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Undocumented Student Tuition Federal Action

Undocumented Student Tuition: Federal Action

Additional Information

NCSL Education Program

May 2011

Relevant Federal Law

  • The 1965 Higher Education Act, requires that applicants for federal financial aid be legal U.S. residents.
  • The 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) states, “…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.”
  • The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) states, “An alien who is not a qualified alien is not eligible for aony Federal public benefit [including] any retirement, welfare, health, disability, public or assisted housing, postsecondary education, fod assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States" (8 U.S.C. §1611).


State Legislation in Relation to Federal Law

To maneuver around the IIRIRA requirements, the states that have enacted laws granting in-state tuition rates to undocumented students have worded the legislation so that it is contingent on high school attendance and graduation, and not based on residency within the state. Since legal U.S. residents are also entitled to in-state tuition rates based on the same criteria, the states claim that their laws do not violate the IIRIRA or PRWORA.

While the debate continues about the nuanced meanings of the IIRIRA and PRWORA, most experts agree that neither law prohibits postsecondary institutions from admitting unauthorized immigrant students who are willing to pay out-of-state tuition rates. The U.S. Immigration and Customs Enforcement wrote in 2008 that "individual states must decide for themselves whether or not to admit illegal aliens into their public postsecondary institutions."  It remains unclear, however, whether states have the authority to grant in-state tuition rates to undocumented students. The California Supreme Court upheld California's law that grants in-state tuition rates to eligible undocumented students, but that ruling is only applicable in California.  Other state court systems can still challenge their own laws.


Student Adjustment Act

In April 2003, members of Congress sponsored bipartisan legislation to repeal Section 505 of the IIRIRA. The Student Adjustment Act, as the legislation was called, would have allowed certain minor immigrant children to gain legal status and would have permitted states to offer in-state tuition rates and financial aid to undocumented students. In 2003, the legislation stalled in committee and has not been reintroduced since.


DREAM Act

The DREAM (Development, Relief, and Education for Alien Minors) Act is a bi-partisan bill that was first introduced in 2001. The DREAM Act would allow states to offer in-state tuition to unauthorized immigrant students, and would provide temporary residency for immigrants enrolled in college or serving in the military. This legislation would provide a pathway for those students who pursue two or four-year degrees to obtain permanent residency. This legislation has stalled in Congress several times since its introduction in 2001. Most recently, the DREAM Act was reintroduced on May 11, 2011.

 

Resource

Jennifer L. Frum, American Federation of Teachers, "Postsecondary Educational Access for Undocumented Students: Opportunities and Constraints."

 

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