Reduced Tuition for Undocumented Students Debated

Some state lawmakers cite concerns about financial repercussions.

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As immigrants have moved into new territory in growing numbers, state lawmakers are becoming increasingly embroiled in debates over what public services to provide the newcomers among them living in the United States illegally.

In several states this year, legislators are pushing laws that would give undocumented students in-state tuition rates at public colleges and universities. Those states would join nine others already allowing the practice. At the same time, lawmakers in Kansas and Oklahoma have introduced bills to reverse laws that offer the in-state rates.

Meanwhile, members of the U.S. Senate Judiciary Committee were expected to return to the drawing board this week to craft a measure to change federal immigration policy. They planned to take up the politically charged issue of how to address the presence of nearly 12 million undocumented immigrants.

The U.S. House of Representatives in December approved a bill that focuses on stepped-up enforcement of immigration laws. Thousands of immigrant advocates, who gathered in Chicago and Washington this month to protest the bill, criticized provisions they perceive as harsh, such as making the status of being in the United States illegally a federal felony. Currently, it’s a civil violation, not a crime. Any Senate immigration bill would have to be reconciled with the House version.

Some state lawmakers blame the federal government for putting them in a predicament in which they must pay for some public services for illegal immigrants. They argue that it’s the federal government’s job to keep unauthorized people from crossing the borders and to deport them or provide them with a path to legalization.

“The federal government is failing to do anything to protect our nation’s border or the taxpayers,” charged state Rep. Randy Terrill, an Oklahoma Republican. “The federal government is functionally imposing a tax on the state. We’re sick and tired of it.”

Mr. Terrill sponsored a bill that requires people to prove they are U.S. citizens or legal residents before receiving public services in his state. He now acknowledges that if the measure gains support in the state Senate, it will have to be changed to comply with the 1982 U.S. Supreme Court decision, in Plyler v. Doe, that ensures undocumented children a free precollegiate education.The bill, which was approved 63-24 in the Republican-controlled House, also would repeal a 2003 law that provides in-state tuition rates for undocumented students in Oklahoma.

Changing Dynamics

It wasn’t long ago, said Michael Fix, the vice president and director of studies at the Migration Policy Institute in Washington, that debates over what public services to offer illegal immigrants occurred in only those states—California, Florida, Illinois, New Jersey, New York, and Texas—that for decades received the lion’s share of immigrants.

But the fanning-out of immigrants across the country since the 1990s—including undocumented ones—has changed the dynamics, Mr. Fix said. “It’s no wonder,” he said, “that this conversation, which was restricted to a few traditional gateway states, is now nationwide.”

The Pew Hispanic Center in Washington estimates that the United States has 11.5 million to 12 million unauthorized inhabitants, up from 8.4 million in 2000.

Mr. Fix noted that offering undocumented youths in-state tuition rates has more support than providing other kinds of public services, such as health care or welfare, because education is viewed as an investment in human capital.

Florida state Sen. Frederica S. “Freddi” Wilson believes increasing media attention to issues concerning illegal immigration is making it harder to pass laws helping undocumented youths.

For the third year in a row, the Democrat is trying to get the Florida legislature to approve such a measure.

On March 14, the state Senate’s education committee approved Ms. Wilson’s bill 5-2. The senator said her bill faced more opposition from other senators this year than before. She blames the resistance on “the Minutemen and media hype regarding immigration and driver’s licenses and green cards.”

The Minuteman Project is a national organization favoring stricter measures to control the nation’s borders.

“We should help them go [to college],” said Sen. Wilson, “especially when they are in this country through no fault of their own.”

Even though the Supreme Court ruling assures children a free K-12 education regardless of their immigration status, no federal law guarantees the same opportunity for higher education to undocumented immigrants.

What’s Fair?

Democrats are not the only state policymakers who sympathize with undocumented students.

State Rep. Deena L. Horst, the Republican chairwoman of the K-12 education committee in the Kansas House, said she voted earlier this month to stand by the 2004 law which provides in-state tuition rates for undocumented students who graduate from Kansas high schools.

College Aid

A number of states have laws allowing undocumented immigrants to receive in-state tuition rates, while others bar such students from getting discounts.

Students Can Receive In-State Rates:

New Mexico
New York

Students Cannot Receive In-State Rates:

North Carolina

The Republican-controlled House voted 63-58 this month to keep the law in place.

“Some of these students have been the valedictorian or salutatorian of their school,” said Ms. Horst. “It doesn’t seem correct to say, ‘I’m sorry you can’t be doctors, nurses, and teachers,’ when we are struggling to find people to fill those roles.”

But state Rep. Becky J. Hutchins, the Kansas Republican who sponsored the bill to repeal the in-state-tuition law, said her state is vulnerable in providing such a public service to undocumented students.

She points to a federal lawsuit out-of-state students attending Kansas public universities filed in 2004 that challenges the law. The Federation for American Immigration Reform, or FAIR, in Washington, is representing the plaintiffs and is backing a similar suit against a California law that offers the same benefit.

FAIR argues that offering in-state tuition rates for undocumented students violates a federal immigration law passed in 1996 that prohibits states from giving undocumented students a postsecondary benefit that U.S. citizens don’t receive.

The federal district court in Topeka dismissed the Kansas lawsuit. FAIR is appealing that decision; the California lawsuit, filed in a state court last December, is pending.

Josh Bernstein, the director of federal policy for the National Immigration Law Center, based in Los Angeles, said the Kansas law, as well as those in eight other states that provide in-state tuition rates, comply with federal law because they base the benefit on whether students graduated from high schools in their states, not on residency requirements.

Some members of Congress have tried unsuccessfully to pass the Development, Relief, and Education for Alien Minors Act, or DREAM, which would repeal the language in the 1996 immigration law regarding postsecondary education benefits. It would also give undocumented students who have graduated from U.S. schools and meet certain other criteria a path to legalization.

U.S. Sen. Richard J. Durbin, D-Ill., introduced the DREAM Act during the current legislative session.

As long as federal immigration law remains unchanged, Rep. Hutchins said, she believes the plaintiffs in the Kansas lawsuit backed by FAIR could prevail, costing her state financially.

“It’s not that we are racist or unchristian or evil people. Someone told me, ‘Get off of the immigrant-bashing bandwagon,’ ” she said. “My people are saying, ‘What part of illegal don’t you understand?’ ”

PHOTO: Immigrant-rights advocates march to the Statehouse in Topeka, Kan., this month to promote civil rights and rally for benefits, including in-state tuition rates.
—Anthony S. Bush/The Topeka Capital-Journal/AP

Vol. 25, Issue 29, Page 10

Published in Print: March 29, 2006, as Reduced Tuition for Undocumented Students Debated
Web Resources
  • The Legal Information Institute at Cornell University Law School provides further information on the case Plyler v. Doe, the 1982 U.S. Supreme Court case which guaranteed a free precollegiate education for all undocumented children. See also the Institute's resource on immigration law.
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This story originally contained a misspelling when citing the 1982 U.S. Supreme Court decision in Plyler v. Doe.

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