Colorado Attorney General John Suthers on Tuesday said state-supported institutions of higher education do not have the authority to create discounted tuition categories for illegal-immigrant students without legislative approval.

The opinion came in response to a query from the Colorado Community College System after Metropolitan State College of Denver’s decision earlier this month to create a new tuition rate for such students.

Suthers said Metro’s new rate creates a “public benefit.” Under state law, public benefits can be given only to individuals who can prove their lawful presence in the United States.

Metro created its new rate, $3,358 per semester, not long after the state legislature failed to pass the ASSET bill, which would have created a discounted-tuition category for illegal-immigrant students from across the state. Falling under its nonresident student category, Metro State’s new rate is approximately $4,600 less than an out-of-state student would pay.

That action, Suthers said, “is simply not supported by governing law.”

“The General Assembly may continue to consider this issue,” Suthers said in a statement. “In the meantime, however, state-supported institutions of higher education in Colorado cannot act unilaterally. Under federal law they must await a decision by the legislature. I am disappointed Metro State decided to proceed in this manner without consulting our office.”

Suthers’ opinion is considered a nonbinding interpretation of state law. Suthers was traveling and couldn’t be reached for comment. Deputy Attorney General David Blake said Metro State was not technically breaking the law by offering the new rate, but that Suthers’ opinion should give school officials pause. “The opinion is that these students are being given a discount — $9,000 (on full-year tuition) is a public benefit,” Blake said.

Metro State president Stephen Jordan also was traveling and could not immediately be reached for comment. A school spokeswoman said there would be no comment “until we’ve had time to review the attorney general’s opinion and go over it with our board of trustees.”

Board of trustees member Terrance Carroll tweeted: “The AG crafted a legal position on Metro State tuition rate to support his ideological & political beliefs, not the law.”

Before the opinion was issued, Jordan was preparing to meet with the state legislature’s powerful Joint Budget Committee today regarding its action. Members of the JBC had raised questions about the process Metro State had used in formulating its rate plan.

Speaking about potential questions from the JBC, Jordan was asked how he would justify the rate.

“This isn’t a new concept,” Jordan said. “We’re not the first school in the state to adopt a rate that’s different than its basic nonresident rate.”

Rep. Cheri Gerou, a member of the JBC, and other politicians have questioned whether Metro State subverted the will of the legislature in creating its tuition rate.

Gerou, R-Evergreen, asked Jordan to meet with the JBC.

“The point of this is to talk with them about what happened and what went on,” she said. “I can have an opinion, but I’m trying to withhold judgment one way or another and not come in with an agenda.”

Metro State’s plan requires illegal-immigrant students to meet certain conditions before they would qualify for the cut-rate tuition.

Those criteria include being a state resident for at least three years, having a degree from a Colorado high school or a GED, and being in good legal standing other than the undocumented status.

But in his opinion, Suthers said the new rate amounted to a form of “assistance” that wasn’t allowed. Referring to Metro State’s analysis that says there are 120 current students who would qualify for the new rate, Suthers said: “For these 120 students, the program is identical to a scholarship of $8,828.20. And the benefit to these students alone translates to a total of over $1 million the students would otherwise have been required to pay.”

The Colorado Community College System asked Suthers for his opinion on the issue because it was considering making a similar move.

“Given the underserved population we’re talking about and our access mission, it would be an important consideration,” CCCS president Nancy McCallin said. “Historically, our board has been in favor of the ASSET bill. What Metro was doing was a new way of looking at the issue.

“Several of our board members wanted to take a look and see what was possible, so we decided that we should get a legal opinion. We had no expectations one way or the other, but it looks as though we’re being told that we can’t do this, so we need to abide by the attorney general’s opinion.”