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DREAM Act Dies in Senate

December 20, 2010

WASHINGTON -- The U.S. Senate on Saturday failed to get the necessary supermajority of 60 to force a final vote on legislation that would have provided a path to citizenship for some college students and veterans who do not have legal documentation to reside in the United States.

The vote was a major defeat for advocates for these students, who were backed by many college leaders. But in a state court ruling that would help these students, a Nebraska judge on Friday rejected a suit seeking to prevent that state from letting these students pay in-state tuition rates.

The Senate Vote

In the Senate, supporters were able to get only 55 votes for cloture, and the defeat effectively killed hope of passing the Development, Relief and Education for Alien Minors (or DREAM) Act not only this year but likely in the next two years. While a few Democrats and Republicans crossed party lines on the vote, most Democrats backed the bill and most Republicans opposed it. The Congress taking office in January, in which the Republicans will control the House and the Democrats will have a slimmer majority in the Senate than they have now, is unlikely to pass DREAM given that the current Congress could not do so.

While support for DREAM was once bipartisan, the Republican leadership lined up against the bill this year. And prominent Senate Republicans like Orrin Hatch of Utah, Kay Bailey Hutchison of Texas and John McCain of Arizona -- all of whom once backed the legislation -- voted to block its consideration.

Republicans made a range of arguments against the bill, with many citing the cost of new citizens to the U.S. government, or raising questions of fairness about letting students who didn't enter the country legally gain citizenship. Proponents of DREAM have argued that the legislation would help the economy, in that those students who are gaining an education could get better jobs and pay more in taxes if they had a route to citizenship. Supporters have also noted that the students who would benefit were all brought to the United States as children -- and that they never made a decision to violate U.S. immigration law, and frequently have no connections to the countries where they were born.

DREAM had backing from many scholars and from so many college presidents that The Boston Globe struck out when it tried to identify one who opposed the legislation.

Michael A. Olivas, a law professor at the University of Houston and an expert on higher education and immigration law, said that the Senate vote was "disappointing" -- especially since the legislation is if anything more limited than versions of the bill that drew Republican support in the past. While Olivas predicted that, eventually, Congress will consider reforms of immigration laws -- including a version of DREAM -- he said that there is no doubt that for undocumented students today, "their achievement will suffer."

Olivas urged colleges to "continue to enroll the students," who some day "will take their rightful place in society." As for Saturday's vote, he said that senators who blocked a final vote on DREAM "have to examine their consciences."

The Trend in State Courts

One irony of the debate over DREAM, Olivas said, is that state-level efforts to help undocumented students are surviving court challenges. Last month, the California Supreme Court unanimously upheld a state statute providing some undocumented students in-state tuition status. Undocumented students are not eligible for federal student aid or loans, as well as many state aid programs. And since most of these students are not from wealthy families, a requirement that they pay out-of-state tuition rates effectively would exclude them from most public institutions.

On Friday, a state judge in Nebraska rejected a lawsuit from taxpayers who challenged a statute there allowing undocumented students to pay in-state tuition rates.

Friday's decision by Judge Paul W. Korslund did not focus on the educational or policy debates involved. Instead, it addressed whether the plaintiffs had legal standing to bring the suit. He noted that Nebraska does allow lawsuits over the use of public funds for illegal purposes -- and the suit charges that the additional subsidy provided to these students is such an illegal purpose.

But Judge Korslund noted that Nebraska also requires anyone who believes funds are being used illegally to first seek a determination by the proper legal authority. For a federal immigration matter, this would mean the U.S. Department of Homeland Security, and Korslund noted that the plaintiffs never sought help from that agency. (Nor has the agency ever tried to stop states like Nebraska from having policies like the one it has.)

The plaintiffs in this case "essentially seek to impose upon Nebraska's colleges and universities their opinions on how the government should treat unlawful aliens," the judge wrote. The plaintiffs have every right to lobby lawmakers to change the Nebraska law, he added, but not to impose their judgment on the public colleges.

Kris Kobach, a law professor at the University of Missouri at Kansas City who is the lawyer for the Nebraska plaintiffs and has been involved in such litigation elsewhere, told the Associated Press that the judge's decision was just "a bump in the road." Kobach said he wasn't sure whether he would appeal the decision or seek intervention from the Department of Homeland Security.

 

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