Last week, the North Carolina attorney general’s office released an advisory letter suggesting that, in light of federal law, the state’s community colleges should return to a former systemwide policy barring students who are undocumented immigrants from college-level courses. The letter said that the earlier ban "would more likely withstand judicial scrutiny" in the absence of either state legislation clarifying the ability of illegal immigrants to enroll or of guidance from the U.S. Department of Homeland Security.
Such guidance arguably came Friday, albeit indirectly. In a statement prepared in response to a Raleigh News & Observer reporter’s question, the U.S. Immigration and Customs Enforcement said, "It is left for the school to decide whether or not to enroll" illegal immigrants.
"The Department of Homeland Security does not require any school to determine a student's status."
UPDATE: Regardless, citing the advice of the state attorney general's office, the North Carolina Community College System announced Tuesday that it would immediately cease admitting illegal immigrants to degree programs, reversing its current policy, issued in November, requiring that all 58 colleges admit undocumented students. The system said it has asked the state attorney general to seek clarification from the federal government.
Outside North Carolina, the focus of the undocumented student debate nationally has been the question of extending in-state tuition rates to illegal immigrants -- what Michael A. Olivas, a law professor at the University of Houston and expert in immigration and higher education law, calls "a second-order question.... Even the federal statute that says a state may or may not either grant or withhold resident tuition assumes, logically, that the students may enroll."
Yet, on occasion, state policymakers have argued otherwise on this first-order issue of admissions.
“We’ve seen this actually come up in other states as well,” said David Hawkins, director of public policy and research at the National Association for College Admission Counseling. “Obviously, states have the ability to set their own admission policy.... Where we think there’s a flaw in the logic is that the state attorneys general are basing their opinions and directives on an interpretation of federal law that just doesn’t exist. There is no federal restriction to admitting an undocumented student to a postsecondary institution. The real restriction is about the awarding of aid.”
Critics of the North Carolina attorney general’s office letter -- an office spokeswoman said there would be no further comment beyond the letter -- pointed to what they call an overly broad interpretation of the “benefits” that illegal immigrants are restricted from receiving under federal law. The word "benefits" is understood in the North Carolina letter to include public college admissions, whereas others argue it includes only monetary benefits (like welfare payments).
But, beyond that, they also pointed in surprise to a ceding of discretion over college admissions decisions to the federal government.
“At some point, if there’s any kind of decision-making principle here that ought to be a tie-breaker, one potential tie-breaker is that states traditionally have control over education,” said Hiroshi Motomura, a law professor at the University of North Carolina at Chapel Hill who specializes in immigration and citizenship law.
States have attempted to assert control relative to the question of undocumented student admissions periodically, including in 1994 when California passed Proposition 187. That limited illegal immigrants' access to state services, including college education, but was struck down on the basis that it preempted existing federal law on immigration, said Stephen Yale-Loehr, who teaches immigration law at Cornell University.
In Missouri, House Bill 1463, which would bar illegal immigrants from attending public universities in the state, passed the House of Representatives in March with 112 in favor and 39 against, and was sent to the State Senate. “We’re accountable to the people of this state to spend their tax dollars primarily to educate Missouri students and those lawfully present. We need to focus on Missouri families trying to educate their children,” State Rep. Jerry Nolte, a Republican, said then in a statement. "While we are obligated to educate children K-12 regardless of legal status, there is no requirement to provide postsecondary education.”
A House bill in Iowa requiring state college students to submit proof of their legal status -- and docking state assistance for colleges that enroll students without proper documentation -- was introduced in early March and referred to committee. In Virginia in 2002, the office of the then-attorney general Jerry W. Kilgore issued a memo urging that public colleges exclude undocumented students, while still acknowledging institutional discretion: "There is no federal or state statute that precludes an institution from admitting an applicant known to be an illegal alien," the memo said. "Moreover, unlike the area of employment law, there is no statute that requires proof of United States citizenship or proof of immigration status in order to apply to a college or university. Thus, as strictly a legal matter, institutions have broad discretion to decide what documentation they will request of applicants, and how they will treat applicants who are not lawfully present in the United States. As a matter of policy, however, the Attorney General is strongly of the view that illegal and undocumented aliens should not be admitted into our public colleges and universities at all, especially when doing so would displace a competing applicant who is an American citizen or otherwise lawfully present here."
“Unlike Plyler v. Doe," a 1982 Supreme Court decision affirming the right of illegal immigrants to attend public K-12 schools, "there’s nothing that explicitly says that all people have a right to go to college. Postsecondary education is left up to the states, in determining if they’re going to have public institutions at all and who they’re going to admit," said Cornell's Yale-Loehr.
But, from a policy perspective, "I think it’s short-sighted to deny postsecondary education to undocumented students because we need these people," Yale-Loehr said. "It’s cutting off your nose to spite your face to not allow them to go to college."