The heated rhetoric surrounding immigration reform legislation in Congress threatens to drown out an important, bipartisan effort to resolve a decades-old inconsistency in federal immigration law concerning postsecondary tuition costs for undocumented students who have graduated from high schools in the United States.
The “DREAM Act,” which was incorporated into the Senate Judiciary Committee’s immigration reform bill last week, would allow states to provide in-state tuition for postsecondary education to undocumented students who have attended (for at least three years) and graduated from high school in their states.
Federal immigration law now prohibits them from doing so, though that has not stopped several states, including “red” states like Utah, Kansas, and Texas, from adopting such legislation in recognition of the fact that there are more than 50,000 of these students each year that graduate from high school as -- in nearly every way -- children of the American dream.
Of the DREAM Act, Sen. Jeff Sessions (R-Ala.) stated, “I find it inconceivable that we would provide greater benefits to persons who are here illegally than to American citizens. It makes a mockery of the rule of law."
However, Congress must ensure the debate over the education of undocumented students is actually grounded in the law, rather than rhetoric. Federal law related to this issue was interpreted more than 20 years ago by the United States Supreme Court’s 1982 Plyler v. Doe decision.
Plyler v. Doe  involved a Texas law that effectively banned undocumented minor children from participating in public elementary and secondary education. The Court heard arguments that sounded quite similar to those used to deny in-state college tuition for the same students: that providing K-12 education rewards illegal immigration, that we should not give public benefits to those in the country illegally. The significance of this case is not that it settled once and for all the ideological arguments surrounding immigration. Rather, the Court created protective legal precedent for minor undocumented students by carefully examining the intersection of immigration law, the distribution of public goods, and individual rights as protected by the Constitution of the United States.
The Supreme Court’s decision addressed the question: Did a child break the law because the parents brought the child into the country illegally as a minor? The Supreme Court said “no.”
The Court ruled that such children, in fact, were entitled to equal protection under the law, one of America’s most cherished legal principles. As cited in the Court’s opinion, the Fourteenth Amendment to the Constitution provides that “[n]o State shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
As a population within the state’s jurisdiction, undocumented students were, therefore, entitled to equal treatment under the law. In the opinion of the Court, Associate Justice William J. Brennan Jr., wrote, “To permit a state … to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment.”
The Court further argued that federal immigration law, despite “sheer incapability or lax enforcement,” was not a justification for denying children equal protection and access to education.
In recognition of this principle, several state legislatures have passed laws to allow in-state postsecondary tuition for undocumented students who have attended public high schools in state for more than three years. They realize the legal “no-man’s land” these students occupy, and have sought to remedy it under the law.
The central relevance of the Supreme Court’s case to this debate over in-state tuition for undocumented students is that we cannot simply ignore what Justice Brennan called the “shadow population” of students who go about their daily lives and contribute to our society in the same way that we all strive to contribute. Moreover, we cannot deprive these students of the equal protection that our Constitution provides simply because they graduate from the high school setting where the Supreme Court has decided that it applies.
Though the issue is easy to weigh down with heated rhetoric, we hope that the law will, in fact, prevail, and that Congress will pass the DREAM Act. As Justice Brennan concluded, “[W]hatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.”