IN-STATE TUITION FOR UNDOCUMENTED IMMIGRANTS 1

Law Commentary: In-State Tuition For Undocumented Immigrants

James Gilbert
Georgia Southern University

EDLD 8431
Dr. Maura Copeland
November 8, 2015

One of the most polarizing topics of today is immigration reform. This controversial issues

has complexities that have been disputed for years. Education in general and even higher

education has not escaped the grasps of this controversial issue. One particular issue that has

been of great interest in the most recent years is whether undocumented immigrants should be

able to receive in-state tuition rates. Alfred noted (as cited in Yates, 2004) there is an estimated

1.5 million undocumented aliens in the public educations system with between 50 and 60

thousand graduating from our high schools each year. Yates (2004) noted that The Personal

Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) precluded

undocumented immigrants from receiving federal financial aid and student loans and The Illegal

Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA) prohibits states from

offering illegal immigrants the lower tuition rate offered to state residents. As a result,

undocumented immigrant would be forced to both fund their education themselves and to pay the
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higher out-of-state tuition rates which could range from two to three times the in-state rate which

would severely limit the number of undocumented immigrants pursuing higher education.
There are many who see this as being unlawful and at the very least unfair. To better

understand their position, it is important to examine some case history upon which they believe

legal precedent is establish in support of their position. First, as noted in Alexander & Alexander

(2011), Brown v. Board of Education of Topeka, granted equal protection and equal access to

public education regardless of race. Equal access is an important factor in the argument for equal

education rights for undocumented immigrants.

Perhaps, the most significant case which often serves as a foundation on this issue is Plyler v.

Doe. Justice Brennan, as referenced by Yates (2004) indicated in the writing of the majority

decision of this case that a Texas statute which barred undocumented immigrants from free

primary and secondary public education violated the Equal Protection Clause which includes all

residents and extends to undocumented immigrants.

Another significant case is Toll v. Moreno. This case as cited in Alexander & Alexander

(2011) involved a challenge to the University of Marylands policy which precludes

nonimmigrant residents from establishing residency. Students whose parents were admitted into

the U.S. as employees and officers of international organizations were not allowed to establish

residency and therefore unable to receive in-state tuition rates. The courts found this to

unconstitutional because it violated the Supremacy Clause. This ruling was significant because it

introduced the Supremacy Clause in the area of in-state tuition. In response to Toll, the state of

California eliminated the requirement that alien students seeking resident tuition rates needed to

prove legal permanent resident status (Yates, 2004).

Yates (2004) highlighted two cases that are significant. The first is the 1984 case of Leticia A

v. Board Of Regents of the University of California in which five undocumented immigrants

brought suit after being admitted to the school and later informed that they would be required to
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pay the non-resident tuition fees. The Alameda County Superior Court ruled in favor of students

and held that the policy to determine residency based on terms other than those applied to United

States citizens was unconstitutional. However, it was reversed by Regents of the University of

California v. Bradford in 1990 which held that undocumented aliens are not eligible for

residency and in-state tuition rates.

Furthermore, as noted by Jr, J. L. (2014), with the passing of IIRIRA which in section 505

states that an alien who is not lawfully present in the United States shall not be eligible for

postsecondary education benefits on the basis of residence unless a citizen or national is eligible

for the same benefit regardless of residence. Thus state had two options to deny undocumented

immigrants in-state tuition or pay the penalty of offering the discount to residents of other states

who previously went high school and graduated in the state.

In an attempt to bypass the federal law, several states such as California have passed statutes

which as Colvin (2010) indicated involves qualifying individuals who attended a school in the

state for specific number of years; have graduated or received the equivalent of a high school

degree; and have signed an affidavit stating that they have applied for legal immigration status.
Several court cases have been implemented to challenge these types of statutes. One such case

is highlighted in a 2010 report in Congressional Digest. The case. Day v. Sebelius, involved a

challenge to the legality of a Kansas State law that makes unauthorized aliens eligible for in-

State tuition. Although rejecting six of seven claims on the grounds that the plaintiffs lacked

standing, the court found that the plaintiffs did have standing to sue with regard to their claim

that the Kansas statute violated Section 505 of IIRIRA, but found that the plaintiffs did not have

a private right to sue. The district court's dismissal was affirmed by a Federal appeals court, and

the Supreme Court declined to consider an appeal.

Perhaps the most notable case is that of Martinez v. Regents of the University of California.

Colvin (2010) outlined details of this case noting that a group of US citizens who were not
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residents of California filed suit that the California Education Code section 68130.5 which

allowed provision for illegal immigrants to pay in-state tuition was in direct contradiction to

section 505 of IIRIRA. In 2006 the trial court ruled in favor of the defendants and in 2008 the

Court of Appeals for the Third District held that the California law did violate federal law. The

case was later heard in the California Supreme Court and upheld by the California Supreme

Court in 2010 and an appeal was declined for review by the U.S. Supreme Court in 2011.
In light of the outcomes of cases such as Martinez, two things are almost certain. Many states

will draft legislation similar to California and others which allows for the in-state tuition

provisions for undocumented immigrants and individuals will continue to bring suits challenging

those legislations. This is likely to continue until some immigration reform is passed at the

federal level. Many proponent of providing in-state tuition to undocumented immigrants hope

that the Development, Relief, and Education for Alien Minors (DREAM) Act will one day pass.

The Dream Act seeks to remove certain financial hurdles and repeal section 505 of the IIRIRA

(Colvin, 2010), but this legislation has yet to passed through congress.

References
Alexander & Alexander (2011), Kern, Higher Education Law: Policy and Perspectives, New
York: Routledge.
Colvin, K. W. (2010). IN-STATE TUITION AND ILLEGAL IMMIGRANTS: AN ANALYSIS
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OF MARTINEZ V. REGENTS OF THE UNIVERSITY OF CALIFORNIA. Brigham

Young University Education & Law Journal, (2), 391.

Education Benefits for Undocumented Immigrants. (2010). Congressional Digest, 89(9), 263-
288.
Jr, J. L. (2014). More Thanjust a DREAM: The Legal and Practical Implications of a North
Carolina DREAM Act. Campbell Law Review, 36(2), 359.
Yates, L. a. (2004). Plyler v. Doe and the Rights of Undocumented Immigrants to Higher
Education: Should Undocumented Students Be Eligible for In-State College Tuition

Rates?. Washington University Law Quarterly, 82(2), 585-609.