October has not been a good month for educators working to get more government assistance for college students – or potential college students -- who lack the legal documentation to stay in the United States.
First, Gov. Arnold Schwarzenegger, a Republican, vetoed legislation  in California that would have allowed such students in his state to receive more financial aid and tuition waivers. Then, a measure in Congress to create a path to permanent residency status for these students was blocked in the U.S. Senate – effectively killing this year the DREAM Act (DREAM stands for Development, Relief and Education for Alien Minors, and is the name given to both state and federal bills on the topic).
As educators gathered Friday at the annual meeting of the College Board, in New York City, a hot topic of conversation was how to help these students in the wake of such defeats. People spoke about legal and political strategies -- as well as the challenges facing colleges and their financial aid officers. At several sessions where the issue came up, there was a unanimous public consensus that these students need and deserve help. But without changes in various laws, which generally deny financial aid to the students, some worried about the ability of colleges to meet the needs.
Michael A. Olivas, director of the Institute of Higher Education Law and Governance, who has served as an expert witness and lawyer in such cases (on behalf of the students) characterized the political opposition to help for the students as "a jihad" motivated by "anti-Mexican animus."
He said it was important to restate the legal basis for helping these students. It is essential, Olivas and others said, for educators to emphasize right now that just because Congress and some states have decided not to extend certain kinds of assistance to students lacking the legal right to be in the United States doesn’t mean that states and colleges can’t do so.
Olivas noted that states have been fighting over who can have the benefits of residency status (in admissions, tuition rates and so forth) since at least 1894, so there are numerous court decisions on the issues. A key distinction that is sometimes lost, he said, is that the right to assert residency (and the associated privileges it provides, such as in-state tuition) need not be linked to citizenship. Olivas noted that a key footnote in the 1982 Supreme Court case that said states couldn’t bar the children of immigrants without legal documents from the public schools specifically addresses this issue. Residency requirements are typically linked to how much time someone has been in a state (typically a year to qualify for in-state tuition rates). The footnote in question says that school districts are "as free to apply to undocumented children established criteria for determining residence as they are to apply those criteria to any other child who seeks admission."
The 1982 case – Plyler v. Doe  – is about public schools, but its logic could apply to higher education as well, Olivas and others said. In the case, the Supreme Court specifically differentiated between the government’s right to punish those who enter the country illegally as adults and those who enter as children who are brought to the United States by others, who are making decisions for them.
The court cited "persuasive arguments" for states to deny rights to people "whose very presence within the United States is the product of their own unlawful conduct," but said that these arguments "do not apply with the same force" to the children of such people. Further, the court cited the role of education in providing "the basic tools by which individuals might lead economically productive lives to the benefit of us all."
Of course giving states the right to provide benefits to undocumented students doesn’t mean that they will do so. And in cases where they do so, they may give some rights but not others – California, for example gives in-state tuition rates, but not financial aid. Because federal aid is barred to these students – many of whom are poor enough that they would otherwise rely on Pell Grants and other federal aid – there is more pressure on colleges to find resources to make up for that gap.
Allison Jones, assistant vice chancellor of the California State University System, said it was important for college educators who are committed to helping these students to remember that not everyone agrees with them. “Don’t assume everyone on your campus supports this,” he said.
For practical purposes, that means trying to help students without creating ways that they might be tracked by those seeking to take action against illegal immigration. California State financial aid officers are aware of students’ immigration status when students check "none of the above" when asked various other possible choices (citizen or permanent resident in California, citizen elsewhere in the United States, etc.). Likewise, such students typically leave blank the section for Social Security number. Using these tools, Jones said that aid officers can help students get enough aid. But students are never tagged as lacking legal immigration status, nor is a group list compiled, or statistics on exactly how many there are at any given campus.
Jones said he realized that the lack of data frustrated some, including those trying to help the students. But Jones said it was important not to do anything that might be used against students. "I don’t want anybody to ever be able to come in and ask for a list."
Olivas also said it was important to think long term in the advice given to students. He said, for example, that it was important never to advise students to just check a box indicating that they are U.S. permanent residents or citizens when they are not. Students who do so on the advice of well intentioned people may find themselves facing charges of lying on official forms or unable to qualify for admission to state legal bars – the application forms for which require students to say that they have never lied on official forms. His advice is always to leave blank a problematic question or to pick "none of the above" but never to be untruthful.
More creativity is going to be required of campus officials, Shirley Ort, associate provost and director of scholarships and student aid at the University of North Carolina at Chapel Hill. North Carolina does not provide state benefits to these students, although her university has been strongly committed to helping them.
That is going to get more difficult each year, she said, as the potential population grows. North Carolina is among the states experiencing large growth rates in its Latino population (with is a mix of those with and without legal status to reside in the United States). Between 2007 and 2017, the percentage of high school graduates who are Latino in the 10 counties that send the most students to UNC is projected to increase from 6 percent to 27 percent. (The Asian percentage is projected to go up slightly while the white and black percentages will decline.)
Ort said that she is worried that institutions like hers will not have the funds to provide aid to large populations of students who would otherwise receive Pell Grants and various forms of state aid. "We’re going to do what we can, wherever we can," she said, but in terms of money to use, "we’re not Harvard."
As for elite private colleges, they can be part of the solution, said Evelyn Hu-DeHart, director of the Center for the Study of Race and Ethnicity in America, at Brown University. She said that she asked Brown officials if they were providing aid to such students and they are, to a few, and she found similar reports from other elite private colleges.
"They have leeway that a lot of publics do not have," Hu-DeHart said. While private colleges should be encouraged to continue such efforts, she said that only a minority of undocumented students will enroll, so it was important to continue to focus on shifts in state and federal laws. "Even as we work to solve the big problem, we can work one by one by one to help," she said.