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Plyer v Doe

Due to the landmark 1982 Plyler v. Doe U.S. Supreme Court decision, states are required to provide all students with K-12 public education, regardless of students' immigration status. Although the court did not declare education a fundamental right, it was determined that a "public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage; the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological well-being of the individual, and poses an obstacle to individual achievement."

The Supreme Court’s decision, however, does not apply to education beyond high school. In addition, Section 505 of the 1996 Illegal Immigration Reform and Immigrant 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 (or a political subdivision) 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.”
Any child, regardless of immigration status, is eligible for free primary and secondary education under a 1982 Supreme Court decision
Plyler v. Doe
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, Wisconsin, the most recent in Connecticut, which went into effect in July 2011.

In 2008, Oklahoma ended its support for in-state tuition for students without lawful presence. In 2011, Wisconsin also repealed its in-state tuition for students without lawful presence.

And in 2012, Massachusetts used Rhode Island as a model and passed a policy through a Joint Committee on Higher Education, to allow in-state tuition.

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; Wisconsin (A75) in 2009; Maryland (SB 167) and Connecticut (HB 6390) in 2011. The state laws permitted these students to become eligible for instate 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. In July, 2011, California enacted legislation permitting unauthorized immigrant students to receive financial aid and scholarships (A130).
In September, 2011, Rhode Island’s Board of Governors for Higher Education approved policy to allow unauthorized students to pay in-state tuition at public colleges. 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 the court ruling.