abortion

Always the hot-button issue, abortion has emerged as the one topic that still really threatens House passage of health care reform. Late last year, Speaker Nancy Pelosi (D-Calif.) had negotiated a delicate compromise designed to satisfy a number of anti-abortion Democrats — notably Rep. Bart Stupak (Mich.) — who were concerned that the reform bill would allow taxpayer dollars to subsidize abortions. The so-called Stupak amendment would ban exchange plans from offering abortion coverage, forcing women to buy a separate policy covering abortion services. The Senate bill is a bit less strict, allowing abortion coverage on the exchange, but requiring women to write a separate check for those services to ensure that no federal funds go toward them. It’s the Senate provision that’s going to the floor of the House early next week, leaving Stupak and roughly a dozen other House Democrats vowing their opposition.

Anti-Trust Exemption

For 64 years, the health insurance industry has reaped the benefits of a rare exemption to federal anti-trust laws, which allows companies to share cost and coverage information without scrutiny from Washington. And for a number of years, Democrats have had their eyes on repealing it. The House bill would have done just that, but the provision didn’t make the cut in the Senate, due largely to the opposition of Sen. Ben Nelson (Neb.), the moderate Democrat whose close ties to the insurance industry include a stint as CEO of the Omaha-based Central National Insurance Group.

Like many other insurance reforms, this provision is one of those non-budget related items not eligible to move under the reconciliation process. The Democrats, though, are hoping to repeal the exemption later this year through separate legislation. Indeed, the House has already passed such a bill last month.

Medicaid Rates

The headlines today will likely focus on the plan to eliminate the sweetheart Medicaid deal that Senate leaders cut with Nebraska’s Nelson — a deal so unpopular that even Nelson himself claims now to oppose it. But much more significant for purposes of ensuring care is a provision of the reconciliation bill that hikes Medicaid rates to primary care physicians to at least the level of what Medicare pays for those same services. That provision was contained in the House bill, but not the Senate proposal.

The issue isn’t trivial. Medicaid rates are so low that many doctors refuse to see Medicaid patients. Only about 40 percent of physicians accept all new Medicaid patients, versus 58 percent for Medicare patients, according to a September study from the Center for Studying Health System Change, which randomly surveyed more than 4,700 physicians. And that number drops to about 31 percent among family doctors and general practitioners.

For dental care, the numbers are even worse. Only 27 percent of the nation’s dentists will treat Medicaid-insured patients, according to a 2007 survey by the American Dental Association survey. Those trends raise important questions about the value of an insurance program that nobody accepts — and led directly to the Democrats’ decision to hike Medicaid rates.

Closing the Doughnut Hole

Though seniors participating in Medicare’s prescription drug program are generally happy with their benefits, a painful thorn plagues the program: Seniors are forced to pay the full cost of drugs when annual expenses hit $2,700, and the subsidies don’t return until total costs hit $6,154 — a coverage gap known (not endearingly) as the doughnut hole. The Senate bills took steps to reduce the size of that gap, relying mostly on the pharmaceutical companies, who offered a 50 percent discount through the doughnut hole as part of their $80 billion deal with Democrats.

The reconciliation bill expands on that plan, offering seniors an additional $250 rebate in 2010, and closing the doughnut hole entirely by 2020.

Illegal Immigrants

While both the Senate and House bills would prohibit illegal immigrants from receiving federal subsidies on the exchanges, the Senate took the restriction a long step further by preventing those folks from buying insurance from the exchanges at all — even if they paid the full price of coverage using their own money. (The House bill would allow such unsubsidized purchases.) Although some members of the House Hispanic caucus have advocated for the House language in the reconciliation bill, it didn’t make its way in.

Public Option

The House bill included the creation of a government-backed insurance plan to compete with private companies on a national exchange, while the Senate bill contained no such thing. Despite a late push from liberal groups to include the House provision in the reconciliation bill, House Speaker Nancy Pelosi (D-Calif.) declined, citing a lack of support in the Senate.

House Majority Leader Steny Hoyer (D-Md.) said today that the lower chamber hopes to vote on the reconciliation bill Sunday afternoon.

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Tom Tancredo: The former Colorado congressman and anti-illegal immigrant activist has been a hero to the new Know-Nothings for years, but he’s kept a low profile since leaving office, emerging only a few times in ’09 to bash then-Supreme Court nominee Sonya Sotomayor, accusing her of being a racist and characterizing her membership in La Raza as being “nothing more than a… Latino KKK without the hoods or the nooses.” Anti-immigrant fervor has traditionally been a part of recession-era wingnut eruptions in years past, but it has not been a focus of Tea Party populist anger to date. It will be interesting to see what role Tom Tancredo plays among the Tea Party faithful—is he a third-rail throwback or a prodigal son turned Pied Piper? His reception will offer insights into the direction that the Tea Party movement may take in 2010.

Avlon is the author of lety book Wingnuts: How the Lunatic Fringe Is Hijacking America. His chapter on Glenn Beck was also excerpted at the Daily Beast.

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Miklosi had said in October that he was planning to introduce the bill in the coming session.

Rep. Joe Miklosi

A similar bill, sponsored by Chris Romer, D-Denver, died in the Colorado Senate in April after five Democrats joined Republicans in voting against it. Many cited concerns about deep cuts to the state’s college system that appear to be looming–or the fear of a lawsuit.

The Denver Post story quoted Gov. Bill Ritter arguing that a bill passed last session will do more for Colorado’s immigrant population than Miklosi’s proposed bill. The bill allows high school students to take courses at community colleges

Asked recently if he was pushing for the legislation in 2010, Ritter said no. He said that a bill passed last session to expand a program that allows high school students to take courses for college credit would do more to help illegal immigrant students than in-state tuition.

Under the new law, high school students can get enough credit for an associate’s degree at the school district’s expense, if the school district has an agreement with a college. Because the students are still in high school, their immigration status is not an issue when getting college credit.

“That has a greater impact and a broader impact” than in-state tuition would, Ritter said.

However, the Post story also suggested that the bill might have been delayed because it is too controversial for a year with so many important campaigns. The story alleged alleged that certain Democrats had stated privately that they worried the bill could hurt the party’s image in “what could be a challenging election year.”

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According to the Montrose Daily Press, commissioners Ron Henderson and Gary Ellis rejected a resolution supporting the 2010 Census because it will actually count people living in the country – information that might be generally beneficial for Uncle Sam.

(Staver: Flickr)

“I just don’t think it’s right (to count undocumented residents). I just don’t think it’s being done correctly,” Henderson told the paper. “It’s not that we’re stopping it, but our government needs to wake up. It’s not waking up.”

Ellis balked for the same reason, rejecting the Census Bureau’s notion that residency status is not relevant in the process of conducting an accurate population count, according to the paper. “Otherwise, from my perspective, we really kind of support people who are violating our laws,” he said.

Commissioner David White, who was clearly exasperated with the invasion of liberal greenies from Telluride during the uranium hearings, apparently doesn’t share Henderson and Ellis’s take on the 2010 Census. He voted in favor of the resolution.

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“Make my day punk!” said William Gheen of ALIPAC in a press release on the group’s Website. “Gutierrez and his fellow traitors in Washington know they are running out of time on this Amnesty legislation and since 78% of Americans oppose what they are trying to do and many consider it Treason.”

The Tea Parties Against Amnesty, scheduled across the country on Nov. 14 are only a warm-up, said Gheen. He said he is preparing many more events for the spring, when the “Amnesty battle will be full swing.”

Here’s the anti-amnesty pitch, posted on www.AgainstAmnesty.com:

President Obama along with Republican and Democrat DC insiders are preparing a mass ‘Comprehensive’ Amnesty for illegal immigrants in America that will provide a path to citizenship and turn illegal aliens into voters even though a vast majority of Americans oppose this. This will only bring more ILLEGAL IMMIGRATION to America!

It is time for Americans of every race, religion, and political party to unite and make it OUR MISSION to stop amnesty, stop and reverse illegal immigration, and place America back in the hands of We The People.

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ConsiderThisNews has the video of protesters in New Hampshire, expressing their anger at President Obama. This is the highlight:

“We don’t need illegals,” says a white-bearded protester into his megaphone. “Send ‘em all back. Send ‘em back with a bullet in the head the second time.”

The man goes on to cite Thomas Jefferson, saying “Read what Jefferson said about the Tree of Liberty — it’s coming, baby.”

What Jefferson actually said was: “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”

It’s getting ugly.

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“Unconstitutional.”

“It’s amazing how many people in America don’t think the Constitution applies to immigrants,” Torres said. “I’m the child of undocumented immigrants. I know the implications.”

Recently, said Torres, the implications in Colorado have taken on a distinctly brown tinge, because most of the state’s undocumented immigrants are Latino.

Defacto discrimination against Hispanic Americans is a demographic fact of life in Metro’s tuition policy and the similar policies of at least two other state colleges – Adams State and Fort Lewis.

But the specter of racism – even if it is unintended – is only part of the problem. The true scandal resides in the notion that children can be punished for their parents’ crimes.

Metro spokeswoman Cathy Lucas told me a new state law forced her school to charge in-state kids out-of-state tuition.

House Bill 1023, passed in the last session of the General Assembly, says taxpayer money cannot benefit illegal immigrants. That, combined with an old law that says state colleges must consider the residency of a students’ parents, convinced Metro, Adams State and Fort Lewis that un-emancipated minors under the age of 23 can’t get in-state tuition if their parents are illegal immigrants.

As pubic policy, this reasoning is worse than tortured. It’s self-defeating.

“I work with several students who would be affected by this,” said Adriana Ayala, pre-collegiate director of the Roaring Fork School District in Western Colorado. “They are U.S. citizens entitled to the rights of any citizen.”

Some of Ayala’s students are the children of the illegal immigrants who wash clothes, cook food and tend lawns of Aspen’s rich and famous. Others do the same thing at hotels serving tourists who come to town hoping to rub shoulders with wealth and fame.

Ayala’s students and those like them deserve the chance to grab their bootstraps and pull. They do this in the best American tradition – by educating themselves. Denying them that opportunity because their parents don’t have papers constitutes a particularly ugly form of cruel and unusual punishment.

David Skaggs, the executive director of the Colorado Department of Higher Education, believes that. So do officials at the University of Colorado, Colorado State University and the state’s 13 community colleges. All have taken the position that you can’t visit the sins of the fathers and mothers on the sons. All want American citizens and Colorado residents to pay in-state tuition, regardless of their parents’ legal status.

Skaggs calls in-state tuition for American citizens and Colorado residents “a matter of equity and decency.”

It is also a matter of equal protection under the law.

Roberto Suro of the Pew Hispanic Center said other states have charged out-of-state tuition to the children of illegal immigrants. Suro knew of no legal challenge that has been brought.

Immigrant advocates in Colorado should try to set a precedent against this kind of prejudice.

Skaggs has asked Colorado Attorney General John Suthers for an opinion on in-state tuition for the citizen-children of illegal immigrants. Skaggs wants a uniform tuition policy for all state schools.  And he also wants that uniform policy to offer in-state tuition to U.S. citizens who are state residents.

The battle here is over the term “domicile.”

Colorado law says the parents of college students must be “domiciled” in the state if those students are to qualify for in-state tuition.

“There is,” said Skaggs, “a question as to whether parents who are not legal residents of the U.S. may nonetheless have established legal domicile in the state for purposes of their child’s qualification for resident tuition.”

Metro State’s Torres says people who live here, live here. His school’s administrators say domicile is a legal term that needs clarification.

Skaggs says he is prepared to ask the General Assembly to right this wrong, if Suthers won’t.

Suthers’ spokesman told me an opinion on in-state tuition for citizen-residents with illegal immigrant parents is at least two weeks away.

You wonder what the hold-up is.

Meanwhile, you don’t have to wonder about the impact of policies like the ones espoused at Metro, Adams State and Fort Lewis. Those policies are destroying lives and wasting potential.

At Metro, the difference between in-state and out-of-state tuition is the difference between $3,000 and $11,000, the difference between a chance at a better life and a life of underachievement.

“Right now, it’s about money,” said 22-year-old Nelson Villegas, whose parents are undocumented. Villegas got a scholarship and in-state tuition before the new law went into effect. But he knows what it will do to other young people like him.

“If they see the higher prices,” Villegas said, “they’re just going to say, ‘I can’t.’”

Torres agrees. Charging citizens and state residents out-of-state tuition because their parents are undocumented “is the academic equivalent of the poll tax. It disenfranchises a certain group of people.”

That doesn't just make the practice wrong. It makes it intolerable.