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When college students are “illegal”

Georgia is one of those states (along with Arizona, Colorado, and Oklahoma) that has passed legislation denying the children of “illegal immigrants” access to lower in-state tuition rates.  Although the decision hits students in that category very hard, I don’t have the impression that the legislature struggled with the issue (perhaps this comes as little surprise to those familiar with Georgia’s political conservatism), nor that Georgia’s citizens were especially upset about this outcome.  This is so despite the fact that it ought to be a little hard to muster antipathy for young people whose academic work has qualified them for university work, and whose “crime” is wanting an affordable education; still, even many liberal voters would reply that such students should not illegally access such benefits, any more than a resident of (say) Rhode Island should be permitted to lie to qualify for Georgia’s in-state rate.

The law reflects one of those avenues taken by states wanting to show how tough they are on the undocumented, although the main victims are often college-aged teenagers who did not make the decision for their families to enter the United States and are thus arguably innocent of the illegalities committed by their parents in skirting legal avenues to American residency.  Perhaps by the time of college such students, having typically attained the age of majority, might be judged as knowingly perpetrating a fraud, but the alternatives are rather brutal:  is a kid who only speaks English and grew up from perhaps the age of 6 months and knows nothing other than the United States really supposed to pick up and move to a parent’s country of origin of which he has no knowledge or real connection?  Of course not, comes the response; let that teen pursue the process of legal residency and American citizenship:  but as one might imagine such a path is not readily available to those who entered illegally and have avoided sanction for perhaps 18 years.

The logic of sparing the younger children of the undocumented access to a state’s educational resources was found convincing by a United States Supreme Court decision (Plyler v. Doe) issued in 1982 (and, as you may recall, this logic was defended on humanitarian grounds by Mike Huckabee in running an otherwise tough anti-immigration conservative campaign for president).  That decision guarantees a free education for K-12-aged children, but for the roughly 65,000 (a long circulating figure first published by the Urban Institute) who lack legal status and graduate every year from American high schools a legal limbo descends.

The decision was close, 5-4, and mainly turned on an intermediate scrutiny analysis that found that states lacked a substantial state interest in restricting their educational systems to lawful residents.  And the reasoning of the ruling makes it hard to extend to college-aged students.  No constitutional right to education was found in that decision, and when the court ruled that undocumented residents are not to be considered a “suspect class,” they also prevented subsequent courts from using the standard of “strict scrutiny.”  That is, in cases where groups have been historically subject to discrimination (such as racial minorities and women), the state has to come up with an especially compelling reason to justify a policy that discriminates against them.  That highest level of scrutiny does not pertain here.

This issue has drifted in and out of the public consciousness ever since that 1982 Supreme Court decision, and the case for providing lower tuition rates has been eloquently made in a number of law review essays.  And I do not want to imply that all of the states that have acted on this issue have repealed such benefits; to the contrary, as many as twenty-five states have assured lower tuition rates to undocumented kids raised in their state, including the main ones where undocumented workers reside (including Texas, Illinois, Washington, New York and California).  In Texas a study done by its Comptroller in 2001 actually found that every dollar invested in higher education for an undocumented worker returned five dollars to the economy in other ways.  Still, states wanting to take protective action must engage in some act of legerdemain, for the 1996 federal “Illegal Immigration and Immigrant Responsibility Act” can be read as preventing such allowances.  The relevant section of that Act reads:

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 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.

Because this provision seems to be backed by a similar provision in the United States Code, the states that have not acted often default to a position that their hands are tied, and benefits thus unavailable.

Advocates of denying in-state tuition benefits to a child who has lived almost her entire life in, say, St. Louis and who wants to attend the University of Missouri at the discounted rate see the issue in zero-sum terms:  every dollar lopped off her tuition bill is a dollar lost that could have been spent to expand access or better quality resourcing for a student there legally.  It is the same logic that sees undocumented workers as “stealing” jobs from American workers and its articulation has a powerful appeal when the scarcity of both jobs and college seats is compounded by economic downturn.  Moreover, although the regulation of immigration is mainly a federal power, the states are sensitive to the financial burdens imposed on their public services (health and education especially) when undocumented residents arrive in their jurisdiction.  Others argue that governments should not invest in the educational development of young women and men who are legally unlikely to work in the States after graduation.

There are no easy solutions short of a federally mandate that would expand the K-12 guarantee into the college years.  In many public systems university presidents have the authority to admit a limited number of students on an in-state waiver – these often go to lure high quality athletes or musicians to a campus – but one might understand presidents reluctant to use those waivers for undocumented students given the adverse publicity such a move might attract.  In several systems, I know that privately connected university fundraising foundations have quietly tried to raise money to handle the tuition demands by tapping private donors, but I’ve also heard (admittedly only anecdotal) evidence that even loyal donors are nervous about selling such a strategy to their boards of directors.

The ramped up animosity against those lacking legal residency status, whether justified or not, has more ambiguous spill-over consequences for the general population of international students, who often have to endure the bureaucratic hurdles raised by post-9/11 security fears and anti-immigration sentiment.  Any mid-level university administrator trying to ease the path for arriving international students or faculty is familiar with the complex, expensive, and frustrating documentation processes that intimidate new colleagues from abroad and complicate the task of internationalizing the educational experiences of American-born students.  Even if adopted for good reason, the system too often seems designed to deter brilliant international students from studying in the United States and enriching the classrooms they would otherwise enter.  At a communication conference recently a colleague told me about an international student orientation held on her campus which began when university officials demanded that all passports and documentation paperwork be handed over for review – the intention was not hostile, and the purpose was apparently just to confirm that everything was in order, but some of the students were terrified, in some cases having arrived from countries where such round-ups foreshadowed deportation or worse.  These were students attending legally at what was supposed to be a welcome orientation, nonetheless caught up in the overly hyped drama created by university officials who fear that letting undocumented students slip through their systems places at risk their campus’ access to federal student loan money for all their students.

Too much of the national immigration debate is underwritten by pure animus, but one can take seriously the principled position that a state ought to have the right to prioritize its investments in its own citizens.  But there is a pernicious cost to enforcing such a principle too rigorously.  Students who have been embraced as welcome equals in our high schools are suddenly forced to encounter a much rougher world of quiet discrimination and the denial of educational opportunity.  These students, denied access to expensive college educations, often lose the hope that intellectual engagement can make their lives and communities better.  Beyond the political repercussions is thus the risk of creating a generation of disillusioned student scholars left with no effective choices.  The kid from Montana who cannot afford North Carolina’s out of state rates can stay home and pay very little for a great education; the children negatively effected by this policy have no where to turn.  And that is a difficult outcome to defend.

SOURCE:  Eddy Ramirez, “The Crash Course in Citizenship – A New Front Line in the Immigration Debate:  Access to Higher Education,” US News & World Report, 18-25 August 2008, pgs. 46-47; Andrew Stevenson, “Dreaming of an Equal Future for Immigrant Children: Federal and State Initiatives to Improve Undocumented Students’ Access to Postsecondary Education,” Arizona Law Review 46 (Fall 2004): 551-580.


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