An In-State Tuition Debate

State by state, leaders consider the thorny question of whether students living there illegally should pay in-state fees.
February 28, 2007

Ileana came to the United States from Mexico City just two years ago, speaking so little English that when the bell in her high school rang she would look down at her desk to see only her name at the top of an otherwise blank piece of notebook paper, yet another class having passed without her understanding a word that was said.

So, “I had to learn,” the Arizona 17-year-old says, with just the slightest of slight accents, her words almost delicately deliberate but clear and certain. She read the dictionary. She pulled her grade point average up to a 3.7. She earned stellar scores on Arizona’s statewide standardized test, her ticket, she says, to a state scholarship to Arizona State University. “I did a lot of things because I wanted to get that scholarship,” Ileana says.

Ileana’s story is of a dream deterred but not, she insists , lost in the wake of a November ballot initiative, Proposition 300, rendering undocumented Arizona students ineligible for in-state tuition rates or state scholarships – students like Ileana, who won't be getting that scholarship after all.

Yet, for every student like Ileana, there’s another you can’t pinpoint, whose story you can’t tell, who is being asked to subsidize a seat he didn’t get because a student here illegally did, says Ira Mehlman, a spokesman for the Federation for American Immigration Reform. “Even though you logically know that if somebody who is in Texas who is an illegal alien gets in, someone else doesn’t get in, you can’t identify that individual,” says Mehlman. “You can’t put a human face on it, even though it’s an actual human being. Somewhere in the state of Texas, there’s another kid who’s paying the price.”

Sympathize with whom you will. The fact of the matter is that the country’s sympathies are deeply divided and, in absence of federal guidance, this battle in the immigration wars – this seemingly simple question of extending or denying in-state tuition status to students living in a state illegally -- is being fought front by front, state by state, bill by bill. Since 2001, 10 states -- some bright, bright blue (California, Illinois, New York and Washington), but mostly ones that are ruby red (Kansas, Nebraska, New Mexico, Oklahoma, Texas and Utah) -- have approved legislation explicitly extending in-state tuition status to undocumented students. Aside from Arizona, Mississippi and Virginia have explicitly restricted access to the lower tuition rates, says Michael A. Olivas, a law professor at the University of Houston and director of the Institute of Higher Education Law & Governance

Other states have no clear statewide policies and, as has become a tradition, state lawmakers -- in Arizona, Connecticut, Texas, Utah and Virginia, to name a few -- have introduced a volley of bills in their respective legislatures so far this year to solidify a state policy or undo one already on the books. And then there are the cases creeping through the appellate courts in California and Kansas, challenging the extension of in-state tuition benefits on the basis of federal immigration law and the Constitution’s equal protection clause.

The issue keeps popping up because “giving this subsidized tuition to illegal aliens is just intensely unpopular,” says Kris W. Kobach, a law professor at the University of Missouri at Kansas City. He cites the 71 percent approval rate of Proposition 300 in Arizona as just one example.

“The reasons are not hard to fathom. When parents and students are paying five figures every year just for tuition to send their kids to school, even to state universities, people tend to get pretty heated up when they learn that someone who’s in the United States in violation of federal law is getting as good or a better deal as their own children,” says Kobach, who is lead counsel in a lawsuit challenging in-state tuition benefits for undocumented students in Kansas and a consulting lawyer for a similar case in California.

Or, to look at it through another lens: “The real fear [of those fighting in-state tuition for students here illegally] is that we’ll have kids who actually jump through all these hoops who, as FAIR would say, are rewarded for their illegality. Whereas in our society, we don’t punish kids for what their parents have committed,” says Olivas, who wrote the Texas law granting in-state tuition status to undocumented students, was an expert witness in the Kansas case and is on the board of the Mexican American Legal Defense and Educational Fund, which he says is challenging the new Arizona law.

“It’s one of those things that heats up every once in awhile," Olivas says, adding drily, "The forces of evil are afoot so I have to spread my joy all over the land.”


A Labyrinth of a Landscape

Unlike at the K-12 level -- where the 1982 Supreme Court case Plyler v. Doe affirmed the right of children here illegally to attend public schools -- questions on higher education access for undocumented students have never been fully resolved by the federal government. Students without the legal right to be in the United States are ineligible for federal aid funding, but that's about where any consensus on relevant federal law ends.

The federal Development, Relief and Education for Alien Minors (DREAM) Act -- which would certify the ability of states to offer in-state tuition to immigrants residing there illegally and provide a pathway for those who pursue two- or four-year degrees to obtain permanent residency -- has stalled in Congress for several sessions now.  It could affect an estimated 65,000 high school graduates per year, estimates the National Council of La Raza, the nation’s largest Latino advocacy organization.

With no federal action on the matter, states have been left to formulate their own answers to the tuition question, leaving advocates on both sides to quibble about the implications of the 1996 federal Illegal Immigration Reform and Immigrant Responsibility Act, which restricts states from offering benefits to illegal immigrants that any U.S. citizen (read: an out-of-stater, in this context) would not also be eligible to obtain. The 2005 suit against California’s law extending in-state tuition status to illegal immigrants argues, in part, that state lawmakers have engaged in a “knowing and deliberate violation” of federal law by “granting illegal aliens a tuition exemption denied to nonresident U.S. citizens/students.”

The counterargument, however, is that in-state residency requirements tend to be particularly stringent for illegal immigrants – often with in-state high school attendance requirements and three years' residency to a citizen’s one year. “As long as it doesn’t make it easier for an undocumented student to get [in-state status] than an out-of-state resident” to obtain that same benefit, states are acting within the purview of the law, says Olivas. To date, the courts have upheld the ability of states to extend in-state tuition status to undocumented students. The California complaint was rejected by a judge this fall, and Kobach says it's now headed for appeal; the Kansas case is also being appealed after a judge dismissed it in 2005 based on the plaintiffs' lack of standing, without ruling on its merits.

“We feel like the federal government has not stepped up and accepted its responsibility for a federal issue, and therefore states all across the country are initiating their own legislation," says John S. (Jack) Reid, a Republican lawmaker in Virginia’s House of Delegates. "That is unfortunate because what you end up with are laws in one state that don’t conform to laws in other states, I don’t think that’s a good idea, but that’s the best we can do right now, is to take it into our own hands.”

Reid put forward a clarifying bill this session to confirm the state's current restrictions on in-state tuition benefits, in compliance with a Virginia attorney general’s finding that to extend in-state tuition eligibility to illegal immigrants without doing so for all U.S. citizens would violate federal law (as is par for the course, the Utah attorney general issued a ruling to the opposite effect last year).

And so state lawmakers forge ahead with what they deem right, with what they deem allowable under what federal law there is. Among the state developments so far in 2007, bills in Utah and Texas both seek to undo in-state tuition benefits (The Utah bill was rejected by the House, and Texas' governor has affirmed his support of the existing benefits). An unsuccessful legislative bid in Arizona would have put the tuition element of Proposition 300 back on the ballot, so -- its sponsor, Democratic state Rep. David Lujan says -- voters could distinguish the tuition issue from other benefits, including childcare and adult education (including English instruction) also restricted to illegal immigrants under the November initiative.

Bills pending in Connecticut and Maryland would extend in-state tuition status to undocumented students, and a local Massachusetts newspaper, The Wakefield Observer, recently reported that advocates are preparing another push for a previously defeated bill that would offer in-state tuition benefits to illegal immigrants there and that the Massachusetts higher education board is studying the issue.

Meanwhile, in Georgia, where college presidents are granted flexibility to offer waivers for in-state tuition for up to 2 percent of their freshman enrollment, the state's Board of Regents has recently advised institutional leaders not to grant such waivers to undocumented students. "Our legal office is advising our presidents that there is a significant group of organizations and states that are viewing in-state tuition as a benefit prohibited under federal law," says John Millsaps, spokesman for the Board of Regents. While there are no clear answers, he says, the question prompting the board's action centers on a technical understanding of what counts under the definition of "benefits" restricted under the 1996 federal immigration law.

The longer the federal government waits to develop a coherent and conclusive policy, says Edward M. Elmendorf, senior vice president for government relations and policy analysis at the American Association of State Colleges and Universities, the more entrenched the various state policies will become. “There’s a lot of rhetoric and emotion and the only action that I’m seeing is on the state level," Elmendorf says. “It puts the states and the federal government on the firing line.”


In the midst of these state-by-state policy debates, students can all too easily dissolve into statistics and their experiences into testimony. It becomes easy to overlook the consequences, both on an individual level and even an institutional one -- as in Arizona, for instance, where the Board of Regents continues to consider the best way to collect information on students' legal status without diverting excessive resources to the cause.

"We're trying to make it into not that big of a deal," says Arizona State University's president, Michael M. Crow. The university is encouraging undocumented students to continue to apply, and emphasizing in public statements the availability of private, unrestricted aid funds and a commitment to obey the law while considering each student's financial situation individually. "We're interested in students getting educated," Crow says. "We don't think the numbers [of affected students] are large. It might, however, have a damaging effect in the community."

Many worry about just this last point. This is, after all, a battle being fought largely in words, in written law and spoken testimony, with the corresponding risk that the assumptions underlying each side's argument could become internalized as messages of discouragement on the one hand, or entitlement on the other.

The arguments of both sides are so clearly defined, repeated so often from state to state, that they’re nearly clichéd: Those on the side of offering in-state tuition benefits to illegal immigrants say that these are students who shouldn’t be punished for their parents’ misdeeds; that it’s a matter of equality; that for many young immigrants brought here by their parents this is the only home they have ever known; that in-state tuition is hardly an incentive that would deter immigration if removed; and that it’s in our interest as a society to ensure undocumented students have the means to contribute to a country they can improve and, in any case, are unlikely to leave.

On the other side, the arguments are similarly simple: Illegality should not be rewarded through taxpayer subsidies; all incentives for illegal immigration should be lifted; limited resources should be devoted to help U.S. citizens and permanent residents; upon reaching 18, individuals are responsible for their own fates and the fall-out of their parents' transgressions; and, as Kobach argues, that extending in-state tuition benefits to illegal immigrants disadvantages those students who do shimmy through the proper channels and obtain proper documentation.

But ultimately, for all the struggle in the states, this question is just one piece in a much larger debate. Without options in place for college students to obtain legal status -- options that would be afforded by the DREAM Act -- undocumented college students still face a major uphill battle to secure employment upon graduation. That’s what makes these students even more extraordinary, says Rosemary Ybarra-Hernandez, the founder of the AGUILA Youth Leadership Institute for Hispanic high school students in Phoenix. “Proposition 300 is designed to truly impact those students who are the best and the brightest,” she says. “It’s not that they lose sight of the fact that they might not get a job, but they are so driven to succeed, it overtakes the fear that they won’t be able to become a doctor.”

But taxpayer subsidies for those students come at the expense of the middle class, says Mehlman of FAIR, which would prefer that no student here illegally be admitted to a U.S. college without obtaining a visa, as a foreign student would.

While Mehlman points to the anonymous citizens who are seeing their dreams dashed by benefits afforded to illegal immigrants, Ileana, for her part, is applying for private scholarships. She's still planning to attend Arizona State and fulfill her dream of becoming a high school English as a second language teacher. If all else fails, she says she'll work while attending community college at several times the cost in-staters would pay. And the debate about the size of her tuition bill will no doubt swirl around her, each state its own battlefield.


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