Tuition for Undocumented Immigrants...Updates

The Arkansas Senate voted down legislation that would provide undocumented immigrants with in-state tuition rates, if they attend an Arkansas public school for atleast three years and recieve a high school diploma.  Similar legislation has been approved by 10 states in the U.S.  Yet, many states have been hesitant to move forward with such legislation, including Maryland, becuase of possible violation of federal law, as covered in a recent article in DIVERSE.

Congress passed the Illigal Immigration and Immigration Responsibility Act in 1996 to address a number of issues in the immigration debate.  One issues is that of tuition for undocumented immigrants.  The IIRIRA reads:

In General.--Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.

In essence, Congress intended to eliminate the ability for states to afford in-state tuition for undocumented immigrants through this bill.  The ten states that provide in-state tuition for these individuals, and those who attempted to do so, see a loop hole in this clause by affording in-state tuition rates for any individual who attends school for three years in-state.  Accordingly, this can be an in-state citizen, an out-of-state citizen, a legal immigrant, or an undocumented immigrant.  

Congress since attempted to overturn the limiting clause from the IIRIRA through the DREAM Act.  A major leader in this effort is Senator Richard Durbin (D-Illinois).  Votes for approval are in place, but some in the Senate have blocked this from through a failed cloture vote on the past. A recent article in Inside Higher Education highlights that proponents are attempting to attach an amendment to another bill, such as the Department of Defense Authorization Act.

Of note, the Supreme Court has yetto take up the issue of whether the federal law preempts state laws in this specific area of immigration.  Yet, the California Court of Appeals recently invalidated the California law permitting this policy in a case Martinez v. Regents of the University of California, et al. (2008).  The case has been appealed to the California Supreme Court.

I have written a paper on this issue, which you can read at your leisure.  Here is a brief abstract:

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, intending to end the practice of affording undocumented immigrants in-state tuition rates for college. Subsequently, state legislatures have acted to circumvent the federal law through technical changes in the requirements for in-state tuition. In light challenges in federal regulation of immigration, many illegal immigrants reside in America and progress through K-12 public schools. 65,000 undocumented immigrants graduate from high school each year and over 1.5 million undocumented immigrant children attend public K-12 schools. A technical battle has ensued in courts, debating the balance of federal intent and textual interpretation in a federal preemption challenge. While courts have periodically dismissed cases on procedural grounds in the past, a recent California Court of Appeals Decision in Martinez v. Regents of the University of California, et al. (2008) invalidated a California law allowing for in-state tuition for undocumented immigrants. The case has subsequently been appealed. Yet, without a U.S. Supreme Court decision, varied interpretations of the federal law will result in incongruent execution of a critically important policy of higher education tuition for undocumented immigrants.