A legal barrier to education. The concept is distinctly un-American. We are well acquainted with the narrative. No matter how humble your childhood circumstances, if you studied hard, dreamed big and worked even harder, access to the United States’ finest universities would be yours. A college degree would provide employment opportunities, the chance to form bonds with scions of the privileged and well connected, and with any luck, a direct entree into that world of financial security.
Because this particular tale of manifest destiny has such a strong hold on the American psyche, it is understandable why the number of challenges is increasing to laws that appear to favor undocumented immigrants in post-secondary education. Compounding the problem is the harsh rhetoric surrounding the failure of the United States’ immigration system, and the alleged sapping of resources by undocumented immigrants in a time of economic recession.
One of these emerging legal challenges involves state universities and the volatile subject of tuition rates. Indeed, the issue has caught fire in the Republican presidential primary debates. During the televised debate on September 12, 2011, GOP presidential candidate and Minnesota Representative, Michele Bachmann, stated: “I think the American way is not to give taxpayer subsidized benefits to people who have broken our laws or are here in the United States illegally. That is not the American way.” During the televised debate on September 22, former Massachusetts governor, Mitt Romney stated:
It's an argument I just can't follow. I don't see how it is that a state like Texas, to go to the University of Texas, if you're an illegal alien, you get an in-state tuition discount. You know how much that is? It's $22,000 a year. Four years of college ... almost a $100,000 discount, if you're an illegal alien, to go to University of Texas. If you're a United States citizen from any one of the other 49 states, you have to pay $100,000 more. That doesn't make sense to me.
Texas governor Rick Perry responded: There is nobody on this stage who has spent more time working on border security than I have. For a decade I've been the governor of a state with a 1,200-mile border with Mexico. We put $400 million of our taxpayer money into securing that border…but if you say that we should not educate children who have come into our state for no other reason than they've been brought there by no fault of their own, I don't think you have a heart. We need to be educating these children because they will become a drag on our society.
Political commentators have argued that Perry’s response caused him to lose the debate.
On its face, it appears beyond dispute that undocumented immigrants should not enjoy privileges that are denied to bona fide citizens. In post-secondary education, however, the lines are not so easily drawn. In 1982, the United States Supreme Court held in Plyler v. Doe that state school districts are constitutionally prohibited from denying a student access to primary and secondary public school education based on immigration status. Questions regarding the reach of Plyler ensued when Congress passed section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), prohibiting the conferral of a benefit, based on residency, to an undocumented immigrant when that same benefit is not available to non-resident citizens. Currently, twelve states have enacted legislation that allow undocumented immigrants to qualify for in-state tuition rates if they fulfill a number of requirements such as graduation from a high school located within the state, and the promise to seek citizenship. Critics of these statutes argue that they employ a de facto residency requirement to avoid the issue or immigration status and, on that basis, directly violate section 505 of the IIRIRA.
Along with providing a state-by state survey of legislation associated with in-state tuition rates, this article will argue that section 505 of the IIRIRA should not be applied to post-secondary tuition rates because it directly conflicts with the Supreme Court’s decision in Plyler and Congress did not enact section 505 with this result in mind. Moreover, the Plyler reasoning should be extended to higher education because the prospect of an underclass in American society, coupled with the innocence of minor children brought to the United States by their undocumented parents, is as relevant in post-secondary education as it is in primary and secondary education. The United States’ struggle with a viable immigration scheme will only exacerbate these problems unless Plyler is extended. Politicians are exploiting the deep emotions associated with illegal immigration to enact punitive legislation that will not staunch the flow of immigrants to the United States. In so doing, these politicians are eviscerating constitutional principles in exchange for short-term political gain.
Available at: http://works.bepress.com/laura_hernandez/2/