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In the spring of 2008, an issue over which I have been toiling away in obscurity for years became a matter of debate for the United States presidential candidates. On one side, the Democrats were promoting college access for undocumented students; on the other, Republicans were all for locking them out of higher education (except former Arkansas Governor Mike Huckabee, who, in what I think was his finest hour, said that we should not hold the sins of parents against their children). What was all the hullabaloo about?
In 1982, in Plyler v. Doe, the U.S. Supreme Court held that undocumented immigrant children could attend public schools, for which states and school districts could not charge them tuition. In the 25 years since, most school districts have accommodated themselves to this position. But the issue that hasn’t been resolved is what happens to those students when they graduate from high school and wish to attend college.
In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) set the federal rules in place: undocumented students may attend colleges, private and public, but states that wish to enable these students to be eligible for in-state public college tuition must pass legislation allowing them to establish in-state residency. Ten states have accorded them that right, while three have passed laws denying it. (In 2007, Oklahoma rescinded its statute that had allowed them to establish residency, although it grandfathered in the previously eligible students.)
Meanwhile, a number of states and their colleges and universities have been struggling with this issue. At the start of the spring 2007 semester, Arizona college and university officials, confused about what they were to do with their own restrictionist Proposition 300 ballot measure’s new requirements, decided that they would not enroll undocumented students any longer as in-state residents. By summer 2007, they were reporting that nearly 5,000 students had been removed from resident status in the state’s colleges and adult basic-education classes. (Arizona State University has tried to compensate by awarding students private money to help with financial-aid needs, but that aid ended in early 2008.) In Georgia, a behind-the-scenes waiver system had for years allowed each public college to accord in-state status to undocumented students for up to 2 percent of the college’s headcount. But on July 1, 2007, SB529, a restrictionist statute, took effect, and by 2008 undocumented students were unable to establish in-state residency in Georgia.
In other states, more draconian legislation has been proposed. The Missouri Senate Committee on Pensions, Veterans’ Affairs, and General Laws heard testimony on March 14, 2007, on five proposed bills, including one to ban all undocumented students from public institutions (HB 269). In August 2007, Virginia legislators introduced a similar bill. No states have yet banned these students from enrolling, but this surely seems to be the route down which some will attempt to travel.
In some states, existing legislation has been contested. For instance, advocates for undocumented students went to court in Virginia in 2003 to challenge the state’s refusal to accord those students in-state tuition. They lost when the court held, under Merten v. Doe, that the state was not required to accord them residency status. In early 2008, it surfaced that public colleges in Virginia had even been denying resident status to citizen applicants whose parents were undocumented. When this practice was exposed, however, the state’s attorney general issued an opinion indicating that these children were not automatically ineligible for admission or residency status and should be treated on a case-by-case basis.
Michael A. Olivas is the William B. Bates Distinguished Chair in Law at the University of Houston Law Center and director of the university’s Institute for Higher Education Law and Governance. He is the author or co-author of 12 books, including The Law and Higher Education (3rd ed., Carolina Academic Press, 2006). In 2010, Harvard University Press will publish his 13th book, on the subject of undocumented immigrant children. He is a former member of the Change editorial board.
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