Each of your answers should be written using your own words. Do not copy and paste from your textbook or an Internet source. Ensure you cite your work and add reference(s) at the end of your journal. Only Textbook/Main References from:
Boss, Judith A. (2015). Think: Critical Thinking for Everyday Life (4th ed.). New York, NY: McGraw Hill. ISBN 978-0-07-803843-3.
This assignment is designed to see if you are reading and understanding the material from your textbook and video, so these should be the sources you are citing in your work. Do not use Wikipedia as a source.
** After reading Chapter 6, look back at one of the articles you have chosen and evaluate whether the argument made by the author/authors have clarity, credibility, relevance, completeness and soundness (should be no longer than 1 typed page).
I. INTRODUCTION
An estimated 11.5 million of the more than 40 million foreign-born
individuals residing in the United States are considered “undocumented
immigrants.”1 Roughly 1.8 million of the nation’s undocumented
population is eighteen years old or younger,2 and an estimated 65,000
undocumented students graduate from American high schools each year.3 In
light of the expansive undocumented youth population in the United States,
on June 15, 2012, the Obama Administration authored the memorandum
*Angela D. Adams serves as Associate General Counsel for Immigration at Indiana
University. Before joining Indiana University, Ms. Adams was a partner at Lewis
& Kappes, P.C. where she advised both employers and individuals on a broad
range of immigration issues. Prior to joining Lewis & Kappes, she served as an
Education Consultant for the Division of Language Minority and Migrant Programs
within the Indiana Department of Education. She currently serves as the Chair of
the Indiana Chapter of the American Immigration Lawyers Association (AILA).
Please note that the views, opinions and assumptions in this article are those of the
author and do not necessarily reflect the official policy or position of Indiana
University.
**Kerry S. Boyne received her J.D. from Indiana University Maurer School of Law
in 2012. Ms. Boyne works in the immigration field, assisting clients in acquisition
of deferred action for childhood arrivals, family based immigrant visas, U visas,
adjustment of status, asylum, consular processing, waivers of inadmissibility, and
various forms of relief from removal.
1 Faye Hipsman & Doris Meissner, Immigration in the United States: New
Economic, Social, Political Landscapes with Legislative Reform on the Horizon,
MIGRATION POLICY INST. (Apr. 16, 2013), http://perma.cc/9D66-62W5. This term
refers to those foreign born individuals residing in the United States without lawful
immigration status.
2 Vanessa Cárdenas & Sophia Kerby, The State of Latinos in the United States,
CTR. AM. PROGRESS (Aug. 8, 2012), https://perma.cc/TLB2-QWSP.
3 CATHERINE EUSEBIA & FERMÍN MENDOZA, EDUCATORS FOR FAIR EDUCATION,
THE CASE FOR UNDOCUMENTED STUDENTS IN HIGHER EDUCATION 5 (2013),
available at http://perma.cc/UJM4-MR8E.
http://dx.doi.org/10.18060/7909.0004
48 IND. INT’L & COMP. L. REV. [Vol. 25:1
Exercising Prosecutorial Discretion with Respect to Individuals Who Came
to the United States as Children.4 This memorandum called for a new
program referred to as Deferred Action for Childhood Arrivals (“DACA”)
and directed U.S. immigration authorities to withhold immigration
enforcement against, and grant temporary relief to, many young
undocumented individuals residing in the United States. When
implemented, the DACA program represented a monumental change in our
nation’s immigration policies and stood to benefit an estimated 1.4 million
undocumented youths in the United States.5 Since its inception
approximately 642,685 individuals have applied for DACA, with more than
553,000 applications approved and several thousand still pending.6 On
November 20, 2014, the President announced an expanded DACA which
could stand to benefit an additional 300,000 people in the United States.7
The implementation of the DACA program has prompted new
discourse regarding state laws and policies addressing access to
postsecondary education for “DACAmented”8 and undocumented students.
A growing number of states have passed legislation and implemented
policies allowing both DACA recipients and undocumented students to
enroll in colleges and universities, and pay resident tuition rates at public
institutions of higher education. With no federal law prohibiting
postsecondary enrollment9 or resident tuition rates for DACA and
undocumented students,10 states have been dealing with these questions in
different and often inconsistent ways.
This article examines developments in federal and state laws and
policies that have come into play over the last decade, providing an update
to the 2005 publication of Higher Education for Undocumented Students:
4 Memorandum from Sec’y of Homeland Sec. Janet Napolitano to David V.
Aguilar, Acting Comm’r, U.S. Customs and Border Prot.; Alejandro Mayorkas,
Director, U.S. Citizenship and Immigration Services; and John Morton, Director,
U.S. Immigration and Customs Enforcement (June 15, 2012) [hereinafter
Napolitano Memorandum], available at http://perma.cc/R4C7-76SM.
5 Economic Benefits of Granting Deferred Action to Unauthorized Immigrants
Brought to U.S. as Youth, IMMIGRATION POL’Y CTR. (June 22, 2012),
http://perma.cc/W6FB-EABT.
6 U.S. CITIZENSHIP AND IMMIGRATION SERVICES, NUMBER OF I-821D,
CONSIDERATION OF DEFERRED ACTION FOR CHILDHOOD ARRIVALS BY FISCAL
YEAR, QUARTER, INTAKE, BIOMETRICS AND CASE STATUS: 2012-2014 (2014),
available at http://perma.cc/9W9B-TD3U.
7 See http://www.uscis.gov/immigrationaction#daca for additional guidelines on
expanded DACA program.
8 A term often used to refer to DACA recipients, see Roberto G. Gonzales & Angie
M. Bautista-Chavez, Two Years and Counting: Assessing the Growing Power of
DACA, IMMIGRATION POLICY CTR. (June 2014), http://perma.cc/Q2EF-QAWS.
9 See discussion infra Part III.A.
10 See discussion infra Part III.B.
2015] ACCESS TO HIGHTER EDUCATION 49
The Case for Open Admission and In-State Tuition Rates for Students
Without Lawful Immigration Status.11 Specifically, this article focuses on
how these developments relate to access to education for our nation’s
undocumented and DACAmented population. First, the authors examine
federal initiatives offering relief to undocumented youths in the United
States and the development of the DACA program. Next, the article
considers how access to higher education for both undocumented and
DACA students is viewed under federal laws. The study concludes by
analyzing the intersection and impact of federal advances with a sampling
of state laws and policies related to the enrollment and access to resident
tuition rates at public universities for DACA and undocumented students.
II. “DREAMERS” AND THE DISTINCTION BETWEEN DACA RECIPIENTS
AND UNDOCUMENTED STUDENTS
A. The Current Status of the DREAM Act
For more than a decade, a number of federal laws have been proposed
that would offer assistance to undocumented students living in the United
States. The Development, Relief, and Education of Alien Minors
(“DREAM”) Act was initially introduced in the Senate in 2001.12 The
DREAM Act was designed to confer lawful immigration status to certain
individuals who entered this country as children and pursued a higher
education degree or served in the U.S. military, often referred to as
“DREAMers.” The term DREAMers may include both DACA and
undocumented students; however, DACA and undocumented students are
not the same, as explained further below. Since its inception, the DREAM
Act has been proposed in a variety of different forms, but has never been
passed into law by Congress. In 2013, former House Majority Leader Eric
Cantor13 proposed the Kids Act, an alternative to the DREAM Act that
would provide DREAMers an opportunity to earn a path to citizenship
11 Thomas R. Ruge & Angela D. Adams (Iza), Higher Education for
Undocumented Students: The Case for Open Admission and In-State Tuition Rates
for Students Without Lawful Immigration Status, 15 IND. INT’L & COMP. L. REV.
257 (2005). The authors would like to thank Thomas Ruge for his contributions to
this article.
12 S. 1291, 107th Cong. (2001).
13 On June 10, 2014, Representative Cantor lost the Republican Primary Election to
Dave Brat and soon thereafter announced his intention to resign as House Majority
Leader, effective July 31, 2014. See Luke Russert & Frank Thorp, Cantor
Announces Resignation As Majority Leader, NBC NEWS (June 11, 2014, 1:12 PM),
http://perma.cc/BK5Z-PRB8.
50 IND. INT’L & COMP. L. REV. [Vol. 25:1
through either college or military service.14 Approval of this Act is
currently stalled in the House, as representatives continue to debate whether
it should permit beneficiaries of the Act to petition for their undocumented
parents to gain lawful status through their children.15
B. The Distinction between DACA Recipients and Undocumented Students
DACA, initially announced on June 15, 2012, provides certain
individuals who do not have lawful immigration status and who entered the
United States as minors with a two-year grant of deferred action; meaning,
during that time the Department of Homeland Security (“DHS”) will
exercise its discretion to forego placing DACA recipients in immigration
removal proceedings.16 DACA recipients are eligible for employment
authorization17 and a Social Security number,18 and in most states they can
obtain a driver’s license.19
DACA does not grant lawful immigration status to recipients, nor
does it provide a pathway to citizenship.20 However, under guidelines
issued by U.S. Citizenship and Immigration Services (“USCIS”), receipt of
DACA does, in fact, make one “lawfully present”21 in the United States.22
There is a clear distinction between “lawful presence” and “lawful status.”
An individual is deemed to be unlawfully present in the United States if he
or she entered the country without having been admitted or paroled or
14 Cesar Vargas, Halt Deportation and Pass KIDS Act As Steps to Immigration
Reform, THE HILL (Nov. 16, 2013, 9:00 AM), http://perma.cc/4AW7-P64S.
15 Fawn Johnson, Parent Sponsorship Stalls Kids Act, NAT’L J. (Nov. 3, 2013),
http://perma.cc/B493-HAER.
16 Napolitano Memorandum, supra note 8.
17 Id.
18 SOC. SEC. ADMIN., SOCIAL SECURITY NUMBER—DEFERRED ACTION FOR
CHILDHOOD ARRIVALS, available at http://perma.cc/EEN6-6Y3F.
19 Are Individuals Granted Deferred Action Under the Deferred Action for
Childhood Arrivals (DACA) Policy Eligible for State Driver’s Licenses? NAT’L
IMMIGRATION LAW CTR. (June 19, 2013), http://perma.cc/Y2PE-TC2D.
20 U.S. DEP’T HOMELAND SEC., U.S. CITIZEN & IMMIGRATION SERVS.,
FREQUENTLY ASKED QUESTIONS [hereinafter USCIS FAQ] (“Deferred Action for
Childhood Arrivals (DACA) is an exercise of prosecutorial discretion and does not
provide lawful status or a pathway to citizenship.”), http://perma.cc/7DN7-M8ZQ.
21 The concept of lawful presence plays an integral role in examining a student’s
eligibility for in-state tuition; see discussion infra Parts III and IV.
22 See USCIS FAQ, supra note 23 (“However, although deferred action does not
confer a lawful immigration status, your period of stay is authorized by the
Department of Homeland Security while your deferred action is in effect and, for
admissibility purposes, you are considered to be lawfully present in the United
States during that time.”).
2015] ACCESS TO HIGHTER EDUCATION 51
remains in the country following the expiration of an authorized stay.23
Unlawful status, on the other hand, relates to whether or not the individual
has violated the terms of his or her previously lawful status by committing a
certain act, like a crime or accepting unauthorized employment.24 DACA
recipients, therefore, find themselves in a unique situation, as they are
lawfully present in the United States regardless of their lack of immigration
status. However, given the fact DACA is not enacted as law, DHS has the
authority to renew or even terminate a DACA grant at any time. Further,
because DACA operates by presidential executive authority, the program’s
continuance depends on the desire of future U.S. Presidents.
In order to qualify for DACA, an undocumented individual must:
1. have entered the United States before his or her sixteenth
birthday;
2. have been continuously present in the United States25 since June
15, 200726 and, more specifically, been physically present in the
United States on June 15, 2012;
3. be currently enrolled in school, graduated from high school,
obtained a General Educational Development (“GED”) certificate,
or be enrolled in or have successfully completed another qualifying
23 Immigration and Nationality Act (INA) § 212(a)(9)(B)(ii), 8 U.S.C. §
1182(a)(9)(B)(ii) (2013).
24 9 Foreign Affairs Manual § 40.92 (2013).
25 An exception is made for “brief, casual, and innocent” absences from the United
States. See U.S. Dep’t Homeland Sec., U.S. Citizen & Immigration Servs.,
Consideration of Deferred Action for Childhood Arrivals (DACA): Guidelines
[hereinafter USCIS, Guidelines], http://perma.cc/N5U3-B8B2 (last updated Feb.
18, 2014).
26 Id.; Additionally, the reader should note that on November 20, 2014, the Obama
Administration announced, among other immigration initiatives, an “expanded”
form of DACA that would permit individuals who have been continuously present
in the United States since January 1, 2010, rather than June 15, 2007, to apply for
DACA benefits that would span a three-year timeframe. Memorandum from Sec’y
of Homeland Sec. Jeh Johnson to Leon Rodriguez, Director, U.S. Citizenship and
Immigration Services; Thomas S. Winkowski, Acting Director, U.S. Immigration
and Customs Enforcement; and R. Gil Kerlikowske, Comm’r, U.S. Customs and
Border Prot. (November 20, 2014), available at
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_actio
n.pdf. USCIS was scheduled to begin processing applications for expanded DACA
on February 18, 2015; however, in light of a recent preliminary injunction issued
by the Southern District of Texas, the Service has placed a hold on processing said
applications pending the resolution of the federal lawsuit. See
http://pdfserver.amlaw.com/nlj/texas_immigration_20150216.pdf. See also Julia
Preston, Obama Immigration Policy Halted by Federal Judge in Texas, NY TIMES
(Feb. 17, 2015), http://www.nytimes.com/2015/02/18/us/obama-immigrationpolicy-
halted-by-federal-judge-in-texas.html.
52 IND. INT’L & COMP. L. REV. [Vol. 25:1
educational program (e.g., GED preparatory course and/or English
as a second language course);
4. be at least fifteen years old at the time of the application,27 but
not more than thirty as of June 15, 2012; and
5. have never been convicted of a felony, significant
misdemeanor,28 or more than three non-significant misdemeanors,
and not pose a national security or public safety threat.
The implementation of the DACA program grants those to which it
applies authorization to work and remain in the United States. Some would
therefore say that DACA recipients are no longer “undocumented” because
they have been determined by the federal government to be lawfully present
in the United States, irrespective of their immigration status.
III. Federal Laws Addressing Higher Education for
Undocumented and DACA Students
A. Existing Federal Laws Do Not Prohibit Enrollment of DACA and
Undocumented Students
Federal law neither prohibits undocumented or DACA students from
enrolling in public postsecondary educational institutions nor entitles them
to such a right. In Plyler v. Doe, the Supreme Court of the United States
examined the constitutionality of a Texas statute that withheld “from local
school districts any state funds for the education of children who were not
‘legally admitted’ into the United States, and which authorize[d] local
school districts to deny enrollment to such children.”29 Relying on the
Equal Protection Clause of the Fourteenth Amendment, the Court ruled that
a state cannot deny a free public education from kindergarten through
twelfth grade to undocumented immigrant students who are residing in a
school district, as there was no empirical evidence to demonstrate that the
policy would further a substantial state interest. The Court ultimately held
that states must guarantee to children free public school access to a primary
27 DHS provides for an exception of this minimum age requirement for individuals
who are under the age of fifteen and have previously been in removal proceedings.
See id.
28 A significant misdemeanor includes an offense for which an individual was
sentenced to, and actually spent, more than ninety (90) days in custody. USCIS,
Guidelines, http://perma.cc/N5U3-B8B2 (last updated Feb. 11, 2015). Additionally,
offenses of domestic violence, sexual abuse, burglary, unlawful possession or use
of a firearm, drug distribution or trafficking, or, driving under the influence are also
considered significant misdemeanors, regardless of the sentence imposed. Id.
29 Plyler v. Doe, 457 U.S. 202, 205 (1982) (5-4 decision) (Burger, C.J., dissenting).
2015] ACCESS TO HIGHTER EDUCATION 53
and secondary education, regardless of their immigration status.30 This
holding neither extends nor prohibits the same protections to higher
education.
There are very few cases specifically addressing the question of
admission of undocumented students into institutions of higher education.
For example, in Equal Access Education v. Merten, the U.S. District Court
for the Eastern District of Virginia addressed whether states could deny
admission to undocumented students.31 The court held that, under the
Supremacy Clause of the U.S. Constitution, admissions policies must
include federal immigration standards for determining the immigration
status of college applicants.32 In recognizing the absence of federal law
addressing the admission of undocumented students to public institutions of
higher education, the court upheld Virginia’s policy of precluding
undocumented students from enrolling.33
B. Granting Resident Tuition Rates to DACA and Undocumented Students
is Not Contrary to Federal Law and is within States’ Discretion
The Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), codified at 8 U.S.C. §1623(a), prohibits public postsecondary
educational institutions from providing any “alien who is not lawfully
present in the United States” with a postsecondary education benefit,
“unless a citizen or national of the United States is eligible for such a
benefit . . . without regard to whether the citizen or national is such a
resident.”34 Because DACA students are lawfully present in the United
States,35 this federal law does not apply to them. While there are no federal
regulations interpreting these statutes as applied to undocumented students,
a plain reading shows no prohibition of lower tuition rates based on a
uniformly applied residency or other requirement. The use of the word
“unless” suggests that states have the power to determine residency for
undocumented immigrant students. The statute simply conveys that a state
or institution cannot give additional consideration to an undocumented
student that it would not give to a U.S. citizen.
The Personal Responsibility and Work Opportunity Reconciliation
Act of 1996 (“PRWORA”), codified at 8 U.S.C §1611, provides that
foreign nationals who are not “qualified aliens” are ineligible to receive
public benefits. Although DACA and undocumented students do not fit the
30 Id at 230.
31 Equal Access Education v. Merten, 305 F. Supp. 2d 585 (E.D. Va. 2004).
32 Id. at 608. For extended discussion and analysis of cases addressing enrollment
of undocumented students, see Ruge & Iza, supra note 14, at 264-66.
33 Merten, 305 F. Supp. 2d at 614.
34 8 U.S.C. § 1623(a) (2013).
35 USCIS FAQ, supra note 25.
54 IND. INT’L & COMP. L. REV. [Vol. 25:1
statutory definition of “qualified aliens,”36 a careful examination of the
definition of “public benefit” reveals that federal law does not prohibit
offering in-state tuition rates to undocumented and DACA students. The
U.S. Code provides a list of what qualifies as a “state or local public
benefit,” which includes “postsecondary education . . . for which payments
or assistance are provided to an individual.”37 A number of courts have
held that the definition of public benefits under 8 U.S.C. §1621 and §1623
refers to monetary benefits and not the granting of in-state tuition rates.38
Other courts have asserted that Congress never intended to prohibit states
from providing in-state tuition to foreign nationals, because it would have
written §1623 differently had it intended to do so.39 Under 8 U.S.C.
§1621(d), states have the authority to enact laws that determine the
eligibility of foreign national students for certain state and local benefits.40
The Supreme Court of the United States has also held that states have the
discretionary power to regulate tuition for publicly-funded schools.41 The
Court has remarked that public education is not “merely some
governmental ‘benefit’ indistinguishable from other forms of public
welfare.”42 Therefore, federal law does not prohibit DACA and
undocumented students from receiving in-state tuition rates, and states have
discretion to enact laws in this area.
C. Federal Law Restricts Federal and State Financial Aid to DACA and
Undocumented Students but Gives States Authority
The statutes discussed above prohibit DACA and undocumented
students from receiving federal and state financial aid as they would not be
considered “qualified aliens.”43 In addition, financial aid would likely be
considered a “state or local public benefit,” which 8 U.S.C. §1621 defines
as:
(a) any grant, contract, loan, professional license or
36 Among other categories, qualified aliens are those with lawful permanent
resident status, asylees, and refugees. See 8 U.S.C. § 1641(b).
37 See 8 U.S.C. § 1623(c)(1)(B) (emphasis added).
38 See Merten, 305 F. Supp. 2d at 607; see also County of Alameda v. Agustin,
2007 Cal. App. Unpub. Lexis 7665, at *10 (1st App. Dist. Sept. 24, 2007).
39 See Martinez v. Regents of the Univ. of California, 50 Cal.4th 1277, 241 P.3d
855, 117 Cal.Rptr.3d 359 (Cal., 2010).
40 8 U.S.C. §1621(d).
41 See DeCanas v. Bica, 424 U.S. 351, 358 (1976), superseded by statute,
Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603, 100
Stat. 3359, as recognized in Chamber of Commerce of the United States v.
Whiting, 131 S.Ct. 1968, 1975 (2011).
42 See Plyler v. Doe, 457 U.S. 202, 221 (1982).
43 8 U.S.C. §1641(b).
2015] ACCESS TO HIGHTER EDUCATION 55
commercial license provided by an agency of a State or
local government or by appropriate funds of a State or local
government; and (b) any retirement, welfare, health,
disability, public or assisted housing, postsecondary
education, food assistant, 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 a State or local government or by
appropriated funds of a State or local government.44
However, under 8 U.S.C. §1621(d), states retain the authority to
provide state and local public benefits to “an alien who is not lawfully
present in the United States.”45 Under this provision, five states have passed
legislation allowing undocumented students to qualify for state financial
aid.46 Absent state legislation, these existing federal restrictions laid out in
8 U.S.C. would likely prohibit a state or institution from granting state
funded financial aid to DACA and undocumented students.
IV. State Approaches Increasing Access to Postsecondary
Education for Daca and Undocumented Students
Below is a sampling of a variety of state laws, referendums, and
policies outlining states’ stances on providing in-state tuition to
undocumented students and, more specifically, DACA recipients. Also
included is an overview of a number of state and federal cases interpreting
the constitutionality of state-led initiatives granting in-state tuition rates to
undocumented students.
A. State Legislation and Polices Regarding Eligibility for Resident Tuition
Rates
While only five states currently allow undocumented students to
qualify for state financial aid,47 at least twenty-one states—California,
Colorado, Connecticut, Florida, Hawaii, Illinois, Indiana, Kansas,
Maryland, Michigan, Minnesota, Nebraska, New Jersey, New Mexico,
Oklahoma, Oregon, Rhode Island, Texas, Utah, Virginia, and
Washington—have implemented legislation or other policy initiatives
44 8 U.S.C. §1621(c).
45 8 U.S.C. §1621(d).
46 Undocumented Student Tuition: State Action, NAT’L CONF. STATE
LEGISLATURES (June 12, 2014), http://perma.cc/M29C-B9H3 (listing California,
Minnesota, New Mexico, Texas, and Washington as the only states that currently
allow undocumented students to receive state financial aid).
47 Id.
56 IND. INT’L & COMP. L. REV. [Vol. 25:1
classifying DACA and undocumented students as eligible recipients of instate
tuition rates.48 These policy measures include a wide range of
residency and high school attendance or graduation requirements, and some
states require students to sign an affidavit promising to seek legal
immigration status.49 Some states reserve this benefit for DACA recipients
only, requiring undocumented students to pay out-of-state tuition. Below is
a sampling of recent state policies that qualify undocumented or DACA
students for enrollment and resident tuition rates at state public colleges and
universities.
Virginia: Virginia previously espoused the view that “section 505 of
IIRIRA prohibited states from offering in-state tuition to
undocumented immigrants unless the same is provided
equally to all citizens.”50 However, the state has seen a
number of recent policy developments regarding access to
in-state tuition rates for undocumented students. In
January 2014, Virginia State Senator Donald McEachin
introduced Senate Bill 249, proposing in-state tuition rates
for DACA recipients if they, or their parents, could
demonstrate having filed state taxes for three or more
years.51 However, this bill failed to pass the Senate
Education and Health Committee.52 Recently, Virginia
Attorney General Mark Herring issued a memorandum to
the State Council of Higher Education, the presidents of
Virginia’s colleges and universities, and the chancellors of
the Virginia Community College System, asserting that
DACA recipients are eligible to pay the resident tuition
rate under the existing state law.53 Virginia Code §23-7.4
lays out the resident tuition rate qualifications, focusing
primarily on domiciliary requirements. Like other students
looking to pay in-state tuition rates, DACA students must
demonstrate that they (1) have a fixed place of residence
in Virginia, (2) have maintained a domicile in the state for
48 State Laws and Policies, NAT’L IMMIGRATION LAW CTR. (June 9, 2014),
http://perma.cc/J36A-UN8Y; Letter from Mark R. Herring, Att’y Gen. for the
Commonwealth of Va. (Apr. 29, 2014), available at http://perma.cc/J47A-STNC;
Basic Facts about In-State Tuition for Undocumented Immigrant Students, NAT’L
IMMIGRATION LAW CTR. (June 2014), http://perma.cc/9MWZ-YAXS.
49 Basic Facts, supra note 50.
50 Ruge & Iza, supra note 14, at 272.
51 State Bills on Access to Education for Immigrants, NAT’L IMMIGRATION LAW
CTR. (September 29, 2014), http://perma.cc/W45V-N4FS.
52 S. 249, 2014 Va. Gen. Assemb. Reg. Sess. (Va. 2014), available at
http://perma.cc/6DDA-X533.
53 Herring, supra note, 50.
2015] ACCESS TO HIGHTER EDUCATION 57
at least one year following receipt of DACA, and (3)
intend to remain there indefinitely.54
Florida: On May 2, 2014, the Florida House of Representatives
passed House Bill 851 and Florida Governor Rick Scott
signed the bill into law on June 9, 2014.55 The new
measure requires state colleges, universities, and charter
technical career centers to offer in-state tuition to
“students who are undocumented for federal immigration
purposes” and who: (1) attended a Florida secondary
school at least three years before graduating from a state
high school, (2) apply for admission to a state
postsecondary educational institution within twenty-four
months of high school graduation, and (3) provide that
institution with an official Florida high school transcript.56
Indiana: On July 1, 2011, the Indiana General Assembly enacted
House Bill 1402, which restricts individuals “not lawfully
present in the United States”57 from qualifying for resident
tuition rates at public universities. A separate law, Senate
Enrolled Act 590 (“SEA 590”), went into effect on July 1,
2011, and requires a state agency to verify the eligibility
of an applicant for public benefits.58 SEA 590 states “the
term ‘state or local public benefit’ has the meaning set
forth in 8 U.S.C. 1621” and “includes (1) a postsecondary
education award, including a scholarship, a grant, or
financial aid; and (2) the resident tuition rate (as
determined by the state educational institution).”59 Indiana
Code 24-14-11-1 restricts in-state tuition eligibility to
those lawfully present in the United States. However,
under Senate Bill 207, which passed into law on May 7,
2013, this restriction does not apply to individuals enrolled
in state educational institutions on or before July 1,
2011.60
B. Case Law Addressing In-State Tuition Rate Eligibility
Various state and federal courts have found that offering resident
54 Id.
55H.R. 851, 2014 Leg., Reg. Sess. (Fla. 2014) (enacted), available at
http://perma.cc/8XVR-LFXS.
56 Fla. Stat. § 1009.26(12)(a) (2014), available at http://perma.cc/CCD9-R5BU.
57 Ind. Code § 21-14-11-1(a) (2011) (emphasis added).
58 Ind. Code § 12-32-1-3 (2014).
59 Id.
60 Ind. Code § 12-32-1-5(d)(3).
58 IND. INT’L & COMP. L. REV. [Vol. 25:1
tuition rates to undocumented students does not violate federal law. In Day
v. Sebelius and Martinez v. Regents of the University of California,
plaintiffs challenged laws granting in-state tuition to undocumented
students in Kansas and California, respectively.61 In both cases, the
plaintiffs 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. In
Martinez, the appellate court overturned the lower court’s dismissal, ruling
that the California statute granting in-state tuition to undocumented students
violated federal law. However, in a unanimous decision, the California
Supreme Court reversed the appellate court’s ruling, asserting that since
individuals do not qualify for in-state tuition at a California public college
or university based on residence, but rather, on attendance and graduation
from a state high school, the statute did not violate federal law.62 The U.S.
Supreme Court refused to hear an appeal from this decision.63 As it stands,
there is no law that prohibits states from allowing undocumented or DACA
students to qualify for resident tuition rates.
V. The Continuing Debate Over Access to Higher Education
for “DACAmented” and Undocumented Students
With no federal law in place either providing for or prohibiting
undocumented and DACA students from enrolling in or receiving in-state
tuition for public postsecondary educational institutions,64 state policy
initiatives are in limbo. Efforts by several states to restrict enrollment and
resident tuition rates are being challenged, but the issues remain unresolved.
The following examples illustrate the unsettled nature of these issues.
Georgia: In October 2010, the Board of Regents of the University
System of Georgia (“USGBOR”) adopted Policy 4.1.6,
which states that “[a] person who is not lawfully present in
the United States shall not be eligible for admission to any
University System Institution which, for the two most
recent academic years, did not admit all academically
qualified applicants (except for cases in which applicants
61 Day v. Sebelius, 376 F. Supp. 2d 1022 (D.Kan. 2005); Martinez v. Regents of the
Univ. of Cal., 241 P.3d 855, 859 (Cal. 2010).
62 Josh Keller, California Supreme Court Upholds Law Giving In-State Tuition to
Illegal Immigrants, CHRON. HIGHER EDUC. (Nov. 15, 2010), http://perma.cc/8P2-
PR67.
63 Bill Mears, Supreme Court: State Can Offer Illegal Immigrants Reduced Tuition,
CNN (June 6, 2011), http://perma.cc/R54P-XC7F.
64 See discussion of Plyler, supra Part III.A.
2015] ACCESS TO HIGHTER EDUCATION 59
were rejected for non-academic reasons).”65 According to
the USGBOR policies, DACA students are not recognized
as being lawfully present in the United States and,
consequently, undocumented and DACA students are
ineligible to attend the state’s top-five state universities.66
This policy prompted thirty-nine DACA recipients to file
suit in Dekalb County Superior Court against the
USGBOR.67 The Court ultimately dismissed the suit,
concluding USGBOR qualified for sovereign immunity.68
The Court therefore could not properly rule on the central
issue of whether DACA recipients are “lawfully in [the]
state.”69 The Court noted “[t]he fact that judicial review is
not available to resolve this issue is lamentable.”70 An
appeal of this decision was filed with Georgia’s Supreme
Court in August 2014 and is currently pending.71
Alabama: In 2011, the Alabama legislature passed House Bill 56
into law, which contains a series of prohibitions affecting
the daily lives of the state’s undocumented population.72
The measure included a prohibition on the enrollment of
an “alien who is not lawfully present in the United States”
in any state public postsecondary educational institution.73
The ACLU filed suit challenging the constitutionality of
65 BD. REGENTS OF THE UNIV. SYS. OF GA., POLICY MANUAL § 4.16 (Oct. 29,
2010), available at http://perma.cc/H4VP-YP4E; see also KARA UMANA,
ULTIMATE GUIDE FOR COLLEGE BOUND UNDOCUMENTED GEORGIA STUDENTS 11
(Matt Hicks ed., 2014), available at http://perma.cc/MDX5-ZRHY.
66 Deferred Action for Childhood Arrivals (DACA), GA. STATE UNIV. OFFICE OF
UNDERGRAD. ADMISSION (2014), http://perma.cc/CXM7-BZHG.
67 DACA Recipients and the Right to In-State Tuition: Litigation Commences in
Arizona and Georgia, CATHOLIC LEGAL IMMIGRATION NETWORK, INC. (Aug.
2013), http://perma.cc/Y2UU-SX66.
68 DACA Beneficiary Ga. Coll. Students v. Univ. Sys. of Georgia’s Bd. of Regents,
2014 AILA InfoNet Doc. 14061050 (Super. Ct. Fulton County, Ga June 9, 2014).
69 Id.
70 Id.
71 E-mail from Charles Kuck, Attorney for Plaintiffs, to Author (June 30, 2014) (on
file with the author); See also, Michael A. Olivas, “State and federal cases
involving Higher Education and immigration, 2004- 2014 and all cases citing
Sections 1621/1623 (by current citation),” University of Houston Law Center,
http://www.law.uh.edu/ihelg/documents/Cases2004-
2014cases1621_1623/homepage.asp.
72 H.R. 56, Ala. H. Rep. (Ala. 2011) (enacted), available at http://perma.cc/6F5-
HSJ2 (making it illegal for undocumented residents to engage in business
transactions; negating contracts entered into by unauthorized immigrants; and
making it illegal for unauthorized immigrants to look for work).
73Id.
60 IND. INT’L & COMP. L. REV. [Vol. 25:1
the law, which resulted in a settlement agreement
effectively removing several provisions. Although the bar
on undocumented enrollment remains in effect, Alabama
law permits DACA students to enroll and pay resident
tuition.74
New York: In 2013, legislators in New York proposed Assembly Bill
2463 (“A02463”), which is currently being held for
consideration by the New York Senate Standing
Committee on Higher Education. If passed into law,
A02463 will prohibit the admission of any person who is
not a U.S. citizen, a lawful permanent resident, an alien
lawfully admitted to the United States for a temporary
period of time, or a person authorized to remain in the
United States temporarily under federal law to public
colleges. Moreover, this bill instructs admissions officers
to report any applicants or students “determined to be, or
who [are] under reasonable suspicion of being, in the
United States in violation of federal immigration laws” to
U.S. Immigrations and Customs Enforcement and other
officials. Since this proposed bill would permit “a person
authorized to remain in the United States temporarily
under federal law,” it remains unclear whether A02463
would apply to DACA students who are “lawfully
present” in the United States according to USCIS.75
Arizona: In 2006, Arizona voters approved the legislative ballot
referendum Proposition 300, which amended Arizona
Revised Statute Section 15-1803.76 Under Proposition
300:
a person who is not a citizen of the United States,
who is without lawful immigration status and who
is enrolled as a student at any university under the
74Ala. Code § 16-64-2 (2014); Tuition and State Aid Equity for Undocumented
Students and DACA Grantees, UNITEDDREAM.ORG (May 2014),
http://perma.cc/J6DD-WHC6.
75B. A02463, 2013-14 Reg. Sess. (N.Y. 2013), available at http://perma.cc/YQ7GNKLE.
76S. Con. Res. 1031, 47th Leg., 2d Reg. Sess. (Ariz. 2006), Ariz. Rev. Stat. § 15-
1803(B), available at http://perma.cc/QSP5-A8YH (“In accordance with the illegal
immigration reform and immigrant responsibility act of 1996 (P.L. 104-208; 110
Stat. 3009), a person who was not a citizen or legal resident of the United States or
who is without lawful immigration status is not entitled to classification as an instate
student pursuant to section 15-1802 or entitled to classification as a county
resident pursuant to section 15-1802.01.”).
2015] ACCESS TO HIGHTER EDUCATION 61
jurisdiction of the Arizona Board of Regents or at
any community college under the jurisdiction of a
community college district in [Arizona] is not
entitled to tuition waivers, fee waivers, grants,
scholarship assistance, financial aid, tuition
assistance or any other type of financial assistance
that is subsidized or paid in whole or in part with
state monies.77
Additionally, this proposition requires colleges to report data on
the number of students denied in-state tuition rates “because the
applicant was not a citizen or legal resident of the United States
or was not otherwise lawfully present in the United States.”78
Following the implementations of DACA in August 2012,
Governor Jan Brewer issued Executive Order 2012-06, Re-
Affirming Intent of Arizona Law In Response to the Federal
Government’s Deferred Action Program. The Executive Order
stipulated that access to state and local public benefits is limited
under Arizona Revised Statutes §§ I-501-502 to “persons
demonstrating lawful presence in the United States.”79
Governor Brewer expressed her concern that receipt of DACA
“could result in some unlawfully present aliens inappropriately
gaining access to public benefits contrary to the intent of
Arizona voters and lawmakers who enacted laws expressly
restricting access to taxpayer funded benefits and state
identification.”80 Governor Brewer categorized access to
resident tuition rates as a public benefit and asserted that
DACA recipients were not lawfully present in the United
States.
Despite the executive order, several colleges within the
Maricopa County Community College District permitted
DACA students who presented evidence of valid employment
authorization to pay in-state tuition rates, asserting their work
permits “are an acceptable proof of in-state residency.”81 This
action led Arizona Attorney General Tom Horne to sue
Maricopa County Community College District in June 2013,
asserting that university policies allowing DACA students to
77Id.
78S. Con. Res. 1031, Ariz. Rev. Stat. §15-232(C).
79Office of the Ariz. Governor, Exec. Order No. 2012-06, (Aug. 15, 2012),
available at http://perma.cc/B5QP-457N.
80 Id.
81Mary Beth Faller, In-state Tuition Lawsuit Against Maricopa Colleges to
Proceed, AZ CENTRAL (May 2, 2014), http://perma.cc/AZB4-QPYK.
62 IND. INT’L & COMP. L. REV. [Vol. 25:1
pay in-state tuition rates stood in direct violation of Proposition
300, Executive Order 2012-06, and federal law.82 The suit is
now pending resolution and oral arguments will be heard in the
Maricopa County Superior Court on March 6, 2015.83
The above-referenced policies and statutes demonstrate that, despite
the clear difference between undocumented and DACA students, the
question of how to interpret a grant of DACA in terms of admissions and
in-state tuition eligibility requirements remains unresolved in many states.
VI. CONCLUSION
The implementation of the DACA program offered hope for
DREAMers who have seen the failure of numerous federal legislative
measures that would grant them lawful immigration status in the United
States. Separately, states have implemented a variety of laws and policies in
an attempt to clarify eligibility of undocumented and DACA recipients for
enrollment in postsecondary education and resident tuition rates. This has
led to many unresolved issues confronted by state legislative, judicial, and
academic officials. Final resolution of these questions will provide clarity to
not only thousands of DACA students, but also the universities that they
may attend.
82 DACA Recipients, supra note 69.
83Hearing set for arguments in Arizona Immigrant-tuition case, TIMES UNION,
(Feb. 4, 2014), http://www.timesunion.com/news/article/Hearing-set-for-arguments
-in-Arizona-6061119.php.
Copyright of Indiana International & Comparative Law Review is the property of Indiana
International & Comparative Law Review and its content may not be copied or emailed to
multiple sites or posted to a listserv without the copyright holder’s express written permission.
However, users may print, download, or email articles for individual use.