Several years ago, I agreed to serve as faculty adviser to a newly formed student organization, the Multilingual Legal Advocates. The group’s mission is to explore and promote the use of foreign languages in the practice of law. Its members, most from immigrant homes, offer their bilingual skills to the St. John’s University Law School’s Elder Law and Child Advocacy clinics and other nonprofit groups. Each spring, I meet with the recently elected and always enthusiastic members of the multilingual group’s board to discuss their plans. This year, that discussion came on the heels of an immigrant march on Washington along with organized pleas to place undocumented college students on a path to citizenship. Juxtaposing my student meeting against the touching news stories of young lives “on hold” gave me pause. I could not help but note the difference immigrant status makes for young people pursuing the American dream.
Just to clarify, the law school where I teach is located in Queens, New York, one of the most multi-ethnic counties nationwide. Not surprisingly, the school has a large population of bilingual/bicultural students of immigrant background. As law faculty, we are particularly familiar with the Supreme Court’s 2003 ruling in Grutter v. Bollinger. There the justices deferred to the judgment of public universities, based on the value of student diversity, to consider race and ethnicity in university admissions. A diverse student body, the justices explained, not only contributes to a robust exchange of ideas in the classroom, but also furthers the mission of universities and law schools as training grounds for the nation’s leaders. As the Court made clear, the path to leadership must be open to talented individuals regardless of race and ethnicity.
Each year, as I have come to know students active in the multilingual advocacy group as well as others, many have shared with me their personal narratives, traversing themes of joy and angst in defining themselves as newly minted Americans. They poignantly talk about cultural gaps between them and their parents who find the openness and permissiveness of American society difficult to comprehend. Yet they also talk about their strong family and community ties, their regular contacts through telephone and Internet with relatives left behind, and their desire to pass their language and culture on to their own children. They have a profound sense of responsibility and gratitude toward their parents for beginning anew in a land that offers opportunities not available back home.
I am invariably struck by their seriousness, but also by their optimism and their big dreams. In one sense, they have a gravitas and “true grit” about them, a far lesser air of entitlement than most of today’s students. In another sense, they exude an inspiring faith in the boundless possibilities that an American law degree can bring, notwithstanding the recent downturn in the job market.
Many of them were born in the United States. Presumably all are legally in the country. If not, there would be no reason to pursue a career in the law as they could not be admitted to state bars. Yet within the legal academy we never make note of this obvious point. In a similar way, through all our faculty discussions of admissions, from U.S. News & World Report rankings to questions of merit- versus need-based scholarships and the importance of diversity, we never mention the thousands of students, some of them raised in this country from a young age, whose immigration status prevents them from even making it to the law school admissions process.
Every year, approximately 65,000 undocumented immigrant students graduate from U.S. high schools, a small but nonetheless significant number compared to the 16 million college students nationwide. Most have overcome language differences and economic hardships. For a sizable number, even a basic college education is now beyond their grasp. Any thought of a professional career hangs on a remote possibility that government someday might act to regularize their status. Meanwhile, many members of the academy, especially at the graduate level, remain benignly apathetic toward their plight.
By way of contrast, educators and researchers, myself included, spend considerable time and energy arguing in support of educational rights for young immigrant children, especially those for whom English is not their first language. We endlessly pick apart the No Child Left Behind Act and fret over NCLB’s impact on students who lack proficiency in English. At the same time, we take comfort in the Supreme Court’s 1982 landmark decision in Plyler v. Doe declaring that states and local school districts cannot deny free public schooling to undocumented immigrant students. That decision was based largely on the Court’s belief that the law should not hold innocent children responsible for a condition they did not create nor could they change. To hold otherwise, the justices feared, would produce a “subclass of illiterates … surely adding to the costs of unemployment, welfare, and crime.” And so the nation, bound by federal constitutional law, invests valuable resources in educating these children through grade 12. At that point, the state’s legal obligation ends, as do many students’ hopes for a better life.
Only 10 states allow unauthorized immigrant students to register at reduced-rate tuition at state universities. North Carolina has witnessed sustained attacks on the right of these students to even attend public colleges while South Carolina in 2008 led the way in explicitly banning them from enrolling. Yet even where they are eligible for in-state tuition, their lack of legal residency bars them from opportunities that have made higher education affordable and possible for generations of poor and middle-class Americans: state and federal grants and loans, a vast array of privately funded scholarships, and the option to work one’s way through school earning at least the minimum legal wage. And though some manage to complete college, without proper documentation they are confined to an illegal job market that underpays and underemploys them. Certification requirements likewise preclude them from realistically pursuing a professional degree.
The remedy for these ills, as portrayed in the media and political circles, lies in the Development, Relief, and Education for Alien Minors (DREAM) Act, various versions of which have been languishing in Congress since at least 2001. The Act now has 34 cosponsors in the Senate and 113 in the House. Senate majority leader Harry Reid (R-Nev.) has pledged to include the Dream Act provisions in immigration reform legislation. As the ground daily shifts on the issue, that promise searches for broad bipartisan support in a Congress torn by ideological factions.
The Dream Act, as currently conceived, would afford high school graduates of good moral character, who entered the United States at the age of 15 or younger and have resided in the country for at least five years, the opportunity for conditional permanent residency. That status would allow them to work and obtain a driver’s license and make them eligible for federal work-study and student loans. If within a six-year period they either graduate college or complete at least two years in good standing (or serve in the U.S. armed forces for at least two years), they would obtain permanent residency enabling them to apply for citizenship. The Act would further lift the federal ban on states’ providing in-state tuition to undocumented immigrants unless they offer the same benefit to U.S. citizens regardless of residence, thus reducing state costs and encouraging more states to adopt in-state tuition policies.
As groundbreaking as the Dream Act appears, however, immigrant advocates rightly argue that it does not go far enough. Without eligibility for Pell Grants and certain other federal financial assistance, college education and consequently a sure track to citizenship still will fall outside the financial reach of many capable students. Besides, the Act leaves the states free to deny in-state tuition and state financial aid even to students who meet the conditions. That bow to states’ rights, though troubling, is constitutionally grounded in the states’ traditional autonomy over higher education matters.
The similarities in background and aspirations between the potential beneficiaries of the Dream Act and my first- and second-generation law students are striking while the differences in life scripts are equally disheartening. Both groups are in this country by family choice and not of their own volition. Both are eager to become part of the American social and political fabric. Many passionately embrace the new while not completely casting off the old. Some speak accentless English while others reveal a hint of their home language. Most have come through the American public school system with all its assurances of equal opportunity and freedom.
For one group, however, those assurances are real, while for the other they are empty. One basks in the sunlight of higher education and professional school training with all the attendant social and economic advantages. Far too many in the other toil in the shadows of the underground economy, wasting bilingual skills and bicultural understandings that could better serve national purposes in a world that grows increasingly interdependent and transnational. One can only imagine the shamefully untapped numbers of future lawyers, doctors, social workers, engineers, and other professionals poised to help bridge the linguistic and cultural gaps that now divide us from each other and from the rest of the world.
That is not to deny that broad scale immigration reform is complicated, tied as it is to economic interests and national identity. Nor does it deny the critical need to stem the tide of those illegally entering the country. Yet as we pride ourselves on the diverse perspectives that immigrant students bring to graduate and professional classrooms, we also must recognize that unless and until this piece of the immigration stalemate is broken, there are thousands of qualified and motivated young people who, through no fault of their own, will never reap the benefits of that intellectual mosaic. For them, the American dream implicit in Plyler almost inevitably becomes the immigrant nightmare. Meanwhile for the nation, the full potential of a diverse professional workforce envisioned in Grutter remains unrealized. And as for those of us who educate the next generation of professionals, let us visibly join forces with those young people who are marching thousands of miles to make their voices heard.
Rosemary Salomone is the Kenneth Wang Professor of Law at St. John’s University School of Law and the author of True American: Language, Identity, and the Education of Immigrant Children  (Harvard University Press).