“When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note… This note was a promise that all men… would be guaranteed the ‘unalienable Rights’ of ‘Life, Liberty and the pursuit of Happiness’” (American Rhetoric, 2001). Those are the words of Martin Luther King, Jr. when segregation was at its highest. And yet, forty-seven years later, this nation still practices inequality on man because it is exactly that pursuit of happiness, the pursuit of the American dream, that undocumented immigrants are restricted from. And often times, education is the key to fulfilling this dream. However, the two thousand mile-long border with the United States, or the voyage across sea is not the only obstacle undocumented immigrants face when trying to obtain an education.
The Supreme Court decision of 1982 founded on the case of Plyler v. Doe is central to one of the obstacles undocumented students face. Plyler v. Doe guaranteed all children free public schooling on the basis of the Fourteenth Amendment Equal Protection Clause under the U.S Constitution, which grants children of this right no matter their race, gender or national origin (Contreras, 2009). Thus Plyler v. Doe enforced that all children, even undocumented children, are granted free public schooling. However, the word “children” applies only to those in grades K–12. Thus access to higher education remains constrained by federal laws that prevent undocumented students from receiving financial benefits to attend college (Drachman, 2006).
Title IV of the Higher Education Act of 1965 is one federal law that restricts undocumented students from pursuing a higher education. Title IV forbids undocumented students from receiving federal aid for postsecondary education (Drachman, 2006). Although there is no law excluding undocumented students from attending college, and some states that grant students in-state tuition, which will be studied more in-depth later, some undocumented immigrants are forced to turn down a college education because of the lack of federal financial aid. Federal aid includes grants, work-study programs and loan programs (Educators for Fair Consideration, 2009). Thus the lack of federal financial assistance presents a barrier for undocumented students to pursue a higher education. For instance, the approximate cost of full-time enrollment in college ranges from $15,000 – $40,000 per year, all depending on whether the institution is public or private (Educators for Fair Consideration, 2009). However, the College Board states that forty percent of undocumented children live below the federal poverty line and the average income of undocumented immigrant families is also forty percent lower than that of native-born families or legal immigrant families (Gonzales, 2009). Thus affording a college education becomes unlikely.
As previously stated, there are some states that grant undocumented students federal financial aid. In June 2001, Texas became the first state to enact legislation allowing in-state tuition for undocumented students. Since then, eight other states (California, Utah, New York, Illinois, Oklahoma, Washington, Kansas and New Mexico) have passed similar laws. However, only three of those states (Texas, Oklahoma, and New Mexico) offer federal financial aid to undocumented students (Drachman, 2006).
States that provide in-state tution to undocumented students. Source: http://www.aascu.org/policy_matters/images/aug08_map.jpg
However, the argument proposed against granting undocumented students financial aid is that United States residents/citizens pay taxes, whereas undocumented immigrants do not. Thus why should those who do not pay taxes benefit from them? Although many assume otherwise, a considerable portion of undocumented immigrants who work in the United States do pay both state and federal taxes, thus countering the argument that undocumented students should not be eligible to attend a public university with financial assistance because they do not help subsidize it (Drachman, 2006). Another myth to debunk is that one needs a social security number to file taxes. However, such is not the case. Undocumented immigrants may pay taxes through a tax identification number (an alternative to the Social Security number), which is offered by the IRS so it can collect income tax from foreign workers (Loller, 2008).
Another argument against granting undocumented students in-state tuition is that it violates the importance of the basis of residence of Provision 505 of the Illegal Reform and Immigrant Responsibility Act of 1996 (IIRIRA):
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 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 (Salsbury, 2004)
However, by granting in-state tuition on criteria other than residence, the states that grant undocumented students in-state tuition do not violate the “basis of residence” (Salsbury, 2004). Such criteria include high school completion in the state, residence in the state for at least three years as of the date of high school graduation, applying to a higher education institution, and in states such as California, Utah, and Texas, the signing of an affidavit stating the intent to file an application to become a permanent resident at the earliest possible opportunity (Salsbury, 2004). Thus “the actual basis for awarding undocumented students in-state tuition is not solely based on domicile,” (Salsbury, 2004).
Moreover, University of Houston law professor, Michael Olivas, also affirms that granting in-state tuition to undocumented students does not violate provision Section 505. Again, Section 505 limits the eligibility of undocumented students for postsecondary benefits unless citizens and nationals of the United States are also eligible for such benefits (Salsbury, 2004). Olivas argues that the word “unless” means that states may pass residency laws for undocumented students. Olivas states that, “the only way to read this convoluted language is: State A cannot give any more consideration to an undocumented student than to a nonresident student from State B.” Thus the “benefit” is the right to be considered for residency status, while the “consideration” is the amount of time a student must live in a state to qualify for the in-state rate. Therefore, as long as the state law requires a longer durational residency for the undocumented student than for citizens and nationals, the grant of in-state tuition does not violate Section 505.
In addition to the arguments against granting undocumented students in-state tuition and federal financial aid, those undocumented students who do obtain enough money to attend college face an issue post graduation. That issue is the lack of documentation to legally obtain a job in the United States. The Los Angeles Times shows an example of this issue: Miguel, a UCLA graduate and immigrant from Puebla, Mexico. After taking fifteen advanced placement classes in high school, Miguel graduated from UCLA with a double major in English and Chicano Studies, along with a B-plus grade point average. But for all his success, obtaining employment after college will result in difficulty because of his legal status. Like many other undocumented students, Miguel chooses to lengthen his studies to stay away from an uncertain future because of the lack of documentation to legally work in the United States, or work minimal-paying jobs (Holland, 2009). Miguel says, “When you’re in school you have a place in society, you’re a university student. When you graduate, you’re just an immigrant again,” (Holland, 2009). Thus this brings up a question of why do some say immigrants take jobs away from U.S. residents and citizens. Do they not have a right to do so, especially when they have earned a college degree?
According to Title VII of the Civil Rights Act of 1964, the federal law protects employees from discrimination based upon an employee’s (or applicant’s) race, color, religion, sex, or national origin (Equal Employment Opportunity Commission). Thus on the basis of the United States principles, is the act of denying undocumented immigrants jobs not violating the principle of not discriminating based on national origin? Moreover, allowing undocumented students into the job pool may be more beneficial than many Americans believe. According to the College Board, there is no debate in that the investment in undocumented children’s K-12 education “pays relatively few economic dividends as long as they are limited to their ability to continue onto college and obtain a higher-skilled jobs that require more than a high school diploma“ (College Board, 2009). Accordingly, research shows that when given an opportunity to legalize their status, undocumented immigrants experience significant upward mobility through education, training, and later, better paying jobs. Thus a great amount of legalized immigrants pay more in taxes, have more money to spend and invest (The College Board, 2009). Therefore, it is likely that if undocumented students were granted legal status, they would not only improve their own situation, but make greater contributions to the U.S. economy as well.
In all, state efforts to grant undocumented students in-state tuition and federal financial assistance are only a fraction of a solution to a much bigger problem. The removal of educational barriers for undocumented students is not absolute without work authorization and an immigration reform. These kids are our future, seeking a better life through education. They are not criminals, because remember, undocumented students can attend college, thus no crime is committed, and only a criminal is one whose rights can, and should be, taken away. These students also represent diversity, knowledge, and above all, determination to succeed.