Equal Access to Postsecondary Education?
The Case of Undocumented Alien Students
A Forum — March 22, 2002
In 1982, the U.S. Supreme Court ruled that a state may not deny school-age undocumented aliens the right to a free public K-12 education. To do so would violate the equal protection clause of the Constitution which applies to any "person," not just to U.S. citizens (Plyler v. Doe). Thus, for the past 20 years most of the estimated 1.5 million undocumented aliens under age 18 have been eligible to receive taxpayer-supported public K-12 education.
When it comes to postsecondary education, however, no such protections apply to undocumented aliens, including the 50-65,000 who graduate from U.S. high schools each year. Rather, conflicting federal and state laws and local practices result in quite diverse and inequitable treatment for those young people wanting to pursue postsecondary education.
At the federal level, the "Illegal Immigration and Immigrant Responsibility Act of 1996" prohibits public colleges from charging undocumented aliens in-state tuition rates, since it is argued, to do so would treat such aliens more favorably than out-of-state residents who are U.S. citizens. As a result, the financial burden posed by non-resident tuition and fees makes it all but impossible for most undocumented aliens to afford attendance at a public college. (Residents attending a California State University campus pay less than $2,000 in tuition and fees while out-of-state students pay about $9,000. At American community colleges, average in-state tuition is $1,600 versus $4,000 for out-of-state students.)
Moreover, under Title IV of the federal Higher Education Act of 1965, only U.S. citizens (and certain non-citizens) can receive federal student financial assistance (loans and Pell grants). Undocumented aliens are ineligible. Legislation pending in the Congress [H.R. 1918 - Representative Chris Cannon (R-UT) S.1291 - Senator Orin Hatch (R-UT)] would make undocumented aliens eligible for federal student aid.
In the states, response to these laws has been quite contradictory. City University of New York, for example, in 2002 ended a 12-year policy of allowing undocumented aliens who attended a New York high school to pay the much lower in-state tuition. (CUNY officials believe that at least 2,788 of its 200,000 students on 20 campuses were living in the U.S. illegally.) As a result, tuition for such students will more than double from $1,600 to $3,400 per semester.
Texas, however, became the first state in June 2001 to legislate in-state tuition for aliens who graduate from a Texas high school, live in Texas for at least three years, and pledge to apply for permanent legal residency. California followed suit last October, and Utah after that.
Wisconsin Governor Scott McCallum, on the other hand, vetoed a legislative decision allowing aliens to pay in-state tuition arguing that the 1996 federal "Immigrant Responsibility Act" law (whose regulations have not yet been promulgated) prohibits benefits to aliens unless the same benefit is provided to all U.S. citizens.
Josh Bernstein, Senior Policy Analyst, National Immigration Law Center, began his presentation by pointing out that while under current law, undocumented students, many previously unaware of their undocumented status, have a right to elementary and secondary public education, federal regulations make it difficult for states to allow in-state tuition rates for these students. Some states (California and Texas) have legislated to provide for their undocumented residents, and other states are working on it. Even when kids are able to go to college, they still are not able to work legally when they get out of college.
The Student Adjustment Act (H.R. 1918) would provide immigration relief to undocumented students who are in the U.S. and have lived a significant portion of their lives in this country. This relief would make it possible for these students to continue their education and fully contribute to their adopted country.
Mr. Bernstein framed the question in two ways. First, as a moral question: Are we a country that punishes children for the behavior of their parents? Second, as a pragmatic one: Can we bear the costs we all face of not educating these students in whom we have already invested for years? He addressed two central Conservative arguments against allowing states to offer undocumented students in-state tuition rates. First, some argue that helping undocumented students encourages illegal immigration. Bernstein responded that most immigrants come to the U.S. for immediate economic help, planning to return home eventually and not planning for their kids to attend college in the U.S. Second, some argue helping undocumented students with college costs is unfair to U.S. citizens' children. But, countered Bernstein, most undocumented students grew up poor and faced many barriers. Equal opportunity to education, he argued, is never unfair.
Dan Stein, Executive Director of the Federation for American Immigration Reform began by stating that there is no doubt education is good for everyone. But proposed legislation to make funding available for undocumented students for higher education renders it impossible for the U.S. to enforce immigration laws. These immigration laws should be respected or, argued Stein, we will see more illegal immigration. Schools, he said, should not be an obstruction to enforcing immigration laws.
Mr. Stein characterized coming to the U.S. illegally as "line-jumping ahead of those waiting in the lines." Taxpayers did not force the parents of illegal children to bring their children illegally; therefore it violates basic principals of fairness and justice to require taxpayers to pay to educate people who are not legally in the U.S.
Alejandra Rincón, Outreach Worker in the Emergency Immigrant Education Program, described the struggles of some of the undocumented students she works with in Houston and recent Texas legislation which seeks to provide for higher education for undocumented students. Texas House Bill 1403 became law in June 2001. It provides for in-state tuition rates for Texas residents without a legal U.S. citizenship who graduate from high school after living in Texas for at least three years. California and Utah passed similar legislation and a number of other states are considering the same.
This brief is from an American Youth Policy Forum held on March 22, 2002 on Capitol Hill, reported by Nancy Martin.
The American Youth Policy Forum (AYPF) is a non-profit, nonpartisan professional development organization that bridges youth policy, practice and research for professionals working on youth policy issues at the national, state and local levels.
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