Legal Issues in Developmental Education: Immigrant Students and the DREAM Act

Research & Teaching in Developmental Education, Fall 2005 by Miksch, Karen L

Institutions of higher education are faced with the immediate question of how to serve a growing number of students from families of undocumented immigrants. Although it is difficult to determine the number of undocumented immigrant students in the United States, the Urban Institute estimates that approximately 65,000 students who lack immigration documentation graduate every year from U.S. high schools (Fix & Passel, 2003). Even though these students were brought to the United States years ago as children and have lived in the U.S. most of their lives, they face unique barriers to higher education. As the American Association of State Colleges and Universities (AASCU) noted in its 2003 Public Policy Agenda:

Even before the tragedy of September 11, 2001, state and federal leaders were engaged in debates regarding the nation's immigration policies. While heightened security concerns have dramatically recast that debate, many of the central questions remain unchanged, including that of how to treat dependents of undocumented aliens. AASCU does not condone disregard for the nation's immigration laws, but believes that current laws discouraging or denying resident status to qualified alien students-who are here through no decision of their own-rebuke our heritage as a nation of immigrants and ignore a vital source of human capital for the New Economy.

Undocumented immigrant students' prospects for completing their education is limited because often they are considered to be "out-of-state" or international students and thus ineligible for in-state tuition. They are also ineligible for most state and federal financial aid and unable to work legally in the United States (Yates, 2004). A number of states have recently passed legislation to make undocumented students who graduate from local high schools eligible for in-state tuition. Several universities in Virginia, conversely, have decided not to admit undocumented immigrant students. In the last session of Congress, a federal law was introduced that would address the barriers to higher education faced by undocumented immigrant students. The Development, Relief, and Education for Alien Minors Act (DREAM Act) was introduced by Senator Orrin Hatch and would provide a mechanism for long-term resident immigrant students to apply for legal residency and would overturn a federal law that interferes with a state's right to determine in-state tuition.

This column will focus on laws, both state and federal, regarding undocumented immigrants and access to higher education. Then, legal challenges to Virginia Colleges' decision not to admit undocumented students will be discussed, as will a recent lawsuit challenging a Kansas law that provides in-state tuition to undocumented students. Finally, the DREAM Act and the implications for developmental education students and programs will be discussed.

Laws Regarding Undocumented Immigrants and In-State Tuition

In 1996, Congress sought to clarify the status of undocumented immigrant students in the higher education context. section 505 of the Illegal Immigration Reform and Immigration 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 ... 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 federal government has never issued regulations specifying how the provision should be interpreted and enforced (Galassi, 2003; Yates, 2004). Due to the lack of clarity at the federal level, the law has been interpreted and implemented differently by states. States providing in-state tuition for undocumented immigrants argue that the policy does not violate IIRIRA because undocumented students must have gone to state high schools and meet more stringent residency requirements than a U.S. citizen.

In 2001, Texas became the first state to make in-state college tuition rates and financial aid available to immigrant children regardless of their legal status. The law allows students who graduated from a Texas high school and have been in the country for at least three years to qualify for in-state tuition. The undocumented student must also sign an affidavit and promise to apply for legal immigration status.

Eight other states (California, Delaware, Illinois, Kansas, New York, Oklahoma, Utah, and Washington) have subsequently passed legislation providing in-state tuition for immigrant students who have graduated from state high schools (Olivas, 2004). The majority of the 21 states that have considered resident-tuition measures have sought to extend the benefit to undocumented immigrants. Only two states, Mississippi and Alaska, have passed state laws forbidding colleges and universities from providing in-state tuition for undocumented students (Fischer, 2004). In states without a state law, the question of in-state tuition for undocumented students is left up to individual colleges and universities to decide.