They Can't Go Home Again: Undocumented Aliens and Access to U.S. Higher Education NAFSA National Conference San Diego, California May 31, 2000 By Ellen Badger (firstname.lastname@example.org) Director, International Student and Scholar Services Binghamton University (SUNY) Binghamton, NY Bob Ericksen (email@example.com) Director, International Education and Exchange California State University Fullerton and Stephen Yale-Loehr (firstname.lastname@example.org) Co-author, Immigration Law and Procedure Adjunct Professor, Cornell Law School Of Counsel, True, Walsh & Miller (http://www.twmlaw.com/) Ithaca, NY
Introduction: [Ellen introduces the presenters, Steve provides disclaimer that none of us is providing legal advice, then to Steve to define terms]Steve: Undocumented alien (aka illegal alien): a foreign national who: (1) entered the United States without inspection or with fraudulent documents; or (2) entered legally as a nonimmigrant but then violated status and then remained in the United States without authorization. So this term also applies to overstays.
Steve mentions the materials we relied on to research this topic; Ellen explains the hand outs.
Steve : Note that there are many ways to look at each of the following questions: immigration law; education law; Federal Family Educational Rights and Privacy Act (FERPA); ethics, institutional policies, etc. The trick is balancing all these considerations in an area that has some but not all real answers. Our job here is to offer guidance in maintaining that delicate balance between the quasi-enforcement role required by federal regulations and the helping role basic to the relationship between international educators and students.
Bob: Offers brief introductory remarks to L.A. Times article, reads selected segments aloud.
Steve: With that as background, on to specific questions (and hopefully some answers):
Bob: Does federal law prohibit undocumented aliens
from attending public colleges or universities?
A: Steve: No. Plyler v. Doe, 457 U.S. 202 (1982), held that it was illegal for a state to deny school-aged undocumented aliens the right to a free education. The Supreme Court relied on the equal protection doctrine, which prohibits a state or the federal government from denying equal protection of the laws to any "person" (not just U.S. citizens).
No federal law has overruled Plyler. The closest provision is section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which prohibits states from providing a postsecondary education benefit to an alien not lawfully present in the United States on the basis of the alien's residence in their state unless the state would also provide the same benefit to a citizen or national residing in another state. Translated into plain English, as best as I can tell this provision bars public colleges from charging undocumented aliens the in-state tuition rate, since they would be treated more favorably than out-of-state residents who are U.S. citizens.
This provision applies to benefits provided on or after July 1, 1998. This only addresses educational benefits, not admissions. We will discuss section 505 in more detail later.
Bob: In spite of efforts in California to bar undocumented students from attending our pubic colleges and universities, undocumented students are still permitted to do so. Our state education code allows us only to use admissions requirements as criteria for enrolling students. On a practical level, however, the classification of undocumented students as non-residents for fee purposes, essentially closes the doors to a public education for nearly all undocumented students.
Ellen: Does state law prohibit undocumented aliens
from attending public colleges or universities?
A: Steve: No. California is the only state that tried this so far, in Proposition 187. Among other things, section 8 of that proposition would have denied postsecondary education to undocumented aliens. But a federal court struck down Proposition 187, holding that the state law contradicted federal law, and thus was “preempted” by federal law. The supremacy clause of the constitution states that federal law is the supreme law of the land. If Congress has effectively regulated in an area, states cannot enact laws that deviate from the federal one.
A. Bob: It is precisely as Steve says.
Ellen: Assuming federal or state laws do not prohibit
undocumented aliens from attending public colleges or
universities, can public colleges or universities
nevertheless institute a policy barring undocumented aliens
A: Steve: Under the preemption doctrine, probably not. See the Proposition 187 case mentioned above
Bob: I would like to comment on the challenges faced by public university officials in California on this issue. When I began researching this issue, I expected to hear a clear and consistent statement of university policy on this matter. I learned it is a lot more complex than that. It was very difficult to get clear and accurate “historical” information about the evolution of the policy. It is impossible to find anything in any CSU publication or website which addresses this. I can only attribute this to the volatile political nature of the issue. As one official told me off the record, “The public can accept the enrollment of foreign students when they learn that they pay high non-resident fees. However, the public cannot stomach the idea that the university is enrolling undocumented “illegal” students, even at inflated fees.” No one was able to document for me the number of students enrolled on the campus who would be considered undocumented. And, there has probably been a deliberate (and probably wise) decision not to maintain records on undocumented students.
Bottom line, undocumented students are treated as non-resident students. Essentially, this has accomplished the goal of the proponents of Proposition 187 because the financial burden posed by non-resident fees makes it impossible for undocumented students to afford attendance at a public college or university.
Ellen: Can private institutions legally prohibit
undocumented aliens from enrolling?
A: Steve: Theoretically yes. But most private institutions nevertheless are subject in some way to state or federal law because they receive state or federal funding, e.g., for financial aid purposes. The question is whether private institutions could become subject to a state or federal challenge if they prohibit undocumented students from enrolling.
Ellen: We must also consider the equal protection provision of the fourteenth amendment, Title VI of the Civil Rights Act of 1964, and your state’s Human Rights Law, which may also apply. It could be argued that even private institutions, if they receive federal funds for financial aid for example, must comply with the laws mentioned here. To comply with federal and state laws, public institutions must provide equal access in all of our programs and services without regard to race, color, sex, religion, age, disability, marital status, and in some cases sexual orientation or national origin. If you are employed at a private school, you should ask legal counsel to determine whether your private school is subject to any of these laws. Moreover, even if it is, you have to decide whether prohibiting undocumented aliens is discriminating on the basis of national origin.
Steve: As a purely legal matter, barring all undocumented aliens from attending your school may be considered alienage discrimination, which is slightly different from national origin discrimination. If I refuse to hire Mexican-Americans to work at my factory, that's national origin discrimination. If I refuse to hire any aliens to work at my factory (not just Mexicans), that is alienage discrimination. Title VII of the Civil Rights Act of 1964 only prohibits national origin discrimination, not alienage discrimination. I don't know whether or how courts have interpreted Title IX on this issue.
Ellen: If an institution has a policy barring admission based on immigration status or lack thereof, that policy should be brought before legal counsel for review.
Q. Bob: Are undocumented aliens entitled to resident tuition benefits at public colleges and universities?
A: Steve: Yes and no. As mentioned above, IIRIRA section 505 provides that no state shall provide a postsecondary education benefit (including in-state tuition) to an alien not lawfully present in the United States on the basis of the alien's residence in their state unless the state would also provide the same benefit to a citizen or national residing in another state. This provision applies to benefits provided on or after July 1, 1998.
There are no regulations implementing this provision, even though it technically took effect July 1, 1998. Thus, we do not know whether the term "an alien not lawfully present" is the same, for example, as "unlawful presence" under INA section 212(a)(9)(B). Or it could mean anyone out of status. And we will have to wait until regulations to know whether the INS will first determine whether someone is not lawfully present, or whether school financial aid administrators are supposed to make that determination on their own.
For colleges in the NY SUNY system, the SUNY Administrative Procedures Manual item 010.1, sets forth the SUNY policy on establishing residency for tuition purposes. The SUNY policy is probably like many state university policies: It says that a person whose domicile has been in New York State for 12 months or longer may qualify for in-state tuition as a NY resident. The policy distinguishes between residency and domicile. A person may have many residences but only one domicile. A domicile is a fixed permanent home to which a person intends to return. Non-immigrants admitted to the United States in categories that prohibit them from establishing U.S. residence are not eligible for in-state tuition. This is most non-immigrants, but SUNY does make exceptions for A, E, G, I, and L status students who can prove residence in New York.
Section VII of the SUNY policy was updated in June 1998 to reflect IIRIRA section 505. Until that time undocumented aliens could qualify for in-state tuition, although many SUNY campuses did not permit it. No more. Section VII now states that "students who are unable to present valid documentation of their alien status are not eligible for in-state tuition rates." The section basically paraphrases IIRIRA section 505.
Bob: Undocumented students are generally from low-income families. If I could tell you the number of admissions counselors who have shared with me the stories of students and their parents crying in their offices- students who have lived in the USA most of their lives, many of whom are outstanding students, some even valedictorians of their high school classes. Their educational opportunities cease or shrink dramatically at completion of public high schools.
These students have few advocates, and, regrettably, I understand why. To bring attention to an unsavory issue may only feed the xenophobic climate that still exists today. On the other hand, how difficult it is to ignore an issue that impacts young people with so very much unrealized potential. The economy of California is roaring along……I wonder if the public mood is beginning to change.
Q. Steve: I have a question for you, Ellen. The City University of New York (CUNY) has a policy of granting undocumented aliens in-state tuition rates. Has CUNY changed that policy in light of IIRIRA section 505?
A: Ellen: Not at this time. I checked with Alan Sabal from CUNY and he informed me that the CUNY policy of granting in-state tuition to out of status aliens who can prove NYS residency is still in effect. Alan indicated that until INS publishes regulations implementing section 505 of IIRIRA, they will still go this route.
Steve: It is unclear whether IIRIRA section 505 is unconstitutional. Even before IIRIRA section 505, a California appellate court ruled in 1990 that the University of California could legally discriminate against undocumented aliens as to tuition rates. The court distinguished between a ban on admitting undocumented aliens, and simply forbidding them to be eligible for in-state tuition. Moreover, the preemption doctrine discussed above doesn’t apply here, because the federal government itself enacted section 505, not a state government.
Bob: The history of this is quite interesting in California. In the early 1980’s a group of undocumented students in Alameda County, CA challenged the refusal by the CSU and UC systems to recognize them as Ca. residents. In 1985, a judge ruled that differentiating between citizens and undocumented students for tuition purposes violated the equal treatment clause of the Ca. constitution. Leticia A. v. Board of Regents, No. 588-982-5. According to the Leticia A court, alien status does not affect residency status (except of course, perhaps paradoxically, for legal non-immigrants such as F-1 students). Our international students noticed this immediately and often commented on what they saw was inequitable treatment. Enter illegally, pay resident fees. Enter legally, pay non-resident fees.
By the way, to get an idea of resident vs. non-resident fees; residents pay approximately $1000 per semester for all their fees, when enrolled as FT students. Non-residents pay this same basic fee, but, in addition, pay $246 per unit of coursework.
In 1990, a Los Angeles Superior court judge overruled the “Leticia A” case, as it came to be known. Regents of University of California v. Superior Court, 225 Cal. App. 3d 972. As Steve mentioned, this “Bradford decision,” as it became known because of the person who brought the case, denied non-eligible, non-citizens California residency for tuition purposes. The decision prompted the Univ. of CA, the Community College System, and the Ca. Student Aid commission to deny state financial aid, and I believe, residency classification, to this population. Since the CSU was not a defendant in the Bradford case, the Chancellor’s office decided to continue granting residency and state aid to qualifying non-eligible, non-citizens based upon the Leticia A decision.
The CSU System was subsequently sued in a taxpayer-initiated suit known as the "AAW Case" in which they were seeking to have the Bradford decision imposed on the CSU. They were successful and the CSU began charging undocumented students non-resident fees in the mid-1990s.
A number of efforts were made were made to counter this decision, including a legislative effort known as the Polanco bill. Then Governor Pete Wilson vetoed the Polanco bill.
The curious “loophole” at least in the CSU is that the student’s residency status is determined by the parent if she or he is under 19 at the time of admission. Therefore, an undocumented student, under 19, newly admitted, whose parent can establish Ca. residency will be able to be admitted as a resident student. This option, as you could imagine, is available to few students who need it.
Another curious fact.
One official shared with me that due to the timing of
the change of residency eligibility requirements, this
year’s graduating seniors will be the last group which
will include undocumented students who benefited from being
classified as residents.
Now these students will face a new set of challenges
as they enter the workforce for professional positions.
They do not have the appropriate documentation to be
Q. Ellen: Can having undocumented aliens enrolled at my campus jeopardize my campus' authorization to issue I-20s?
A: Steve: Not as a legal matter. The INS regulations at 8 C.F.R. 214.3(g)(1) require an approved school to keep records containing specific information and documents relating to each F-1 and M-1 student to whom it has issued an I-20 form. No such reporting requirement exists for undocumented students. INS regulations at 8 C.F.R. section 214.4(a) allow the INS to withdraw a school's approval to issue I-20s for a variety of reasons. But none of those reasons relate to having undocumented aliens on campus.
IIRIRA section 507 requires states and higher education institutions to transmit to the INS copies of documents they accept from individuals verifying the individuals' citizenship or alienage status, or information from such documents. But this is only for applicants for post-secondary financial assistance. It does not concern enrollment issues, so it's not really relevant to this question. Moreover, like section 505, there are no regulations implementing section 507 as far as I know.
Bob: The code
of student conduct at a university explicitly requires
students to abide by federal and state laws.
When an international admissions officer of the
university knowingly admits a student who is apparently in
violation of federal law by being illegally in the United
States, or when an advisor learns about this apparent
illegal condition, shall/should the admissions officer or
adviser inform the dean of students or other appropriate
university authority of the apparent breach of the code of
A: Steve: As a legal matter, it depends on whether the DSO must notify the college of the apparent breach. One question here is whether the code of student conduct requires college administrators to report breaches of the code. I doubt it.
An analogy here. If I am a student and run a stop sign at my university, I violate state law. Do I have a duty to turn myself in? Does another student have a duty to turn me in if she sees me run the stop sign? If the DSO sees an international student run a stop sign, does he/she have a duty to report the student for violating the code of student conduct? I know this hypo seems silly, but it does point out the issue. If the hypo is more serious, such as learning that a student at school is undocumented, do/should the answers change? I don't know; I am just thinking out loud here.
Note also that DSOs never really "know" an international student's immigration status. The student might be applying for asylum or TPS or some other status that will make the student authorized to remain in the US. Is it the DSO's duty to investigate?
Ellen: One also has to consider university policy. The purpose of including a statement in student codes of conduct that students must abide by federal and state laws was not to deputize the entire university staff to be on the look-out for transgressors. Instead, it provides a means for campuses to respond to egregious behavior that may pose a threat to the health and safety of the campus community. If this question is asked in the context of knowing that a student has no legal status but is enrolled, then we need to consider what adverse impact, if any, this student's presence has on the institution. Will the institution lose federal or state aid by enrolling such a person? No. Will the institution lose the right to enroll F-1 or J-1 students and issue appropriate visa documents? No. Therefore, in my view there is no need to report the student.
Bob: The view of our college admissions office is that it is strictly a matter of determining to whom the benefit of being classified as a resident belongs to. There is a one-page residency questionnaire. If anything on this questionnaire alerts the staff to doubts about eligibility, the individual will be asked to provide additional documentation. Students have the right to appeal residency determination decisions to the Office of Legal Counsel of the CSU.
Ellen: If I
learn that an undocumented alien is employed at my
institution, do I have a responsibility to contact the
campus office employing that student?
A: Steve: the legal question is whether a DSO, as an employee of the school, has an obligation to let his or her employer know that someone may not be authorized to work. I don't think the INS regulations require an employee to tell their employer anything. 8 C.F.R. Part 274A is silent on this issue.
Moreover, is there a FERPA (Federal Family Educational Rights and Privacy Act) issue here? I don't know much about FERPA, but Sandra Casey's article states that FERPA generally prohibits disclosure to third parties of any personally identifiable information from a student's records without student consent. 20 U.S.C. 1232g. Is that relevant here? But here maybe FERPA does not apply? What do you think, Ellen?
Ellen: It's an excellent question, because often there's confusion regarding where FERPA begins and ends. FERPA was designed to do three things: (1) give students access to their educational records; (2) give students the ability to challenge information in their educational records; and (3) allow students to control access to their educational records by third parties. Excluding medical records, which are considered separate from educational records, we need to count our "parties." The student is the FIRST party, the educational institution is the SECOND party, and the THIRD party would be anyone else. Thus, within an institution, information well beyond what we refer to as "directory" information can be shared among staff if there is a legitimate educational interest, or a "need to know" by authorized university personnel.
While nothing in INS regulations requires me to inform an office on campus if I learn that someone not eligible to work is employed there, there is another issue. As an employee of my institution, I would feel obligated to let the appropriate office know if they were employing someone who, if the employment came to the attention of the INS, might subject my employer to civil penalties. If it came to light later that I had known of the employment, yet did nothing to warn the appropriate office to seek valid proof of employment eligibility, what would be MY defense to my employer?
So, I would return to an earlier statement I made regarding "adverse impact." If I am aware that a student may be employed illegally on campus, what could be the adverse impact to my institution if I said nothing? Well, there are civil penalties that can be imposed on an employer who hires individuals who are not eligible to work. If a DSO becomes aware that a student may be employed illegally on campus, then there is the potential of an adverse impact to the institution if the DSO does nothing. Many INS offices use the definition of “employer” as defined in 8 CFR 274a.1 to mean anyone affiliated with the college campus. Thus, if someone at the college had constructive knowledge of potential ineligibility for employment, the only way the institution could defend itself would be to be sure that the applicant had properly completed the I-9 form. Thus, the employer would have a “good faith” defense unless the government could show that the employer had “constructive knowledge” of illegal employment. So, in this instance, the DSO should contact the appropriate campus payroll office, ask that the I-9 form be re-checked, and, if necessary, have the student come in and complete a new one with new evidence. The student should always be given the opportunity to refute the claim of illegal employment by presenting evidence of work authorization.
Steve: But what about your ethical duty to the student, Ellen? What is that ethical duty, and how does it apply here? The NAFSA Code of Ethics says, among other things, that "members shall maintain the confidentiality, integrity, and security . . . of all communications with students, [and] secure permission of the student or scholar before sharing information with others inside or outside the organization, unless disclosure is authorized by law or institutional policy." (Emphasis added.) What if there is no formal institutional policy, but you want to let others in your school know that a student is working without authorization? Would doing so violate the NAFSA code of ethics?
Bob: It’s a good question, Steve, and one that Ellen referred to the NAFSA Committee on Ethical Practice. I sit on the Committee. We wrangled with this issue for awhile at the end of our deliberations at our January meetings in Washington. It was interesting to see the responses. My observation is that our response is the way most of us respond to ethical issues. First comes the “gut” reaction. On that one, we were quite split. Several people responded by saying “no way” would I inform other university officials. That’s privileged information! Several others gave quite the opposite reaction, “Well, it’s my obligation as a school official. I’m not accusing anyone of a crime; I’m simply informing an office that the individual student MAY not be eligible for the benefit of working on campus. Our campus can be fined huge sums of money for employing students who are not eligible to work. I would definitely report my concerns.”
Then, after we had calmed down, we returned to our guide, the Code of Ethics. Unfortunately, as is often the case, the Code does not give us precise answers. Section 3 of the code tells us that we are to “understand and protect the civil and human rights of all individuals . . . and not to discriminate on the basis of immigration status.” It also tells us to “maintain the confidentiality, integrity, and security of student records and of all communications with students. Secure permission of the student or scholar before sharing information with others inside or outside the organization, unless disclosure is authorized by law or institutional policy, or mandated by previous arrangement.”
The last item made it impossible for us to make a ruling on this issue. The Committee on Ethical Practice does not give legal advice. We only rule on ethical issues. Depending on one’s institution and differing legal interpretations, the last item could constitute permission for the school official to report the on campus employment of a suspected undocumented student.
Ethics will always remain a grey area, that, often, is interpreted by the individual NAFSAn after some careful contemplation, reading and re-reading of the Code of ethics, and consultation with respected colleagues. Section one of the code is the section I refer to the most when people are wrangling with legal issues:
“NAFSA members have a responsibility to balance the wants, needs, and requirements of program participants, institutional policies, laws, and sponsors, having as their ultimate concern the long term well being of international educational exchange participants and programs.”
Q. Ellen: Do I have a reporting requirement to INS if I learn that an undocumented alien is enrolled at my school?
A: Steve: As mentioned above, 8 C.F.R. section 214.3(g)(1) requires schools to monitor students in nonimmigrant status, such as Fs and Ms, or risk losing certification to admit them. But there is no such requirement for undocumented aliens.
Bob: If I learn
that an undocumented alien student is receiving federal or
state financial aid, do I have a responsibility to contact
my campus financial aid office?
A: Steve: The easy part of this answer is that no INS regulation requires me to report this, at least yet. IIRIRA section 507 requires states and higher education institutions to transmit to the INS copies of documents they accept from individuals verifying the individuals' citizenship or alienage status, or information from such documents. Although the statute itself does not specify the purpose for which this documentation is to be used, the conference report makes clear that it is for applicants for post-secondary financial assistance. Like section 505, there are no regulations implementing section 507 as far as I know. So one legal answer to this question is that although maybe the financial aid office has a duty to report to the INS (after regulations are published), I as a DSO have no duty to tell my financial aid office if I know that an undocumented alien student is receiving federal or state financial aid.
Steve: General background: under title IV of the Higher Education Act of 1965, only U.S. citizens and eligible noncitizens can receive federal student financial aid. F and J students and scholars, for example, cannot receive federal student financial aid. Neither can undocumented students.
The Department of Education uses two screening techniques to determine which financial aid applicants are ineligible. First, it checks all financial aid applicants for U.S. citizenship, using Social Security Administration records. Second, for applicants who are not U.S. citizens, the Department of Education checks INS records to determine whether the applicant meets eligibility criteria. But I saw nothing in the GAO report that requires any employee to report to the financial aid office that a student is illegally receiving financial aid.
Ellen: While there may be no legal requirement to contact the financial aid office, I return again to the issue of adverse impact. If a student falsifies visa information on a financial aid form to obtain federal or state financial aid, receives it, and I learn of it but do nothing, there is potential adverse impact to my institution. Should there be in an audit, and the matter comes to light, I have exposed my institution to potential financial liability, in that we would be required to pay the money back from our own budgets to the appropriate government entity. As with the example of the discovery that an undocumented alien is working on campus, you should give the student the opportunity to refute the claim by presenting evidence of eligibility.
Ellen: Also consider the May 26, 1999 Federal Register, INS Notice and Proposed Rule on "Field Guidance on Deportability and Admissibility on Public Charge Grounds." There is a section that defines what benefits may be considered for public charge purposes and what benefits can't. The section of benefits that cannot be considered for public charge purposes includes "Educational Assistance, including benefits under the Head Start Act and aid for elementary, secondary , or higher education." It now gives aliens the right to many benefits they did not have before, without having to fear becoming a public charge. Those benefits include Medicaid, Food Stamps, and many others. However, the information does note that not all categories of aliens are eligible to receive all types of benefits. So, the rule did not define what categories of aliens can receive benefits. Instead, it defined what sorts of public benefits are part of and are not part of the public charge definition.
Steve: Yes, that INS proposed rule is nice. But the general rule is that undocumented aliens are not entitled to most public benefits, except emergency aid. So that new INS rule doesn't answer our question. It still doesn't go to the question of whether a DSO has a duty to report a student who is illegally receiving financial aid. As I mentioned before, I know of no such requirement in the INS regulations, at least yet. Absent a reporting requirement in some university code, state law or federal education law, I don't think a DSO has to report this.
Ellen: I guess this gets back to the not always easy matter of balancing our goals of helping all students, no matter what their status, with wanting to help other offices on campus do their job where there is the potential for an adverse impact on the institution.
Q. Bob: Are undocumented aliens eligible for non need-based scholarships, including sports scholarships?
A: Ellen: Many say yes. There is nothing in print on the subject, probably because there isn't any evidence that giving money to anyone is illegal as long as it is not in return for services or labor. The definition of employment for purposes of immigration law is at 8 CFR section 274a.1 and it comes directly from the statute. There is no other definition. There is also no problem in awarding scholarships to undocumented students on the basis of need as long as private, rather than public, funds are employed. This is because public money, such as federal and state assistance, is generally need-based and includes eligibility restrictions based on U.S. citizenship or permanent residency.
Bob: Are undocumented aliens to be treated differently at
intensive English programs?
A: Steve: If it is a public institution, then state and federal constitutional law principles apply. See our discussion above. If the intensive English program is at a private school, there may be a risk of a possible state or federal legal challenge if the school prohibited undocumented aliens from enrolling and the school receives any form of state or federal funds.
I repeat our earlier recommendation; if an institution has a policy barring admission based on immigration status or lack thereof, the institution’s legal counsel should review that policy.
Q. Bob: By denying admission, access to scholarships, or access to an intensive English program, you are denying a right to another human being. What is your defense?
A: Steve: On the legal side of this question, the public/private distinction may be important here. A public school may be subject to federal and state constitutional and statutory law considerations, such as equal protection. A private school may declare itself exempt from those, though query whether that effort would be successful.
Ellen: On the policy aspect of this question, I believe that if the applicant meets the academic requirements for your institution, you admit the student. If the scholarship is unrestricted, you award the scholarship. Other than our reporting obligations to F and J status individuals, the student's immigration status is a matter between the student and the INS. To quote from the INS cable of March 14, 1994, included in your handouts:
"The effect of Plyler [v. Doe] on post-secondary education is not clear; however, Congress has not adopted legislation which would permit states and state-owned institutions to refuse admission to undocumented aliens or to disclose their records to the Immigration and Naturalization Service.”
That statement is still true today.
Q. Bob: If we don't permit an undocumented alien to register for classes, aren't we denying that person her civil right to study?
A: Steve: Legally, the question is whether people have a legal right to university education. A 1973 Supreme Court case called San Antonio Independent School District v. Rodriguez clearly states that education is not a fundamental right. But Plyler v. Doe held that Texas could not deny undocumented school children an opportunity to attend public elementary and secondary schools. Although Plyler dealt with children and teenagers, not college students, the Court’s reasoning for imposing an intermediate scrutiny test in that case could be applied to a public college barring admission to undocumented aliens. First, you could argue that in today’s high-tech world, where people need an advanced degree for most good jobs, undocumented aliens would be similarly disadvantaged to the school-aged children in Plyler if they can’t go to college. Second, many undocumented college-aged students arrived in the United States when they were small children. Thus, like the children in Plyler, they are here through no fault of their own.
On the other hand, a court could also say that there is a difference between depriving a child of basic education that teaches reading and writing and denying an adult an opportunity to obtain a college degree. So the law on this issue is unclear.
Ellen: At my institution, to deny the student admission would be a violation of our equal access policy.
Q. Bob: There are criminal penalties for harboring fugitives, for aiding and abetting persons in violation of laws, and so forth. Is a university or its individual agents such as admissions officers and international advisors exempt from those statutes, or are those statutes inapplicable in the case of persons illegally in the United States?
Steve: As for the harboring issue, admitting an undocumented alien to your school or letting an undocumented alien live on campus is not harboring. INA section 274(a) makes it a crime to bring aliens into the United States and to harbor or shield them from detection. They also apply to people who aid, abet and encourage aliens in gaining unlawful entry to the United States. I am unaware of any university ever being convicted for harboring undocumented aliens on its campus. Colleges are neutral places of learning. Allowing undocumented aliens to become students is not the same as taking affirmative steps to conceal their presence. So I wouldn't worry about harboring issues.
Ellen: If a
student who is an undocumented alien has lived here for
years, attended a public high school, and graduated, are
they treated as international students or domestic?
A: Steve: Good question. For immigration purposes they are still "aliens." For educational purposes, they might be domestic "residents" for admissions purposes. Under IIRIRA section 505, they apparently cannot qualify for in-state tuition, although there are no regulations implementing that provision.
Ellen: At Binghamton University, the student might be treated as domestic by the admissions office in terms of reviewing their academic records, but not for the purpose of determining tuition charges or for financial aid eligibility.
Q. Steve: Is it appropriate for the DSO to serve undocumented aliens? Since the services and benefits INS offers are only available to students in status, what, other than a sympathetic shoulder, can a DSO offer an undocumented alien?
A: Ellen: Of course it is appropriate for me to serve undocumented aliens at my school. I am not an employee of the INS. I do not have a legal obligation to report undocumented aliens to the INS. Moreover, the services and programs my office provides go far beyond the signing of visa forms, and are available to any student.
Bob: Should undocumented aliens be allowed to enroll at my
A: Steve: This is a good policy question. If a board of trustees at a public university decides to adopt a policy denying undocumented aliens admission to the school, constitutional alarm bells immediately go off in my mind. But the law in this area is murky, as indicated above. If a board of trustees at a private institution adopted the same policy, we would wonder, what would their legal counsel say?
What do you all in the audience think?
Answer any Qs from audience.
Tools and Bibliography
League of United Latin American Citizens v. Wilson, 1998 U.S. Dist. LEXIS 3418 (C.D. Cal. Mar. 13, 1998)
League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995)
Leticia A. v. Board of Regents, No. 588-982-5 Cal. Super.Ct., Alameda County, May 5, 1985 digested in 62 Interpreter Releases 639-41 (July 12, 1985)
Plyler v. Doe, 457 U.S. 202 (1984)
Regents of the University of California v. Bradford, 276 Cal. Rptr. 197, 225 Cal. App. 3d 972 (1990)
Regents of University of California v. Superior Court, 225 Cal. App. 3d 972 (Cal. App. 2d Dist. 1990).
Toll v. Moreno, 458 U.S. 1 (1982)
IIRIRA §§ 505-507
8 C.F.R. § 214.3(g)
8 C.F.R. § 214.4
Ellen Badger & Sandra Casey, New Lessons to Learn: Major Student Related Provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 16 Immigration Law Report 175 (Aug. 1, 1997)
Sandra Casey, Dealing with Confusion: Admission of Undocumented Aliens into Public Postsecondary Institutions, 15 Immigration Law Report 137 (June 15, 1996)
INS General Counsel Legal Opinion No. 93-74, Documentation and Registration of Nonimmigrant Students (Sept. 21, 1993)
INS Memorandum, Revised School Approval Policy and Procedures (Jan. 14, 1994), reproduced in 71 Interpreter Releases 361 (Mar. 14, 1994)
William A. Kaplin and Barbara A. Lee, The Law of Higher Education: A Comprehensive Legal Guide to Legal Implications of Administrative Decision Making. Third Edition. Jossey-Bass Publishers. 1995
NAFSA Advisor’s Manual § 6.5
SUNY, Administrative Procedures Manual Item 010.1, Establishment of Residency for Tuition Purposes (available at )
U.S. General Accounting Office, No. GAO/HEHS-97-153, Higher Education: Verification Helps Prevent Student Aid Payments to Ineligible Noncitizens (Aug. 6, 1997)