More On In-state Tuition

Though I never liked the emphasis on in-state tuition when dealing with the DREAM Act - all DREAMERS would gladly take legal status in lieu of in-state- but with DREAM Act unlikely to be brought up until 2009, the battle for lower higher education costs for all takes center stage.


While surfing the web for more information on in-state tuition I came upon an interesting paper titled Postsecondary Educational Access for Undocumented Students: Opportunities and Constraints. The paper is long, thirty-five pages in length. I'll highlight in this post the sections I found most important.

I found this particular passage discussing Plyer vs Doe very interesting in regards to the debate about accepting undocumented students into institutions of higher education:

One of the most important statements to date on undocumented immigrants’ access to public education was the landmark US Supreme Court case Plyler v. Doe (1982), a case related not to postsecondary schooling but to K-12 education.
In a 5-4 decision, the Plyler Court held that the State of Texas could not deny undocumented immigrant children access to free K-12 public education. While the Court did not explicitly extend the same protections to undocumented students at the college level, Plyler v. Doe is relevant to the debate at hand for at least two reasons. First, the Court held that states must show that they have a compelling interest in limiting access to education for a particular group, and that in this case Texas had failed to do so. Indeed, the Court found that there was no significant financial burden imposed by undocumented immigrants on the state and rejected the claim that preventing undocumented immigrants
from accessing education would be an effective deterrent to further illegal immigration.

Second, while holding that education is not a fundamental right, the Court stressed that denying K-12 education to undocumented children amounted to creating a “lifetime of hardship” and a permanent “underclass” of individuals. This is significant, because at the time of the Plyler decision a high school diploma could very well lead to a well-paying job that could help one move up the socio-economic ladder. Indeed, Justice Brennan’s majority opinion is explicit in its declaration of the link between education and social mobility. Today, though, nearly a quarter of a century later, a high school diploma creates fewer opportunities for those entering the labor market. Arguably, the ticket to social and economic mobility has increasingly become a college degree, with college graduates’ average annual earnings almost double those of high school graduates and nearly three times those of high school drop-outs. While in 1982 the Supreme Court sought to prevent the creation of an underclass of undocumented individuals by assuring access to free public K-12 education, the new educational “ticket to the middle class” may well be a college degree.8 By today’s standards, then, not extending similar protections to undocumented students once they reach college age may create the very socio-economic chasms the Court had originally sought to avoid.

Later on in the paper the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) is discussed, as well as how these acts did little to alleviate all the confusion of undocumented immigrants and higher education:

Hence, according to Section 505 of the IIRIRA: 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 an amount, duration, and scope) without regard to whether the citizen or national is such a resident (8 U.S.C. § 1623).

The Act further states:
A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible … through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility(8 U.S.C. § 1621).

For its part, the PRWORA declared that:
An alien who is not a qualified alien is not eligible for any Federal public benefit [including] any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States (8 U.S.C. §1611).

Rather than settling the issue of undocumented students and higher education, however, the vagueness of these statutes has led to significant differences of opinion concerning Congress’s intent. Generally, though, there is agreement about two aspects of the laws: 1) neither the PRWORA nor the IIRIRA prohibit public postsecondary institutions from admitting undocumented students; and 2) under these statutes, undocumented individuals are not eligible for public benefits that entail actual monetary assistance, such as federal financial aid
programs that provide student loans or work study payments.

What is not clear, however, is whether the federal statutes confer on states the authority to decide whether or not to grant in-state tuition to undocumented students. Hence, Michael Olivas (2004) interprets the IIRIRA as giving states the authority to determine state residency for tuition purposes (a state benefit) and asserts that this state residency (and thus in-state tuition) does not entail a monetary benefit. Similarly, Ruge and Iza (2005) argue that the statutes do not prohibit states from granting in-state tuition as long as qualified out-of-state U.S. citizens can also receive the same benefit. Others, including the governor of Maryland, a former Wisconsin governor, and a former attorney general of Virginia, though, have cited the IIRIRA as the primary legal barrier to enacting state laws providing in-state tuition to undocumented students.

One last part I wanted to point out was the table on page 14 of the paper showing the Benefits of Higher Education. All these public benefits are good reasons for enacting the DREAM Act. Some of the benefits are listed below:

1. Increased tax revenue
2. Greater Productivity
3. Increased spending on consumer goods and services
4. Increased workforce flexibility
5. Decreased reliance on government financial support
6. Reduced crime rates