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Two bills (S1036 and A990) would enable New Jersey to join 11 other states in allowing an estimated 1,500 to 2,000 undocumented students per year to pay resident rates provided they maintain good grades, solid character, and attend at least three years of high school in the state.
Earlier this week, the New Jersey Assembly Appropriations Committee voted 7-4 and the Senate Budget and Appropriations Committee voted 8-6 to send the legislation to the floor for the first time in New Jersey history.
The bill was endorsed by the outgoing Governor Jon Corzine’s Blue Ribbon Advisory Panel on Immigrant Policy and the New Jersey legislature is trying to pass the bill before Governor-elect Chris Christie resumes office. Floor votes in the Assembly and Senate are scheduled as early as this Thursday. If New Jersey does not pass tuition parity in this legislative session, than the state may not get a chance to do so for another 8 years. Time is of the essence.
If you live in New Jersey, after signing the petition below, call these senators and ask them to support tuition parity for New Jersey residents – Senate Bill 1036.
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Disclaimer: This issue does not relate to me. I am not an AB-540 student and nor have I ever benefited from it. But it makes me mad that people are scapegoating fellow college students who have worked really hard to get where they are .
Seriously, college education should be free for all and then we wouldn’t be fighting over the small piece of the pie. Alas …
Kris Kobach finally got his first and last victory in the battle to end in-state tuition for undocumented students. The 3rd District California Court of Appeal issued a decision yesterday that challenges a state law allowing some undocumented students to pay in-state college tuition. (Explanation here)
After losing the battle in district courts and appeals court in various states, Kansas Chairperson of the Republican Party, Kris Kobach made one final appeal to the U.S. Supreme Court, only to be turned down. Obviously, the justices on the U.S. Supreme Court had nothing to say on the issue that hasn’t already been said by the district and appeals courts: the plaintiffs do not have a right to sue.
He vowed to keep trying to make life more difficult for undocumented students or immigrants without legal status (whom he would call ILLEGAL students) and collect more plaintiffs in order to sue states for providing in-state tuition to undocumented students who had graduated from those state high schools (i.e. in California, your eligibility for in-state tuition is determined by whether you have attended a California high school for 3 or more years).
(While we are on the topic of “illegal,” for those who don’t know, Kris Kobach is the GOP politician that sent out emails boasting about voter caging–an ILLEGAL tactic employed by the Republican Party to purge likely-Democrat voters from the polls. I thought ‘illegal is illegal’ – Why is this guy still allowed to roam around free after disenfranchising thousands of voters?!)
Addendum: This from Duke @ Migra Matters. “Look who was part of that class action suit …Brian Bilbray…ex-FAIR lobbyist and head of the nativist Congressional Immigration Reform Caucus …his kids had been living in VA and didn’t qualify for in-state tuition”
On the DREAM ACT
While the DREAM Act does not grant instate-tuition rights to undocumented students, opponents of the legislation have effectively spread myths purporting that “illegal aliens can get instate-tuition anywhere” with passage of the legislation. This is baseless and untrue–If the federal DREAM Act passes it would make this ruling ineffective or the plaintiff’s argument ineffective because it repeals the only statute that gives or may give these plaintiffs any legal standing (8 U.S.C. § 1623). However, that does not ensure that undocumented students would get instate-tuition at all schools because residency determination is a state prerogative.
Eleven states currently provide in-state tuition to children without legal status in the United States (Texas, California, Utah, Washington, New York, Oklahoma, Illinois, Kansas, Minnesota, New Mexico, and Nebraska.) ALL legal challenges and lawsuits filed against these states had been dismissed by courts until yesterday when the on-crack judges wanting some fame of their own reversed a decision by Yolo Superior Court Judge Thomas Warriner in 2006 that upheld the AB-540 tuition law passed by the Legislature in 2001.
While the courts in California battle over the issue, undocumented students are expected to continue paying in-state tuition till a final ruling is given on this matter. This also gives new purpose to California AB-540 students to push for the Federal DREAM Act, passage of which would strike-down the federal law prohibiting ‘benefits’ for undocumented students in higher education (unless citizens get the same benefit).
I believe Quaker sums the issue up best here in his own light comedic way for any passerby to understand. Rahman has another strong piece posted here that anyone defending in-state tuition for undocumented students should find helpful.
Below is some material that I had published earlier to provide a better background on the in-state tuition debate.
For a legal background of the in-state tuition debate, we first look to Vlandis v. Kline et Al (1973), in which two students who had recently established residency in Connecticut brought suit against the state under § 1983, alleging that the provisions of 1971 Conn. Pub. Acts § 126(a), which created an irrebuttable presumption of nonresidency for purposes of determining tuition between residents and non-residents in the state’s universities, violated the Due Process Clause of the Fourteenth Amendment. The U.S. Supreme Court affirmed the suit—“the state was forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresidence when that presumption was not necessarily or universally true in fact.” The court concluded that due process required that students should have the opportunity to present evidence of their bona fide residency within the state for in-state tuition purposes.
This holds true for undocumented students—children that are brought up in a particular state, and attend and graduate from secondary schools in that state should indeed be deemed residents for tuition purposes. Most statutes that give undocumented students instate-tuition are based on this premise. After all, as the U.S. Supreme Court ruled in Plyler v. Doe:
- The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents.
- Neither is there any merit to the claim that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the State’s boundaries and to put their education to productive social or political use within the State.
Undocumented or Illegal is not an immutable characteristic for these students—it is subject to change. The U.S. Supreme Court recognized that the ‘illegal alien’ child of today could be the U.S. citizen of tomorrow and there was no way of determining that the undocumented child would in fact be deported hence, “it would of course be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain.” Similarly, since deportation is a federal procedure and until it is completed in cases of individual undocumented students, it is impossible for a state to deem that a person is a ‘non-resident’ for tuition purposes because s/he may just indefinitely remain in the state after establishing it as home. Hence, granting in-state tuition to undocumented students based on their residency in the state becomes a rational and reasonable objective for the state.
Stuck in the deep recesses of the South and in a horserace to appear tough on immigration, the South Carolina Senate has approved a get-tough on immigration measure that among other things, would bar undocumented students from higher education in the state.
S 392 which may be signed as early as next week reads:
SECTION 17. Chapter 101, Title 59 of the 1976 Code is amended by adding: “Section 59-101-430. (A) A person who is not lawfully present in the United States is not eligible to attend a public institution of higher learning in this State, as defined in Section 59-103-5. The trustees of a public institution of higher learning in this State shall develop and institute a process by which lawful presence in the United States is verified. (B) A person not lawfully present in the United States is not eligible on the basis of residence for a public higher education benefit including, but not limited to, scholarships, financial aid, grants, or resident tuition.”
It is a sad day for DREAMers in South Carolina but also a depressing loss for the state to assist in creating a permanent underclass of undocumented Americans. After investing in these students through K-12, South Carolina loses this investment by declaring that the students have no right to pursue higher education and realize their dreams.
The higher education ban serves no compelling state interest and should be subjected to constitutional inquiry. In Plyler v. Doe, the U.S. Supreme Court made clear that public education was not an impetus for illegal immigration–
“The evidence demonstrates that undocumented persons do not immigrate in search for a free public education. Virtually all of the undocumented persons who come into this country seek employment opportunities and not educational benefits. . . . There was overwhelming evidence . . . of the unimportance of public education as a stimulus for immigration.”
Given this fact, the Supreme Court affirmed that charging tuition for undocumented students “constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration.” Similar logic applies in this case–barring undocumented students from higher education does nothing to stem the tide of ‘illegal immigration’ into the state–Why punish innocent students and impose disabilities on them that are contrary to the basic concept that “legal burden should bear some relationship to individual responsibility or wrongdoing?”
The Associated Press and several other news outlets picking up the AP are quoting the Arkansas Governor Beebee for stating that a “legal opinion he signed while he served as the state’s attorney general in 2005 clearly showed giving illegal immigrants in-state tuition likely would violate the Equal Protection Clause of the 14th Amendment.”
I was immediately curious as to how someone could possibly conceive that instate-tuition for undocumented students would violate the 14th Amendment. It made little sense–if anything, the opposite was closer to the truth. And I was correct. This is what the Governor actually wrote in his 2005 legal opinion:
“First, it is my opinion that the amendment adequately resolves the issue of possible violation of the Equal Protection Clause of the United States Constitution. Both undocumented aliens and U.S. citizens who meet the requirements of attending high school in Arkansas can obtain resident tuition rates and eligibility for scholarships through HB 1525 on the same basis, following the amendment. Because there is no unequal or disparate treatment based on alienage and both groups or classes are treated equally, there is no denial of equal protection. Accordingly, it is my opinion that the amended bill would withstand scrutiny under the Fourteenth Amendment to the U.S. Constitution.”
Clearly, either the Governor is being quoted wrongly by media outlets or he has conveniently forgotton his legal opinion in the frenzy to scapegoat immigrant students.
The federal statute in question during instate-tuition debates is 8 U.S.C. § 1623, which 10 states have already circurmvented. Legal opinion on whether instate-tuition for undocumented students violates that federal statute is unresolved and varied at best. Till now, both the University of Arkansas at Fayetteville and the University of Central Arkansas in Conway had offered undocumented students in-state tuition rates. That is about to change.
The State Higher Education Director Jim Purcell has advised higher education schools in Arkansas to add questions of residency and U.S. citizenship on admissions forms, and to require a Social Security number or student visa number.
There may still be hope for undocumented students in Arkansas. Rep. Joyce Elliott has stated that she is considering reviving a 2005 bill that would authorize postsecondary institutions in the state to grant instate-tuition to undocumented student residents. The measure may be revived in 2009. Till then, Arkansas may be going the way of North Carolina, one step away from banning undocumented students from pursuing higher education.
I hope the people in North Carolina and Arkansas are feeling ‘safer’ and more ‘sovereign’ after these ill-conceived measures to target students who are simply caught in the crossfire of the illegal immigration debate. Making higher education unaffordable for the majority of undocumented students does not do anything to stem ‘illegal immigration’ — it treats hard-working, driven and assimilated American students as unassimilable criminals, punishing them for civil violations they did not commit by rendering them stateless and inactive. Keeping students in school should be one of our number one priorities–kicking them to the curb for factors beyond their control is cruel and unusual punishment.
“I don’t know how I am going to do it, but I am going to do it. I am going to make my dreams come true.”
In 2004, John Hickenlooper made a promise to students from Cole Middle School in Colorado that if they graduated from high school, he would help find resources to help them pay for college.
At the time, Cole was one of the poorest performing schools in the city and about one-third of the students were undocumented. Yet they listened to the mayor, enthused by his promise, and decided to pursue their dreams and beat the odds against them. The time has come for the mayor to fulfill his promise and his office has run into trouble: the undocumented student graduates would be required to pay out of state tuition in the state they have resided-in for most of their lives, and are therefore unable to afford higher education. This is due to a 2006 law by the Colorado legislature that stipulates instate-tuition for only those that can prove citizenship.
Karen Hernandez’s parents came to the United States nine years ago. She says she didn’t have a choice in the matter. She says she shouldn’t be penalized for it now. The high school senior has an A average and she plans to go to Metropolitan State College of Denver and study pre-med. She thought everything was taken care of. Now, she says, “I don’t know how I am going to come up with the money.”
These students are not ungrateful; they are only seeking what was promised to them when they were young. They are driven, talented and have worked hard in the pursuit of their dreams. Punishing young students for the actions of their parents does not resolve the issue of illegal immigration. To place barriers to their higher education now advances no compelling state interest.
As for now, the mayor is looking for private donors to fund higher education for students who don’t qualify for instate-tuition. In fact, the entire scholarship fun is funded by private donors, not taxpayers. A better alternative for the Colorado state would be to push for an instate-tuition bill like 10 other states have already implemented since this problem won’t be going away anytime soon. More undocumented students will beat the odds and graduate from high school only to face obstacles to their higher education. It is in the best interest of society to avoid the creation of a permanent underclass of young undocumented Americans who would otherwise make great doctors, teachers, nurses, attorneys and scientists.
You can read more on the issue here.