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Right and Access to Public Education Based on Immigration Status by Sage Kashner

June 9, 2020

Intro

For the majority of children school is a significant part of their lives. On average, American children spend nearly seven hours each day in school. School can help kids develop social skills as well as learn new skills. Higher education also provides the chance to develop more specialized skills, build a network of peers and friends, and can increase earning potential after graduation (1).

Undocumented immigrants and the children of undocumented immigrants can attend public primary and secondary schools regardless of their status or their parent’s status. Unfortunately, attending public colleges can be more complicated, but there are ways undocumented students can attend.


Primary and Secondary Education 

In 1982, in the landmark Plyler v Doe case, the US Supreme Court ruled 5-4 that public schools may not deny children an education based on their immigration status. This determined that any child in the US, regardless of documentation, is entitled to a kindergarten through high school education. 

The Supreme Court majority opinion cited the Equal Protection Clause of the 14th Amendment, which Cornell law summarizes as “a governmental body may not deny people equal protection of its governing laws” (2). Supreme Court Justice William J. Brennan, writing for the majority, argued that “whatever his status under the immigration laws, an alien is a ‘person’ in any ordinary sense of that term” (3). Essentially, the court established a right to education for all children that cannot be revoked by state or federal legislators. 

 According to the American Immigration Council (4), a nonprofit advocacy organization, in the years since Plyler v Doe, states and localities have sought to circumvent the ruling and bar undocumented children from public schooling. The AIC lists three instances:

  1. California’s Proposition 187, which would have “require[d] police, health care professionals and teachers to verify and report the immigration status of all individuals, including children” (5). A US District Judge struck down the proposition in 1998. Requiring teachers to report the immigration status of their students to immigration authorities would not only violate the spirit of Plyler v Doe and the Federal Educational Rights and Privacy Act, but would infringe on the federal government’s constitutional authority over immigration. 
  2. In Illinois where an individual was denied the right to schooling because his tourist visa expired. The Illinois State Board of Education intervened and threatened to withhold funding to the school, so they acquiesced and allowed the student to attend. 
  3. In Alabama in 2011, newly enacted legislation required schools to “determine the immigration status of all newly enrolling students,” until the legislation was blocked by a federal appellate court. In 2013, the provision was eliminated when Alabama agreed to a settlement. 


The Cost of College Tuition

Plyler v. Doe and subsequent federal rulings may have secured every child in the United States the right to public education through high school regardless of immigration status, but higher education is not quite as simple. There is no federal or state law prohibiting undocumented immigrants from entering US colleges and universities, but there are a myriad of other obstacles in the way. 

These obstacles are evident in the statistics collected by the Pew Research Center: 49 percent of undocumented immigrants in the US who have graduated high school attend college compared to 71 percent of US-born residents (6).

One of the obstacles facing undocumented immigrants’ access to higher education is the cost of tuition. The Pew Research Center asserts, “The 2007 median household income of unauthorized immigrants was $36,000, well below the $50,000 median household income for U.S.-born residents.” The price of college is a significant limiting factor for undocumented immigrants.

According to the College Board, in 2020, the average cost to attend a public four-year college is $9,410 per year if you are paying in-state tuition and $23,890 a year if you are paying out of state tuition (7). Higher education is more affordable at public universities for in-state residents, but that can get complicated for undocumented immigrants. 

Section 507 of the US Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (8) states that undocumented immigrants cannot recieve benefits for post-secondary education based on residence if US citizens do not also receive the same benefit regardless of residence. Nevertheless, according to the National Conference of State Legislatures (9), 17 states have passed legislation that extends in-state tuition rates to undocumented students fulfilling certain criteria. The criteria vary, but generally involve attendance of an in-state high school for a certain number of years as well as application for legal immigrant status. 

A list of states providing in-state tuition for undocumented immigrants can be found here

In 2010, California’s Supreme Court unanimously ruled that providing tuition to undocumented students based on high school attendance was not in violation of the IIRIRA. California Supreme Court Justice Chin wrote: “Congress specifically referred to residence—not some form of surrogate for residence—as the prohibited basis for granting unlawful aliens a postsecondary-education benefit.” (11) In-state tuition rates were based on high school attendance and not on residence, and therefore did not violate the IIRIRA’s requirement that any post-secondary aid provided to undocumented immigrants based on their residence must be provided to all US citizens. 

Oklahoma and Rhode Island also provide in-state tuition to undocumented immigrants, but they do so through Board of Regents decisions. Virginia also provides in-state tuition, but only for undocumented immigrants covered under Deferred Action for Childhood Arrivals (DACA). 

In total, 20 states have mitigated one of the obstacles preventing undocumented immigrants from receiving post-secondary education by allowing in-state tuition rates at public universities. Seven of these states allow undocumented students to receive financial aid. 

Arizona, Georgia, and Indiana have passed legislation prohibiting in-state tuition rates for undocumented citizens. Alabma and South Carolina went even further and prohibit undocumented immigrants from applying to any public post-secondary institution. Virginia also prohibits undocumented students from attending public colleges following a recommendation from their attorney general, but have not written the restriction into law. 


Receiving Aid

While some states may have mitigated the cost of attending public colleges, the cost can still be steep for families making well under the average for US families. For US citizens, federal loans and grants can be useful tools for paying off the cost of college, but according to the College Board: “undocumented students cannot legally receive any federally funded student financial aid, including loans, grants, scholarships or work-study money” (11). Without loans or grants, and with no way to work at the college for work-study, paying even in-state tuition can be difficult. 

Private scholarships are an option, but the College Board says “most private scholarship funds and foundations require applicants to be U.S. citizens or legal residents”. There are a number of scholarships that are available to undocumented students and the Mexican American Legal Defense and Educational Fund has a list (12) of scholarships that don’t inquire about immigration status or require a social security number. Nevertheless, the options are only a portion of those accessible to US citizens. 


Endnotes

Public primary and secondary schools may be legally protected under Plyler v Doe, but public colleges are not granted the same universal access. Higher education can lead to more higher paying job opportunities, an expanded understanding of the world, new skills, and even a level of prestige. 

There may not be a federal law against undocumented immigrants attending post-secondary education, but there are many obstacles, which vary from state to state. Undocumented immigrants are kept out of higher education and all of its benefits through a number of barriers, some legal and some financial. 

Multiple attempts have been made to provide better opportunities for young undocumented immigrants, including the DREAM act and DACA. Currently, DACA is only accessible to recipients who have already received it and are renewing old applications. DACA is not taking any new applications currently (13).

 

Works Cited 

  1. “10 Reasons to Get Your College Degree.” Post University, May 7, 2020. https://post.edu/blog/10-great-reasons-to-get-your-college-degree/.
  2. https://nces.ed.gov/surveys/sass/tables/sass0708_035_s1s.asp.
  3. “Commerce Clause,” Legal Information Institute (Legal Information Institute, 2005), https://www.law.cornell.edu/wex/commerce_clause, 
  4. Plyler v Doe (Supreme Court June 15, 1982).
  5. “Public Education for Immigrant Students: Understanding Plyler v. Doe.” American Immigration Council, June 15, 2017. https://www.americanimmigrationcouncil.org/research/plyler-v-doe-public-education-immigrant-students.
  6. “CA's Anti-Immigrant Proposition 187 Is Voided, Ending State's Five-Year Battle with ACLU, Rights Groups.” American Civil Liberties Union, July 29, 1999. https://www.aclu.org/press-releases/cas-anti-immigrant-proposition-187-voided-ending-states-five-year-battle-aclu-rights.
  7. “A Portrait of Unauthorized Immigrants in the United States.” Pew Research Center's Hispanic Trends Project. Pew Research Center, May 30, 2020. http://www.pewresearch.org/hispanic/2009/04/14/a-portrait-of-unauthorized-immigrants-in-the-united-states/.
  8. “College Costs: FAQs - BigFuture.” College Board. Accessed June 5, 2020. https://bigfuture.collegeboard.org/pay-for-college/college-costs/college-costs-faqs#!
  9. Immigration Reform and Immigrant Responsibility Act of 1996 (1996).
  10. Liu, Michelle, and Suzanne Hultin. “Undocumented Student Tuition: Overview.” Undocumented Student Tuition: Overview, September 19, 2019. http://www.ncsl.org/research/education/undocumented-student-tuition-overview.aspx.
  11. Keller, Josh. “California Supreme Court Upholds Law Giving In-State Tuition to Illegal Immigrants.” The Chronicle of Higher Education. The Chronicle of Higher Education, November 15, 2010. http://www.chronicle.com/article/California-Supreme-Court/125398/.
  12. “Advising Undocumented Students.” Education Professionals, February 21, 2017. https://professionals.collegeboard.org/guidance/financial-aid/undocumented-students.
  13.  “Scholarship Resource Guide.” MALDEF, 2020. https://www.maldef.org/resources/scholarship-resource-guide/.
  14. “Consideration of Deferred Action for Childhood Arrivals (DACA).” USCIS, September 5, 2017. https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca.



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