In-State Tuition
There is a conflict between Federal and State law regarding the
eligibility of undocumented students for in-state tuition rates.
Federal law passed in 1996 prohibits illegal aliens from receiving
in-state tuition rates at public institutions of higher
education. Specifically, Section 505 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996
(Title 8, Chapter 14, Sec. 1623(a))
states: "an alien who is not lawfully present
in the United States shall not be eligible on the basis of residence
within a State (or a political subdivision) 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."
Several states -- Texas, California, New York, Utah, Illinois,
Washington, Nebraska, New Mexico, Maryland (community colleges),
Oklahoma, Wisconsin and Kansas -- have passed
state laws providing in-state
tuition benefits to illegal aliens who have attended high school in
the state for three or more years. Similar legislation is pending in
Florida, Hawaii, Massachusetts, Minnesota,
New Hampshire, New Jersey, North Carolina, Oregon, South Carolina,
Tennessee and Virginia. (Connecticut also passed such a
law, but the governor vetoed it.) The Nevada system of higher
education does not consider immigration status for in-state tuition,
but does require it for a state-sponsored scholarship. Also, some
schools in Georgia provide in-state
tuition benefits to illegal aliens. The Texas law also allows illegal
aliens to receive state student financial aid.
These state laws attempt to circumvent the federal law by simply not
asking students whether they are in the US legally. (The California law,
AB 540, requires
the student to file an affidavit that he/she has filed an application
to legalize his/her immigration status or intends to file an
application as soon as he/she is eligible to do so. So California
doesn't even attempt to maintain the fiction that the school is
unaware of the student's immigration status.) They also circumvent the
law by basing eligibility for in-state tuition on attendance at or
graduation from
an in-state high school and not on state residence.
Subsection 8 USC 1621(d) permits states to provide illegal aliens
with state and local public benefits provided that a state law is enacted
after August 22, 1996 specifically permitting illegal aliens to
receive such benefits. However, this subsection makes a potentially
limiting reference to subsection 1621(a) and so does not override the
restrictions in 8 USC 1623(a). As such, it would appear that the state
laws permitting in-state tuition to illegal aliens are not
permitted by the federal law.
Arizona, Colorado and Georgia ban in-state tuition for illegal aliens and South
Carolina does not allow illegal aliens to enroll in state colleges.
Virginia passed a law barring illegal aliens from receiving in-state
tuition, but it was vetoed by the governor. The state attorney general
then stated that existing state law requires state colleges and
universities to charge illegal aliens higher tuition.
Legislation to ban in-state tuition for illegal aliens is
pending in Alabama, Alaska, Florida, Mississippi, and North Carolina.
A bill to ban in-state tuition for illegal aliens was defeated in
Arizona in March 2005, but a ballot initiative requiring illegal aliens to
pay out-of-state tuition and making them ineligible for state student
financial aid (Proposition 300) was passed in November 2006 and
went into effect on December 7, 2006. States banning in-state
tuition for illegal aliens include Georgia and Colorado. (The
Colorado attorney general ruled on August 14, 2007 that Colorado
students who were born in the US of illegal immigrant parents may
nevertheless pay in-state tuition rates. The argument is that a US
citizen -- the student -- is the beneficiary beneficiary of the
in-state tuition, not the parents, so the parents' illegal status
should have no bearing on eligibility. This follows in the footsteps
of a late-2006 settlement between the State Student Assistance
Commission of Indiana and the ACLU of Indiana, concerning denial of state
scholarships in the Indiana 21st Century Scholars
Program to an otherwise eligible US citizen student because of
her parents' illegal status.)
The heart of the controversy concerning in-state tuition for illegal
immigrants is a conflict between pragmatism, compassion and
fairness. On the one hand, why should children of illegal immigrants
be punished for violations of immigration law by their parents or for
delays caused by INS bureaucracy? Denying illegal aliens in-state
tuition rates denies most of them access to a higher education. Many
of these students will eventually become legal residents. One can also
argue that the cost of not helping these students pursue a higher
education is greater than the cost of helping them. Education
increases tax revenues and decreases spending on welfare, health care
and law enforcement. (The 1997 report The New Americans by
the National Research Council
found that immigrants -- both legal and undocumented -- with a college
education save the government money, while those with just a high
school diploma consume more in services than they contribute in
taxes.) It seems inconsistent to provide illegal aliens
with a free public elementary and secondary school education, only to deny them
access to a postsecondary education. This effectively limits them to a
life of indentured servitude. On the other hand, why should
law-abiding US citizens have to pay higher public college tuition
rates than illegal aliens? They too can be helped by lower in-state
tuition rates, providing future benefits to the state and the
nation. To the extent that in-state tuition rates are intended to
provide a benefit to state taxpayers whose tax dollars support state
colleges, the tuition breaks for illegal aliens are somewhat
inconsistent.
(While only 5 percent of undocumented workers file federal income tax
returns according to the
Mexican Migration Project (MMP),
a much larger percentage have taxes withheld from their paychecks. Of
the roughly 2,100 undocumented workers surveyed by the MMP, as much as
two-thirds report having had federal income taxes withheld from
1997-2002. Other, more conservative studies estimate that about half
of undocumented workers have income taxes withheld from their
paychecks. It is unclear whether the employers deliver the withheld
taxes to the government or are simply pocketing the money. Since very
few undocumented workers file income tax returns to obtain a refund,
effectively these workers are paying taxes at a higher marginal rate
than US citizens. However, a greater percentage of US citizen workers
have income taxes withheld and file income tax returns than undocumented
workers.) Yet the Federal government also lacks a consistent and
enforceable immigration policy, nor the will to devote sufficient
resources to enforce existing immigration law.
This controversy is unlikely to be resolved until the US Supreme Court
hears a case concerning it. (The most likely test case will be a
lawsuit, Day
v. Sebelius, filed on July 19, 2004 to challenge a Kansas law
(76-731a) that allows children of illegal aliens to pay in-state
tuition rates.
However, the US Court of Appeals for the 10th Circuit
ruled
on August 30, 2007 (05-3309)
that the plaintiffs lacked standing to challenge the constitutionality
of the Kansas law and that the plaintiffs lacked a private right of action to
enforce preemption by 8 USC 1623.
The court's decision hinged on the plaintiffs failure to demonstrate
that they had suffered actual "concrete and nonspeculative" harm from
the Kansas law, nor that the injury would be redressed by overturning
the law. In particular, even if the court struck the provision
allowing illegal alien state residents to qualify for in-state
tuition, the plaintiffs would still not be qualified to obtain tuition
rates reserved for residents. Likewise, the plaintiffs failed to
demonstrate a causal relationship between the benefits accorded to
illegal aliens and the tuition charged to nonresident US citizens. As
such, their claimed injury is conjectural and hypothetical, and
unsupported by evidence. Since the
plaintiffs lacked standing to bring their suit,
the appeals court did not evaluate whether the Kansas law violates the equal
protection clause of the fourteenth amendment or the merits of the
preemption claims brought by the plaintiffs.)
On December 17, 2007, the 10th circuit court of appeals denied a
request for a rehearing before the full court.
Most likely the decision will focus on the
Equal Protection Clause of the 14th amendment of the US Constitution,
as did the decision in
Plyler v. Doe, 457 US 202 (1982).
It will also likely overturn state laws, regardless of whether they
provide in-state tuition to illegal immigrants or ban it, since the
authority to regulate immigration belongs exclusively to the federal
government. It might also find that offering reduced in-state tuition
to state residents is unconstitutional.
It is also possible that the decisions may rest on a technicality
concerning the meaning of the word "a". The language in 8 USC 1623(a)
bans in-state tuition for illegal aliens "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." Does the word "a"
mean "any" or "all" or "member of the class of people who are" or does
it mean "one"?
Court cases in Kansas and California have also focused on the use of
the word 'benefit' in 8 USC 1623, arguing that Congress's intent was
to restrict monetary benefits and that in-state tuition is not a
monetary benefit but a status benefit. In particular, "state or local
public benefit" is defined in 8 USC 1621(c)(1)(B) as benefits for
which "payments or assistance are provided to an individual, household,
or family eligibility unit by an agency of a State or local government
or by appropriated funds of a State or local government"
and 8 USC 1623(a) uses the word "amount" in connection with the term
"postsecondary education benefit". The crux of the argument is that
reduced in-state tuition is not a monetary benefit because payments are
never made to the individual or family.
However, one could also argue
that Congress's intent in passing this law was clearly
to prohibit in-state tuition for illegal aliens in addition to state
financial aid, and that reduced in-state tuition falls within the scope
of the term "assistance".
There is pending legislation in the House and Senate that would repeal
the Federal restriction and make college more affordable for illegal
aliens. (The original 2003 Senate version of the bill was known as the
Development, Relief and Education for Alien Minors (DREAM) Act
(S 1545)
and the original House version of the bill was known as the
Student Adjustment Act (HR 1684).
These bills were reintroduced in the 110th Congress as
the DREAM Act of 2007 (S.774) and the American Dream Act (H.R.1275), with the latter bundled into the STRIVE Act of 2007 (H.R.1645).)
The DREAM Act would permit states to determine
state residency for higher education purposes by repealing
Section 505 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996. It would also provide a mechanism for
undocumented students of good moral character to become legal
permanent residents and to qualify for Federal student aid.
Additional information can be obtained from the
National Conference of State Legislatures
site.
Scholarships
Another potential source of financial aid is private scholarships.
There are a few private scholarships for undocumented
students that do not require the student to be a US citizen or
resident or have a social security number in order to apply.
Information about such scholarships can be found in the
FastWeb scholarship search.
Other good resources include the
Mexican American Legal Defense and
Educational Fund (MALDEF)
(see especially the
MALDEF List of Scholarships for Undocumented Students
and the
MALDEF Scholarships)
and the
Salvadoran American Leadership and Educational Fund.
Another good resource for California students is
Latino College Dollars: Scholarships for Latino Students.
This directory directory includes several scholarships that do not
require US citizenship and are available to undocumented students.
See also
Ayuda Financiera del Estudiante en Español.
Federal Student Aid
If the student is a US Citizen but one or more parents are
undocumented, the student is eligible for federal student
aid. However, if the parents supply a fake or stolen social security
number (SSN) on the form, the student's FAFSA will be rejected when
the parent's social security number fails to match. The FAFSA may also
be rejected when the parents submit a SSN or Taxpayer Identification
Number (TIN) that is valid for work purposes only. If the parents do
not have a social security number or the social security number fails
the match, they should use 000-00-0000 as their social security number
on the FAFSA form.
