Law 17 Final Research Paper

UNDOCUMENTED POST-SECONDARY STUDENTS AND THE IN-STATE TUITION DEBATE

Although children of undocumented immigrants are entitled by law to primary and secondary education in the U.S., post-secondary education remains illusive for many resident student “illegals” whose personal and economic futures unfairly hinge on a confusing array of federal statutes, state statutes, and uncertain pending legislation regarding in-state tuition. While undocumented students await their fate regarding the in-state tuition debate surrounding post-secondary education, legislators, the courts, government agencies, public colleges and universities, and various activist groups seek to clarify and codify the issue, which at present remains a precarious mix of legislative inconsistencies, politics, and misinformation.

Under Title 8 of the United States Code, unsanctioned entry into the United States is a crime and anyone entering the United States unlawfully is subject to deportation.1[1] While it is a recognized fact that the parents of these undocumented students have broken the law by living and working in the U.S. without lawful residency status, it should also be a recognized fact that by denying post-secondary in-state tuition to those undocumented students who have lived in the U.S. for most of their lives, a college degree will continue to be an unaffordable, unattainable dream, and their economic futures, and the economic future and well-being of our society, will be greatly diminished. These undocumented students are not asking for a free post-secondary education, but merely to be classified in such a way so as to share the same benefit as other residents of the state, i.e., a discounted tuition rate.

This paper will briefly discuss the history of legislation and cases regarding the education of undocumented school-age children, but the paper’s main focus will be the various federal and state statutes that are now in force regarding post-secondary in-state tuition, the effects of these existing laws, and what the courts have ruled as a result of lawsuits that have been filed challenging the constitutionality of these existing laws. In addition, the paper will also examine current legislative proposals before federal lawmakers, how these proposals differ from existing laws, whether these new proposals offer any improvement over existing laws, and what the future may hold for undocumented students as they strive to achieve the post-secondary educational goals that are vital to their future economic success.

The debate involving public education for undocumented students began in 1977 when a class action lawsuit brought on behalf of a group of undocumented school-age children challenged a Texas statute that denied school admission to students who could not establish legal U.S. residency. When the case of Plyler v. Doe came before the Supreme Court, the high court held that it was unconstitutional to deny primary and secondary education to illegal alien children because it violated the Equal Protection Clause of the Fourteenth Amendment. The Plyler Court cited the 1886 case of Yick Wo v. Hopkins, which stated, “The Fourteenth Amendment . . is not confined to the protection of citizens . . these provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of . . . nationality.” 2[2]

The landmark 1982 Plyler case recognized that “public education has a pivotal role in maintaining the fabric of our society . . . the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological well-being of the individual, and poses an obstacle to individual achievement.” 3[3] So began the mandate of providing free primary and secondary education to undocumented students residing in the United States.

Plyler’s federal mandate solved the issues involved in educating undocumented K-12 children in the various 50 states, but policies and laws regarding post-secondary education in 1982 were and continue to be the responsibility of each individual state. Even so, that same year in Toll v. Moreno, the Supreme Court ruled that the University of Maryland had violated the Supremacy Clause of the U.S. Constitution by denying in-state tuition to children of officers and employees of international organizations who although were legally domiciled in the United States under so-called “treaty organization” G-4 visa classifications, were considered “non-immigrant aliens.”4[4]

In 1983 and in response to Toll, the California legislature amended its Education Code to allow in-state rates for illegal alien students unless such students were not allowed to establish domicile in the United States under the Immigration and Nationality Act.5[5] The very next year, however, the California Attorney General disagreed and published his opinion that once again classified undocumented students at California colleges and universities as nonresidents.6[6] In the 1991 case Bradford v. Regents of the University of California, the Court of Appeals upheld the Attorney General’s opinion, effectively dismissing a lower court’s 1985 ruling that the Attorney General’s opinion violated Article I, Section 7 of the California Constitution by concluding, “The legislative history of the Education Code section 68062, subdivision (h), demonstrates that the Legislature did not intend to, and the subdivision does not, permit undocumented aliens to establish residence for tuition purposes in California’s public institutions of higher education.”7[7]

With so much conflicting and shifting legislation and court rulings, the U.S. Congress was correct when it decided to definitively address the subject of post-secondary benefits to undocumented aliens in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Section 505 states in pertinent part:

“Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less amount, duration, and scope) without regard to whether the citizen or national is such a resident.”8[8]

Many anti-immigration activists interpret Section 505 as clearly prohibiting the states from providing post-secondary in-state tuition to undocumented students, but its literal interpretation, in fact, preserves each state’s right to determine its own policy regarding undocumented students with the caveat that non-resident U.S. citizens must receive the same in-state tuition benefits as those afforded to undocumented students. Since 2001, ten states have passed laws that provide in-state college tuition for eligible undocumented students. Those states include California, Texas, Utah, New York, Oklahoma, Illinois, Kansas, Washington, New Mexico, and Nebraska. Most states mirror California’s model where post-secondary in-state tuition eligibility is not based on residency per se but on whether undocumented students, as well as non-resident U.S. students, have attended high school in the admitting state for 3 years, graduated with a high school degree or equivalent in that state, and, in the case of the undocumented student, that he or she has signed an affidavit to begin the process of applying for citizenship as soon as is feasible.9 [9] It is not surprising that California and Texas, both with large immigrant populations, were first in enacting such legislation in 2001, were held as models for the other eight states, and even now are the models for pending laws in other states.10[10] Interestingly, California’s statute also precludes a college or university from notifying federal immigration authorities of a student’s immigration status.11[11] In passing the aforementioned legislation, these states are not only offering a more affordable college education to undocumented students, but are also providing an incentive to those who have been U.S. residents for most of their lives to seek legal citizenship or, at the very least, to seek permanent residency status.

It is encouraging that ten states have recognized the long-term benefits of offering in-state tuition to undocumented, post-secondary student residents and that similar legislation is pending in Connecticut, Missouri, New Jersey, and Rhode Island, but the remaining states have either failed to pass such legislation or have rejected entirely the notion of offering post-secondary in-state tuition to undocumented students. In Massachusetts, for example, a bill granting in-state tuition to undocumented college students was defeated in January of this year. 12[12] In Alabama, Alaska, Florida, Mississippi, and Colorado, there is pending legislation to restrict such in-state tuition awards altogether.13[13] Arizona’s bill to ban in-state tuition for undocumented students was defeated in 2005, and, mercifully, Virginia House Bill 156 (2004), which stipulated in part, “public institutions of higher education may not knowingly accept for enrollment any illegal alien, and directs each institution, upon discovering an enrollment of an illegal alien, to provide for the prompt dismissal of any such person from the institution” was defeated.14[14]

These statistics make very clear the inconsistencies that are inevitable when the federal government gives the states legislative autonomy on a small but significant area of what many consider to be immigration policy. Immigration policy is strictly the domain of the federal government. Title 8 of the United States Code states in pertinent part, “The Secretary of Homeland Security shall be charged with the administration and enforcement of . . . laws relating to the immigration and naturalization of aliens . . . ” 15[15]

Believing that the recently enacted state laws do conflict with federal immigration policy, disgruntled U.S. students and their parents in Kansas and California who paid nonresident tuition brought lawsuits challenging the constitutionality of the laws in their respective states. In Day v. Sebelius, plaintiffs argued, among other things, that Kansas law K.S.A. 76-731a was unconstitutional because it “created residence status for illegal aliens contrary to federal law”, because “illegal alien recipients of such postsecondary education benefits are not legally eligible to remain in the State of Kansas after completing their courses of study,” and because plaintiffs, as U.S. citizens, are prejudiced by a policy that rewards undocumented students at the expense of U.S. citizens.16[16] In Martinez v. Regents of the University of California, plaintiffs who were U.S. citizens attempted to receive reimbursement for nonresident tuition they paid, arguing that California Education Code §68130.5 was preempted by federal immigration laws.17[17] Both cases were dismissed on successful demurrers, in part because of procedural problems, but also because neither the Kansas law nor the California law were found to be discriminatory as both used identical qualification criteria for both undocumented and U.S. students and because the courts held that the two laws were not preempted by federal immigration law. Clearly in these cases, the litigants had a point, albeit not necessarily a legal one, when they asserted that enrollment in and graduation from a state college or university did not give the undocumented student the residency status needed to work legally in the U.S. after graduation or to avoid deportation prior to or after completing a degree program.

Although the states circumvented the residency issue when they crafted their respective post-secondary in-state tuition statutes, to this day they lack the legal authority to assist undocumented students in any matters concerning potential deportation, expediting the process of obtaining legal residency status, or offering financial aid because immigration and its enforcement remains the domain of the federal government. Any one of the circumstances concerning deportation, the long wait for legal residency status, the inability to receive financial aid, or the inability to work legally after college graduation can derail the plans of even the most diligent and deserving undocumented student.

The U.S. Congress has been working on legislation to alleviate some of these concerns. The Senate’s version is called the Development, Relief and Education for Alien Minors Act of 2003 (the “DREAM Act”), and the House of Representatives’ version is called the Student Adjustment Act of 2003. 18[18] Both would repeal section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and eliminate the penalty states face in not providing post-secondary in-state tuition rates to non-resident U.S. students while still allowing states to set their own in-state tuition policies. In other words, even if this legislation passes, it would still be each state’s decision as to what qualification criteria would allow a student, undocumented or not, to receive in-state tuition benefits.

Both the DREAM Act and the Student Adjustment Act would require undocumented students to register for conditional status, which would protect them from deportation for six to eight years while they complete college. After completing college, these students would receive permanent relief, i.e., a “green card” provided they are of “good moral character,” have not violated their conditional status by, for instance, making a false claim as to citizenship or to receive government benefits, and have no criminal record. This legislation would also allow undocumented students to qualify for federal financial aid, which is not available at the present time.

The DREAM Act and the Student Adjustment Act, however, will only be available for those undocumented students who have lived continuously in the United States for five years after enactment, who have earned a high school degree, and who were at least 12 but not more than 21 years of age on the date of enactment.19[19] These proposed pieces of legislation are geared toward U.S.-raised, but still undocumented immigrant children with the view that they will not only have a chance to complete their post-secondary educational goals but will also be put on an expedited path toward U.S. citizenship. Attaining citizenship or permanent residency status after graduation means these students will be able to work legally in the United States after receiving their college degrees.

No doubt there will be legislative and constitutional challenges to these proposed laws if they do become law. Opponents of these legislative attempts to offer undocumented students post-secondary educational benefits already argue that the expense involved in educating these students will severely burden the states. However, the National Immigration Law Center disagrees. Their exhaustive study indicates that legislation like the DREAM Act will have significant benefits in that it will reduce the drop-out rate in high schools, and the increased incomes from a college-educated workforce would increase tax revenues and save thousands in the social services sector.20[20] Opponents also argue that offering in-state tuition benefits to undocumented students condones illegal immigration. This argument also has little standing because most of these undocumented students have lived in the United States for many years and were brought here as children by their parents. It is doubtful that these changes will encourage any more immigration than is already occurring. Most immigrants come to the United States illegally to work, not to get educational benefits. What these proposed laws aim to fulfill is a decent person’s dream of attaining a better standard of living through education.

It is a fact that more than 60,000 undocumented students are graduating from high schools in the United States each year but only approximately 13,000 enroll in college.21[21] Even if 60,000 undocumented high school graduates enrolled in colleges across the United States each year, these numbers are so small that it is hard to envision these numbers causing the financial hardship on our post-secondary educational institutions that the critics say would occur. Regardless, it is neither in these students’ best interests nor in the interests of our society as a whole to deny these students post-secondary educational benefits if they have been long-term, continual U.S. residents. The Supreme Court in Plyler rightly saw the benefits of offering an education and receiving in return a responsible, productive society. It makes sense to extend the legal thinking in Plyler to post-secondary undocumented students as well. By denying post-secondary in-state educational benefits to non-resident illegal alien students, our society is essentially relegating these individuals to a low socio-economic existence. We live in the information age, and skilled, professional workers are required. Post-secondary education is a critical component in order to compete as skilled and professional workers in a technically-advanced and global environment. It doesn’t seem economically prudent to make the investment of primary and secondary education in these undocumented children only to turn them out and deny them access to a post-secondary education that will ultimately benefit society as a whole. There are many bright, ambitious high school students who should not be denied an opportunity to complete college and legalize their immigrant status.