In-State Tuition and Unauthorized
Immigrant Students
Revised January 28, 2010 - NCSL
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.
Eleven states subsequently enacted
legislation to allow long-term unauthorized
immigrant students to become eligible for
in-state tuition if they meet certain
requirements: California, Illinois, Kansas,
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.
Congress has been considering bipartisan
legislation to repeal this provision and help
certain immigrant students gain legal
status. In the 110th Congress, legislation
in both the House and Senate was introduced with
bipartisan cosponsorship.
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 notes that there is disagreement about
the meaning of the provision, and there is no
guidance in congressional report language or in
federal regulations.
The Development, Relief and Education for
Alien Minors Act (the DREAM Act, S. 774) 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 16 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; and is not
inadmissible or deportable under criminal or
security grounds of the Immigration and
Nationality Act. These students could obtain a
permanent resident status after two years of
college or military service. Introduced by
Senator Durbin, the legislation has 26
cosponsors. In the House, similar legislation
was introduced by Congressman Berman and has 86
cosponsors (H.R. 1275, The American Dream Act).
In May, 2006, it was part of the
comprehensive immigration reform bill that
passed the Senate (S.2611).
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
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),
Oklahoma (SB596)and Illinois (HB60)
in 2003; Kansas (HB2145) in 2004; New
Mexico (SB582) in 2005; Nebraska
(LB239) in 2006; and Wisconsin
(A75) in 2009. The state laws permitted 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 must sign an affidavit promising to seek
legal immigration status in all states except
New Mexico. These requirements for unauthorized
immigrant students are stricter than the
residency requirements for out-of-state students
to gain in-state tuition.
In 2008, Oklahoma passed HB 1804 which ended
its in-state tuition benefit, including
financial aid, for students without lawful
presence in the United States. The Act allows
the Oklahoma State Regents to enroll a student
in higher education institutions permitted that
they meet special requirements.
Other states that have barred
unauthorized immigrant students from in-state
tuition benefits include Arizona
(Proposition 300, 2006), Colorado (HB
1023, 2006), Georgia (SB 492, 2008), and
South Carolina (HB4400, 2008).
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.
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 United States Supreme Court
declined to review the federal review courtfs
ruling.
Prepared by Ann Morse and Kerry
Birnbach
Immigrant Policy Project,
National Conference of State
Legislatures