Each session states debate whether to allow undocumented students to attend college at in-state tuition rates. With the faltering economy and limited skills-based jobs, improving college affordability is becoming a bigger priority. But not everyone is in agreement on who should have access to college.
Currently, at least 18 states have provisions allowing for in-state tuition rates for undocumented students. Sixteen states—California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oregon, Texas, Utah and Washington—extend in-state tuition rates to undocumented students through state legislation. Two states—Oklahoma and Rhode Island—allow in-state tuition rates to undocumented students through Board of Regents decisions. In 2013, the University of Hawaii's Board of Regents and the University of Michigan's Board of Regents adopted similar policies for undocumented students to access in-state tuition at those institutions. In April 2014, Virginia's attorney general started granting in-state tuition to those covered under the federal Defferred Action for Childhood Arrivals.
At least five states—California, Minnesota, New Mexico, Texas and Washington—currently allow undocumented students to receive state financial aid.
Three states—Arizona, Georgia and Indiana—specifically prohibit in-state tuition rates for undocumented students, and two states—Alabama and South Carolina— prohibit undocumented students from enrolling at any public postsecondary institution.
Undocumented Student Tuition Background
Due to the landmark 1982 Plyler v. Doe U.S. Supreme Court decision, states are required to provide all students with K-12 public education, regardless of students' immigration status. Although the court did not declare education a fundamental right, it was determined that a "public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage; the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological well-being of the individual, and poses an obstacle to individual achievement."
The Supreme Court’s decision, however, does not apply to education beyond high school. In addition, Section 505 of 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.”
Since 2001, 18 states—California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oklahoma*, Oregon, Texas, Utah, Washington, and Wisconsin—have passed legislation extending in-state tuition rates to undocumented students who meet specific requirements. Wisconsin revoked its law in 2011. In general, students must attend an in-state high school for a specified period (1-3 years), and graduate or receive their GED. Supporters of the legislation argue that the requirement to receive in-state tuition is based on high school attendance and graduation, not residency, and so it is not in conflict with IIRIRA. Opponents claim that the high school attendance and graduation requirement is a de-facto residency requirement. The debate over the legality of such laws was on display in California, where the state Supreme Court upheld the state’s tuition law by ruling that it does not violate federal law.
Three states—Arizona, Georgia and Indiana—have passed legislation that specifically prohibits undocumented students from receiving in-state tuition rates. Alabama and South Carolina go one step further and prohibits undocumented students from enrolling at any public postsecondary institution. 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."
At least five states—California, Minnesota, New Mexico, Texas and Washington—allow undocumented students to receive state financial aid. Students without legal immigrant status are ineligible for federal financial aid.
*Oklahoma has since amended its law, leaving granting of in-state tuition rates to undocumented students up to the Oklahoma Board of Regents. The Board of Regents currently still allows undocumented students who meet Oklahoma's original statutory requirements to receive in-state tuition. The amended law ended the awarding of state financial aid to undocumented students.
The Undocumented Student Tuition Debate
Supporters of in-state tuition for undocumented students make the following arguments:
- Many undocumented students came to the United States with their parents as young children and should not be deprived of higher education because of their parents’ choices.
- A large percentage of undocumented students have either graduated from a public high school or obtained a GED. It is inconsistent to provide these students with an education that ends at high school graduation. Currently, the postsecondary options for undocumented students are severely limited, which limits their future social and economic mobility.
- Legislation granting undocumented students in-state tuition rates gives these students an incentive for completing high school, attending college, and eventually contributing to a state's society and economy.
- According to the College Board's Trends in College Pricing report, during the 2008-2009 academic year, the average cost of attending a public four-year college for in-state students was $7,020. The same education for out-of-state students cost an average of $11,528. Legislation allowing undocumented students to pay in-state tuition rates would make higher education more affordable and accessible for those who already meet the proper residency and academic requirements. Without access to postsecondary education, a growing uneducated workforce results in significant costs to states.
- According to the Alliance for Excellent Education, each year, 1.2 million students drop out of high school. Over half of America's dropouts are from minority groups. Since dropouts earn significantly less than their classmates who receive high school diplomas, the cost of lost wages is significant. Throughout their lives, the dropouts from 2008 alone will cost states $319 billion in lost wages.
- According to a 2005 report from the American Association for State Colleges and Universities (AASCU), failing to help students attend college results in higher costs to state prisons and state welfare systems.
- Another AASCU report, Access for All, found that a large proportion of undocumented college-age individuals are likely to stay in the United States even if they don't have access to higher education. It is in the best interest of everyone to provide access to higher education for the undocumented students that reside in the state.
Opponents of in-state tuition for undocumented students make the following arguments:
- Allowing undocumented students to pay in-state tuition rates, especially during tight economic times, takes opportunities away from U.S. citizens and legal immigrants. Granting resident tuition rates rewards undocumented students and their families for breaking the law, while at the same time punishes legal citizens and legal immigrants by taking away enrollment slots for them.
- In-state tuition for undocumented students provides incentives for people to immigrate illegally to the U.S, or to remain in the U.S. after visas have expired.
- Granting resident tuition rates to undocumented students is illegal. Such legislation violates Section 505 of IIRIRA, and Section 401 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). Section 401 states that an "alien who is not a qualified alien is not eligible for any public benefit," which opponents claim includes in-state tuition to postsecondary institutions. In 2005 and 2006, two cases, Day v. Sibelius and Martinez v. Regents, brought to appellate courts in Kansas and California respectively, challenged the granting of in-state tuition benefits to undocumented students. Plaintiffs in both cases argued that the legislation violated federal immigration laws and the Equal Protection Clause. Both cases were dismissed on the grounds that the plaintiffs failed to prove that the law injured them personally. The plaintiffs in California appealed the decision; in 2008, the appellate court overturned the prior decision and ruled that the California law granting in-state tuition to undocumented students violated federal law. The case is now waiting to be heard by the California Supreme Court.
- Granting in-state tuition rates to undocumented students is too costly, and tax dollars should not be used to support undocumented students. Organizations such as the Federation for American Immigration Reform (FAIR) contend that undocumented students should not have access to publicly funded benefits, including postsecondary education.
- Even if undocumented students attend college, they will not be employable if they are still undocumented after graduation. A 2005 Wall Street Journal article depcits the grim situation facing Texas students who attend college under the undocumented student tuition law, and find themselves with a degree, but no job.