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Over
the past century, few issues in the public policy arena have aroused as
much debate and passion as those surrounding immigration to this
country. While policymakers and citizens alike point with pride to our
heritage as a nation of immigrants, rising concern over illegal
immigration and accountability for legal immigrants has given rise to a
strong anti-immigration sentiment in recent years. Moreover, the events
of September 11, 2001 have had a profound and lasting impact on how
Americans view these issues. At the same time, public higher education institutions are faced with the immediate question
of how to serve a relatively small but significant (and growing) number of students from families headed
by undocumented aliens (commonly referred to as illegal immigrants-see left). While it is difficult
to precisely gauge the number of undocumented alien students in the United States, the Urban Institute
estimates
that in 2000, there were as many as 79,000 undocumented aliens under 21 who had graduated from U.S. high
schools but not enrolled in college, and as many as 607,000 undocumented aliens age 12 to 20 enrolled
in U.S. schools1. Many of these students plan to seek postsecondary education to improve their personal
and economic prospects, but public policy has not clearly or consistently addressed their status regarding
access to the nation’s colleges and universities.
Lawmakers at the federal and state levels seek to accommodate these students, who they
view as a potential source of human capital, by pursuing measures that would make them eligible for resident
tuition status, subject to certain conditions. Such efforts have sparked opposition from policymakers
(and their constituents) who believe that scarce public resources and benefits should not be conferred
on those who are in the United States illegally, whether by choice or not. The resulting policy debate
has made its way to the forefront of the policy agenda, making it essential for higher education leaders
and policymakers to understand the history of this issue, current developments in the statehouses and
in Washington, and the implications of policy decisions in this area.
...TOP
Historical Context
Within
the past two decades, lawmakers and the courts have taken significant
action with respect to the status of alien students. While current
statutes and legal precedents are relatively clear about the status of
undocumented aliens in primary and secondary education, more ambiguity
exists at the postsecondary level. Two U.S. Supreme Court cases are significant in the consideration of this issue. In Toll v. Moreno
(1982), the Court ruled that the University of Maryland could not discriminate against unauthorized alien
students in setting
in-state tuition and fees2.
The University’s policy, which stated that citizens and legal
immigrants could obtain in-state status, but that certain non-immigrant
aliens could not, was considered a violation of the Supremacy Clause of
the U.S. Constitution. The Supremacy Clause establishes that a state
statute is void to the extent that it conflicts with a federal statute;
the conflict must be found either where compliance with both federal
and state law is impossible or where the state law stands as an
obstacle to the accomplishment and execution of the full purposes and
objectives of Congress. In Plyler v. Doe (1982), the Court ruled that any child, regardless of immigration status, could enroll
in elementary and secondary school. In its decision, the Court held that denying children an education
would only perpetuate the formation of an underclass of citizens who would probably remain in the United
States for the rest of their lives3.
Discrimination against these children would punish them for the acts of their parents. The Court’s ruling
did not reach to postsecondary education.
In 1996, Congress sought to clarify the status of undocumented alien students, but with limited success.
Under Section 505 of the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), states are prohibited from providing a postsecondary education
benefit to an unauthorized alien student if a
U.S. citizen is not eligible for the same benefit. Because the federal government has never issued formal
regulations or guidance to the general public to specify how the provision would be enforced, the law
has been interpreted and implemented differently by states and their higher education institutions.
However, states that have authorized resident tuition for undocumented aliens maintain that their policy
does
not conflict with IIRIRA because residency standards for undocumented aliens are higher than those for
non-resident U.S. citizens.4
...TOP Recent Federal Actions
Update: Lawmakers in the 108th Congress have introduced one bill allowing states to determine the residency
status of alien students for setting tuition rates. Congressman Chris Cannon (R-Utah) introduced H.R.
1684, which repeals provisions in the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 to permit states to grant undocumented aliens in-state residency status.
Lawmakers in the 107th Congress introduced four bills regarding the immigration and tuition status of
undocumented alien students. Under all of the measures, such students would be eligible for federal
student aid once they attain legal status. To gain legal status, unauthorized alien students would
have to complete a process called cancellation of removal.
All four bills would enable eligible unauthorized
alien students to go through this procedure, which is a discretionary form of relief for which an alien
can apply while in removal proceedings before an immigration judge. If cancellation of removal is granted,
the alien student’s status would be adjusted to that of a lawful permanent resident (LRP).
While
the number of aliens who can be granted cancellation of removal is
limited to 4,000 each fiscal year by the Immigration and Nationality
Act (INA), but three of the proposed measures would exempt unauthorized
alien students from the limit.
• Senator Orrin Hatch (R-UT) and Senator Richard Durbin (D-IL) introduced S. 1291, the “Development,
Relief, and Education for Alien Minors (DREAM) Act,” which would allow students between the ages
of 12 and 21 who have been in the U.S. for five years to apply for legal residency upon graduation
from high school. S. 1291 would establish a temporary cancellation of removal authority that would
require
unauthorized alien students be at least 12 years old in order to be eligible for lawful permanent
resident (LPR) status, and would repeal the existing language in IIRIRA regarding extension of benefits
to undocumented alien students. The decision to grant in-state tuition to these students would be left
up to the states. An amended version of the bill was
passed by the Senate Judiciary Committee in June 2002 and awaits full Senate review, anticipated in
the 108th Congress.
•
H.R. 1582, the “Immigrant Children’s Education and Advancement Dropout Protection Act of
2001,” introduced by Representative Luis Gutierrez (D-IL), would also repeal the existing IIRIRA
language. Moreover, H.R. 1582 would require that undocumented alien students have a continuous physical
presence in the United States for five years preceding their application for admission to a higher
education institution, demonstrate good moral character, and be enrolled in secondary school or pursuing
admission
to an institution of higher education to be eligible for cancellation of removal.
•
Representatives Chris Cannon (R-UT), Howard Berman (D-CA) and Lucille Roybal-allard (D-CA) introduced
H.R. 1918, the “Student Adjustment Act of 2001.” Like S. 1291 and H.R. 1582, H.R. 1918
would remove the existing IIRIRA language, and would recognize young people who have good character;
have lived
in the United States for at least 5 years; are in school at 7th grade level or above; and are under
21 years of age. The bill’s eligibility requirements on cancellation of removal are similar
to those in H.R. 1582.
•
H.R. 1563, the “Preserving Educational Opportunities for Immigrant Children Act of 2001,” introduced
by Representative Sheila Jackson Lee (D-TX), would remove the existing IIRIRA language and require
an undocumented alien student to maintain continuous physical presence in the United States for
three years
preceding an application to a higher education institution. Unlike the other bills, H.R.
1563 would make relief available through cancellation or removal to alien students of any age and does
not
contain educational attainment/attendance requirements5.
...TOP
State Actions
While Congress considers changes in current federal immigration law,
the states are moving forward on their own measures pertaining to
undocumented alien students. A small but growing number of states have
authorized extension of resident tuition classification to these
students (under specified conditions), with several more states
considering similar measures in their 2003 legislative sessions. States
that have approved or are proceeding with tuition provisions for alien
students are doing so on the premise that such provisions (as
constructed) do not extend a residency benefit not available to U.S.
citizens. ...TOP
Alaska
H.B. 39, which exclusively permits U.S. citizens and lawful permanent residents who have resided in Alaska for at least one
year to qualify for resident tuition rates was considered in the House Education Committee but no action was taken.
Arizona
The 2003 Legislature is considering several measures pertaining to
residency status for alien students. House Bill 2518 would confer
resident student status on undocumented aliens who:
a) attended an
Arizona high school for at least three years;
b) graduated from an
Arizona high school or received an equivalency diploma in the state;
c)
files an affidavit with a postsecondary institution stating that they
will file an application to legalize their status as soon as they are
eligible to do so.
House Bill 2243, however, would bar public colleges and universities in
the state from admitting or enrolling students "not legally present in
the United States," and would required postsecondary institutions to
notify the state's Board of Regents, the state's attorney general, and
the U.S. Immigration and Naturalization Service if it determines or
"
reasonably suspects" that an undocumented alien is in attendance at the
institution.
...TOP California
Under a state law approved in 2001, the California Community Colleges and the California State University
System can consider unauthorized alien students for in-state tuition if they attend a California high
school for at least three years, graduate from a California high school, and sign an affidavit pledging
to apply for permanent residency as soon as they are eligible. The law also extends to the University
of California pursuant to an affirmative vote of its regents, which occurred in January 20026.
Legislation has recently been filed to expand the scope of this law to include financial aid. Assembly
Bill 153 would require the California State University Board of Trustees and the California Community
College Board of Governors to make financial aid programs administered by the state of California available
to non-resident students who qualify for in-state tuition “to the full extent permitted by federal
law.” ...TOP Colorado
In 2002, Hispanic elected officials and community leaders began framing a state legislative agenda that
includes legislation to allow children of undocumented immigrants to pay in-state tuition at Colorado
public colleges and universities7. A recent survey of Colorado residents, however, found that over half
believe undocumented alien students should be ineligible for in-state tuition rates at the state’s
colleges and universities, even if they have lived in the state long enough and are academically qualified8.
The issue received considerable attention following an incident in
which Congressman Tom Tancredo called on the U.S. Immigration and
Naturalization Service (INS) to investigate the immigration status of a
student with honors who was also an illegal immigrant. Tancredo called
for the student and his family to be deported. Governor Bill Owens,
Denver Mayor Wellington Webb and Congressman Mark Udall came to the aid
of the student9.
House Bill 1178, failed to pass the during the 2003 legislative
session. The bill conferred in-state tuition status on undocumented
alien students who: a) graduate from a public or private high school in
the state or receive a GED; b) attend a public or private high school
in the state for at least three years immediately preceding high school
graduation or receipt of a GED; and c) provide an affidavit to a
Colorado postsecondary institution that they will file an application
for LPR status as soon as they are eligible to do so. ...TOP
Delaware
H.B. 222 grants in-state tuition to undocumented aliens if the student meets the following requirements:
1) the student has resided with a parent or guardian in the state of Delaware while attending a public
or private high school in the state for at least three years, 2) the student registers in a public
institution of higher education, and 3) provides the institution with an affidavit stating they will
apply for citizenship at the earliest opportunity they are eligible to do so.
Institutions are prohibited from awarding a degree to such a student if the student fails to provide
the affidavit or pay the difference between non-resident tuition rates and the in-state rate under which
they were admitted.
Florida
Two bills died in the House Appropriations Committee that would have established residency to undocumented
aliens. House Bill 27, introduced in the 2003 Legislature, would extend resident status to non-resident
aliens who: a) have resided in Florida for at
least two years; b) attended and graduated from a State Board of
Education approved high school or received a high school equivalency in
the state; and c) have filed an affidavit with a community college or
state university declaring that the student has filed for legal
immigrant status or will apply as soon as the student is eligible. \
Similarly, H.B. 119, filed weeks after H.B. 27, had more stringent qualifications to establish residency.
This bill required students to live in Florida for three years consecutively in order to qualify for
resident tuition rates. ...TOP Georgia
The Georgia Board of Regents issued a memorandum in 2000 stating that there is no legal barrier to illegal
immigrants attending college if they graduate from Georgia high schools. Since then, many institutions
have regarded out of state tuition as a barrier to access of higher education.
The Georgia House of Representatives then considered H.B. 1810 during the 2001-2002 legislative session.
This bill would have allowed resident aliens to qualify for in-state tuition if they had lived in Georgia
at least one year prior to enrolling in a Georgia University or College. This bill would also have allowed
such students to be eligible for Georgia’s HOPE scholarship that covers expenses for tuition and
fees. It failed to pass the house.
In 2002, then-Governor Roy Barnes encouraged state college and university
presidents to use a longstanding university system policy, which allows each campus to exempt up to
two percent of an entering class
from paying non-resident tuition rates, to allow undocumented aliens to pay in-state tuition10.
Typically, this program is used to assist athletes or outstanding students from other states. Governor
Sonny Perdue,
who took office in January, has not issued a position concerning undocumented alien students.
...TOP Hawaii
Lawmakers will take up House Bill 873 during its 2003 session, which calls for conferral of in-state
status on undocumented alien students who: a) have attended high school in Hawaii for two or more years;
b) graduate from high school in Hawaii or attain the recognized equivalent; c) register and enroll
at the University of Hawaii; and d) file an affidavit with the university stating that they have filed
an application for LPR status or will do so when eligible.
...TOP Illinois
The Illinois Legislature is considering HB0060, which would
confer resident status on alien students who: a) attend an Illinois high
school for at least three years; b) graduate from an Illinois high
school or receive a recognized equivalent; c) register at a state higher
education institution and sign an affidavit declaring that they will
seek LPR status as soon as they are eligible11.
...TOP Kansas
Update:
The bill passed the House, but never received a hearing in the Senate Education Committee.
House Bill
2145, introduced in the 2003 legislative session, would classify undocumented alien students as residents
for tuition purposes if the student: a) has attended and graduated from an accredited
Kansas high school or received a GED certificate issued in Kansas; and b) has lived in Kansas for
a period of at least three years prior to enrollment at a postsecondary institution in the state.
...TOP Maryland
Update:
The Governor vetoed this bill.
The General Assembly is currently considering House Bill 253, which would
provide in-state tuition status to undocumented alien students who: a) attend a Maryland public or
private secondary school for at
least three years; b) graduate from a Maryland public or private secondary school or received a high
school equivalency credential in the state; c) register at a public college or university in the
state (starting in Fall 2003); d) provide an affidavit to the college or university stating that they
will
file an application to become a permanent resident within 30 days of becoming eligible to do so;
and e) apply to a public college or university in the state not more than five years after graduating
from
a Maryland high school or receiving an equivalent credential.
...TOP Massachusetts
Senate Bill 237 would grant resident tuition status to undocumented
aliens that have attended high school in the state for three or more
years and graduated from a Massachusetts high school or received a
recognized equivalent. ...TOP
Minnesota
Legislation to offer resident tuition to undocumented alien students was introduced in the 2002 legislative
session, but was unsuccessful. Similar legislation has not been introduced to date in the 2003 session12.
...TOP Nebraska
Update:
No action was taken on this bill.
A measure before the 2003 Legislature (LB 152) would provide resident
tuition status to undocumented alien students who: a) graduate from a public or private high school
in the state or receive an equivalency
certificate in the state; b) reside in Nebraska for at least three years before graduating from high
school or receiving an equivalency certificate; c) register at a postsecondary institution in the
state not earlier than the 2003 fall semester; and d) provide an affidavit to the institution declaring
that
they will file an application for lawful permanent residency as soon as they are eligible.
...TOP New Jersey
Update:
Recent reports state that due to a lack of policy guidance on this issue, many colleges and universities
register resident aliens as international students. In most cases, the tuition rate for these students
is almost double the in-state rate13.
In
June 2002, two state Assembly members offered a bill that would allow
undocumented alien students at public higher education institutions to
pay in-state tuition rates if the students: a) attend a high school in
the state for three or more years; b) graduate from a New Jersey high
school or received an equivalent of a high school diploma in the state;
c) register as an entering student or was enrolled in a public college
or university not earlier than the fall semester of 2002-03; and d)
file an affidavit with the institution pledging to file an application
to legalize their immigration status as soon as they are eligible.
Although the bill has been introduced, it is uncertain whether it will
be considered in the 2003 legislative session. ...TOP New York
The New York State Legislature passed a law in June 2002 that would allow certain undocumented aliens
to pay in-state tuition rates at the City University of New York (CUNY) and the State University of
New York (SUNY), reversing prior policies at both institutions. In order to be eligible, undocumented
alien students must: a) attend a New York high school for at least two years; b) graduate from a New
York high school or receive a GED certificate in New York; c) apply to attend a state institution within
five years of receiving a diploma/GED; and d) sign an affidavit pledging to apply for legal immigration
status14.
...TOP North Carolina
Update:
Lawmakers have filed two bills addressing undocumented aliens being
classified as residents. S. 982 requires undocumented aliens to be
charged higher tuition rates than residents of the state. S. 987 states
individuals who attend a high school in North Carolina for four
consecutive years and graduate or receive a general education diploma
will be charged in-state tuition. Both bills have been referred to the
Senate Education Committee. No action has been taken. State lawmakers are planning to study whether undocumented alien
students should be allowed to pay resident tuition. Fears following the September 11 terrorist attacks
and the tight state budget negatively influenced
prospects for the idea in 2002. North Carolina has one of the fastest growing immigrant populations
in the nation and some state leaders have argued that if they cannot offer their residents something
beyond a high school education, these individuals will be unable to contribute much to the state’s
economy15.
...TOP
Oklahoma
?Legislators are currently considering HB 1559, which would offer
resident tuition status to dependents of undocumented aliens who: a)
attend an Oklahoma high school for two consecutive years; and b)
graduate from that high school. Additionally, alien students must
comply with other residency/establishment of domicile criteria set by
the Oklahoma State Regents for Higher Education. HB 1559 has passed the House and is eligible for consideration in the Senate.
In addition, SB 596 contains the same eligibility requirements as HB 1559, but also ensures such students
are eligible for scholarships and financial aid. SB 596 was passed and signed into law by Governor
Brad Henry.
...TOP
Oregon
Update:
Senate Bill 10 has passed the Senate and passed the House Ways and Means Committee in mid-April. The House has not voted
on this bill.
Senate
Bill 10, introduced in the 2003 legislative session, would extend
in-state tuition status at public colleges and universities to
undocumented alien students who meet the following criteria: a)
residence in the state (with a parent or guardian) for at least three
consecutive years while enrolled in a secondary school; and b) receipt
of a high school diploma or equivalent in the state.
...TOP
Rhode Island
Update:
HB 5802 permits students, regardless of immigration status, to in-state tuition rates if they meet the
following criteria: a) they have attended a Rhode Island high school for two or more years; b) they have
graduated from such a high school or received an equivalent thereof (GED); c) they have registered at
a Rhode Island college or university and sign an affidavit promising to legalize their status as soon
as possible.
The House Ways and Means Committee considered the bill in mid-May, but took no action on the bill.
...TOP
Texas
In June 2001, Texas lawmakers voted to allow undocumented alien students who have lived in the state
for three or more years and have signed an agreement to seek status as a legal resident to qualify
for in-state college tuition rates at all public institutions in the state. At the time of passage,
an estimated 2,400 students benefited from the law. Proponents say that Texas’ law complies with
the federal law because it sets a higher bar for receiving in-state tuition for undocumented aliens
than for U.S. citizens who move to Texas and become eligible for the less-expensive rates after one
year in the state16.
...TOP Utah
The legislature approved House Bill 144 in 2002 with the caveat that pending federal legislation (e.g.
The DREAM Act) must pass first17. In November 2002, the state attorney general issued an opinion that
says Utah does not have to wait on federal legislation to remove the restrictions. Undocumented alien
students may be able to start paying in-state tuition as early as January 2003 if they have lived in
the state for at least three years and attended and graduated from a Utah high school. Similar to other
states’ measures, alien students would have to sign an affidavit to the college or university
of their choice stating that they are attempting to change their residency status18.
...TOP
Virginia
Update:
HB 2339 established that no undocumented resident of the United States would be eligible to receive in-state
tuition at a Virginia college or university. Governor Mark Warner vetoed this bill on April 30.
Governor Warner also issued a statement that he would pursue legislation during the General Assembly’s
next session to allow illegal immigrants to pay in-state tuition rates. The students would have to meet
the following criteria: reside in Virginia for five years, graduate from a state high school, pay Virginia
state income tax for at least three years and pursue legal status19.
In late 2002, Virginia’s attorney general issued an opinion that cautioned the state’s public
colleges and universities against enrolling undocumented immigrants and to report those on campus to
the INS.
In response, Northern Virginia Community College has chosen to continue enrolling unauthorized alien
students and has not reported these students to the INS20.
A measure to make undocumented alien students ineligible for resident tuition passed the General Assembly21 and
is
likely to become law even if Gov. Warner vetoes the measure.
...TOP Washington
Update:
Gov. Gary Locke signed the bill into law in late May after vetoing a portion of the bill which limited
in-state tuition to students whose families hold work visas, green cards or have federal amnesty. The
bill takes effect July 1, 2003.
In February 2003, the state House passed a bill (HB 1079) that would
expand the definition of "resident" for tuition purposes to undocumented
alien students who: a) graduated from high school in the state or
attended high school for at least three years in the state; b) files an
application for permanent residency and engages in activities necessary
to acquire citizenship (e.g. civics review coursework).
...TOP Wisconsin
Update:
In 2003, Governor Jim Doyle proposed aliens could qualify for resident
tuition at Wisconsin colleges and universities if the student graduates
from a Wisconsin high school or received the equivalent, was
continuously present in Wisconsin for at least one year following the
first day of attending a Wisconsin high school, enrolls in a Wisconsin
college or university, and provides the institution with an affidavit
stating he or she has filed or will file an application for permanent
residency as soon as they are eligible.
This proposal was part of the FY04-05 general appropriations bill (SB 44). In addition, this proposal
was filed as a single bill: AB 95. The Senate Finance Committee held several public hearings on SB
44, but has taken no action since. No action has been taken on AB 95.
The governor vetoed a bill in 2001 that
would have allowed some undocumented alien students to pay in-state tuition rates. A similar bill is
expected in the 2003 legislative session22.
...TOP Analysis
On their face, measures to extend resident tuition status to
undocumented alien students may seem inefficient and unfair. At a time
when state and federal budgets are awash in red ink and services for
citizens face deep cuts, it hardly seems appropriate to any sort of
recognition or benefit to individuals not in this country legally.
Opponents of resident tuition status for undocumented aliens argue that
such a benefit implicitly condones illegal immigration while state and
federal officials seek to stem the tide of unauthorized
border-crossing.
Such argument overlook the following considerations:
Undocumented alien students do not receive a “free ride” under any of
the proposed or enacted measures, particularly since they cannot
qualify for financial aid until they have attained legal residency in
the United States. As such, these students are paying for a greater
share of their educational costs than a vast majority of their
counterparts.
The proposed and enacted measures promote responsible behavior by
requiring undocumented alien students to seek lawful permanent
residency as a condition of receiving in-state tuition status. Most (if
not) all of the proposed or enacted state-level measures require alien
students to live in a particular state longer than out-of-state U.S.
citizens to qualify for in-state tuition status.
Undocumented alien students and their families contribute to the economy and to states’ revenue
base. Debates over in-state tuition status often imply that undocumented aliens are not taxpayers,
which is simply not the case. Undocumented aliens pay sales taxes in the 45 states that levy them,
and pay
property taxes through rental and lease payments for housing. Additionally, undocumented aliens represent
a significant (but underrepresented) component of the nation’s economic activity, particularly
in the increasingly growing service sector.
A large portion of undocumented alien students are likely to remain in
the United States, whether or not they have access to postsecondary
education. Accordingly, it would seem to be in states’ economic and
fiscal interests to promote at least a basic level of education beyond
high school to alien students, to increase their contribution to
economic growth while reducing the prospect of dependence on
public/community assistance.
...TOP
AASCU’s Call to Policymakers
In light of the points raised above, AASCU issued the following statement in its 2003
Public Policy Agenda:
“
Even before the tragedy of September 11, 2001, state and federal leaders were engaged in debates regarding
the nation’s immigration policies. While heightened security concerns have dramatically recast
that debate, many of the central questions remain unchanged, including that of how to treat dependents
of undocumented aliens. AASCU does not condone disregard for the nation’s immigration laws, but
believes that current laws discouraging or denying resident status to qualified alien students—who
are here through no decision of their own—rebuke our heritage as a nation of immigrants and ignore
a vital source of human capital for the New Economy.
AASCU will support legislation in the 108th Congress to modify the 1996
federal law that discourages states from conferring resident status on
dependents of undocumented aliens for the purpose of college/university
attendance. AASCU encourages states to follow the lead of those states
that have adopted laws defining and conferring resident status on
qualified alien students.”
Issues such as those surrounding undocumented alien students are not quickly or easily resolved, as the
preceding analysis indicates. In the face of unprecedented demand for human capital, state and
federal policymakers must commit to resolving them. The nation cannot afford—socially or economically—to
do otherwise.
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