In-State Tuition and Unauthorized Immigrant Students

Revised November 28, 2012

NEW:   On November 27, 2012, Senators Kay Bailey Hutchison (R-Texas), Jon Kyl (R-Ariz.) and John McCain (R-Ariz). introduced the ACHIEVE Act (S.3639) to provide legal status for young unauthorized immigrant students.  The bill would create a new W visa that provides temporary legal status and permission to work for those who meet certain criteria.  They must have five years of residence in the United States; have arrived before the age of 14; be under the age of 29 and enrolled in college (or under 32 if they hold a degree from a college in the United States); have committed no crimes; and have knowledge of English language, American history, and U.S. government.  Applicants who graduate from college or complete four years of military service can then apply for work visas that can be renewed every four years.  The bill does not authorize federal tuition aid or other public benefits and it does not provide a path to citizenship.

Introduction

In 1996, the illegal immigration reform law instituted a restriction on states' residency requirements and in-state tuition benefits for higher education, affecting an estimated 50,000-65,000 unauthorized immigrant students annually.

Thirteen states subsequently enacted legislation to allow long-term unauthorized immigrant students to become eligible for in-state tuition if they meet certain requirements: California, Connecticut, Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, Washington and Wisconsin.  In 2008, Oklahoma ended its support for in-state tuition for students without lawful presence. 

Since 2001, Congress has been considering bipartisan legislation to repeal this provision and help certain immigrant students gain legal status.  In the 112th Congress, legislation in both the House and Senate was introduced with bipartisan cosponsorship (H 1842 and S 952).

Federal Background

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 (Sec. 505) sought to prohibit states from providing a postsecondary education benefit to an alien not lawfully present in the United States on the basis of residence unless any U.S. citizen or national is eligible for the same benefit. (P.L. 104-208).  The Congressional Research Service noted that there is disagreement about the meaning of the provision.  There is no guidance in congressional report language or in federal regulations.

The Development, Relief and Education for Alien Minors Act  of 2011 (the DREAM Act, H 1842) would restore the state option to determine residency for purposes of higher education benefits. It would provide conditional legal status to an individual who:  was under the age of 15 when he or she entered the country; has been physically present in the United States for at least five years; has earned a high school diploma or GED; is a person of good moral character; is not inadmissible or deportable under criminal or security grounds of the Immigration and Nationality Act; and was younger than 32 years of age when the law is enacted. Applicants must submit biometric and biographic data; undergo security and law enforcement background checks; undergo a medical exam; and register for military selective service.  These students would be able to obtain permanent resident status after two years of college or military service.  Introduced by Congressman Berman on May 11, the legislation has 115 cosponsors.  In the Senate, similar legislation was introduced by Senator Durbin and has 35 cosponsors (S.392).

Proponents of these bills argue that unauthorized immigrant children had no choice in entering the United States illegally, have grown up in the United States, and can make economic and social contributions if allowed to continue their studies. Opponents believe the bills would reward lawbreakers, that only lawful resident students should qualify for resident tuition, and that it could result in added cost to taxpayers.  

Any child, regardless of immigration status, is eligible for free primary and secondary education under a 1982 Supreme Court decision (Plyler v. Doe). The Supreme Court feared that denying children an education might create a permanent underclass of illegal immigrants who would probably remain in the United States the rest of their lives. Discrimination against the children would punish them for the acts of their parents, since the children had no choice in entering the United States. The denial of an education to these children would stamp them with an "enduring disability" that would harm both them and the State all their lives.

When students without legal residency apply for college they are asked for a social security number and citizenship status. While they may still be allowed to attend, they are not eligible for federal aid until they gain legal immigration status. Legal status can sometimes be obtained through family or work-based petitions (e.g., U.S. citizen can apply for their spouse or an employer can apply for their employee), or through the Diversity Lottery Program.

State Actions

Twelve states currently have statutes that condition eligibility for instate tuition on attendance and graduation from a state high school and acceptable college admission applications.  In June 2001, Texas (HB1403) was the first state to pass legislation allowing in-state tuition for immigrant students, followed by California (AB540), Utah (HB144), and New York (SB7784) in 2001-2002; Washington (HB1079), Illinois (HB60) in 2003; Kansas (HB2145) in 2004; New Mexico (SB582) in 2005; Nebraska (LB239) in 2006; Wisconsin (A75) in 2009; Maryland (S167/H470) and Connecticut (H6390) in 2011. The state laws permit these students to become eligible for in-state tuition if they graduate from state high schools, have two to three years residence in the state, and apply to a state college or university. The student may be required to sign an affidavit promising to seek legal immigration status.  These requirements for unauthorized immigrant students are stricter than the residency requirements for out-of-state students to gain in-state tuition.

In 2003, Oklahoma passed SB 596 allowing instate tuition, but in 2008, HB 1804 was enacted, which ended its in-state tuition benefit, including financial aid, for students without lawful presence in the United States. HB1804 allowed the Oklahoma State Regents to enroll a student in higher education institutions permitted that they meet special requirements.  

In July, 2011, California enacted legislation permitting unauthorized immigrant students to receive financial aid and scholarships (A130).

In September, 2011, Rhode Island’s Board of Governors for Higher Education approved policy to allow unauthorized students to pay in-state tuition at public colleges.

In 2011, Maryland enacted legislation allowing instate tuition for unauthorized immigrant students provided they meet certain conditions, including the completion of 60 credit hours or graduation from a community college in Maryland. The law was put on the 2012 ballot and on November 6, Maryland voters approved the ballot measure 59 to 41 percent.

States that have barred unauthorized immigrant students from in-state tuition benefits include Alabama (HB56, 2011), Arizona (Proposition 300, 2006), Colorado (HB 1023, 2006), Georgia (SB 492, 2008), South Carolina (HB4400, 2008), and Indiana (H 1402, 2011). 

Court Cases

California: Students paying out-of-state tuition attending California schools filed a lawsuit in the Yolo County State Superior Court (Martinez v. Regents, No. CV 05-2064), claiming that education officials violated the IIRIRA by offering in-state tuition to unauthorized immigrant students while continuing to charge U.S. citizens out-of-state tuition rates. The complaint was filed against the University of California, California State University, and state community college systems, who offered in-state tuition to unauthorized immigrant students following Assembly Bill 540, enacted in October 2001. On October 6, 2006, Judge Thomas E. Warriner upheld the schools' decision to grant eligibility to unauthorized immigrant students for in-state tuition.  In September, 2008, a California appeals court reinstated the lawsuit and returned it for consideration in Yolo County Superior Court.  In November, 2010, the California Supreme Court upheld the state’s method for providing in-state tuition to unauthorized immigrant students and ruled it did not conflict with federal law.  An appeal was filed with the U.S. Supreme Court.  On June 6, 2011, the Supreme Court declined to review the ruling.

Kansas:  A claim was brought to the Kansas District Court by a Missouri resident denied in-state tuition while unauthorized immigrant students were granted in-state tuition benefits, arguing that this violated IIRIRA (Day v. Sibelius, No. 04-4085/Day v. Bond, No. 07-1193).  The Kansas District Court dismissed the claim for lack of standing.  The decision  was upheld in the U.S. Court of Appeals for the Tenth Circuit.  On June 23, 2008, the U.S. Supreme Court declined to review the federal review court’s ruling.  

Prepared by Ann Morse and Kerry Birnbach
Immigrant Policy Project, National Conference of State Legislatures