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Federal Law and the Education of Undocumented Immigrants

JURIST Contributing Editor Michael A. Olivas of the University of Houston Law Center says that recent state immigration laws restricting college access for undocumented immigrants are unnecessary and contradict deeply rooted principles of US law...

Immigration has always been a complex transaction and dangerous sojourn. Local forces have attempted to control the process, especially as the country was forming and borders were not yet fully established. Throughout US history, state and local politicians have introduced and enacted thousands of anti-alien bills. Some legislation has even been so mean-spirited as to advocate a repeal of Plyler v. Doe, the watershed Supreme Court decision that required Texas to give undocumented children free access to public schools. In difficult economic times, elected officials find scapegoating aliens is an easy way to reach low-hanging fruit, as if these workers were the source of the sputtering economy. For example, Alabama enacted the Alabama Taxpayer and Citizen Protection Act in 2011, regarded as the most draconian anti-immigrant legislation to date. The statute even required schools to conduct a census of undocumented children in schools, until it was enjoined by the US Court of Appeals for the Eleventh Circuit. Vamos a ver ("We shall see.")

If there were a group that holds promise to become productive, undocumented primary, secondary and college students would surely be that group. With the generally dismal schooling available to these students, that even a small percentage could meet the admission standards of colleges and universities is extraordinary. Given their status and struggle, each successful student represents a story of substantial accomplishment. Most of these students have parents who struggled to bring them to this country and exercised considerable risk to enable their achievements. That they succeed under such harsh circumstances is remarkable to virtually all who observe them. These students' success partially explains why so many educators and legislators have accepted Plyler and worked to assist them in navigating the complexities of school and college. Despite the success of anti-immigrant rhetoric in shaping a discourse and of restrictionists in fashioning resentments, reasonable state legislators of both parties have attempted to address the issues these students face.

Even as states have ratcheted up their efforts to apprehend undocumented parents and unauthorized workers, other states have carved out and maintained safe havens for undocumented college children. For example, Utah — not thought of as a particularly hospitable climate to immigrants — retained its post-secondary residency tuition for undocumented college students, even as it moved to enact significant restrictionist employment and benefit legislation. Several states have enacted harsh measures against these college students, such as South Carolina, which banned them in 2009. Most major receiver states have extended residency status to undocumented students, as have unusual venues from Nebraska to Kansas to Oklahoma. If Florida were to move in this direction, all the major immigrant states save Arizona would allow undocumented students to enroll and receive resident tuition status. These are surely markers of how deeply the roots of Plyler have reached into the country's soil.

On occasion, the centrist view prevails, as it did in Plyler. Despite the intermittent restrictionist impulses in the US polity, there has been wide and deep acceptance of these children in the nation's schools. Many, although not all, of the thousands of school districts and states have accommodated their enrollment, facilitated their schooling, celebrated their achievements, and extended them college acceptance and resources. Whether through the DREAM Act or other legislation, comprehensive immigration reform of some stripe is a likely eventual development. Paradoxically, the wide scale acceptance of Plyler, even in a time of increased authorized and unauthorized immigration, has occurred in the context of unprecedented nativism and restrictionism, and in the face of unmatched concerns about national security and terrorism.

In Georgia, while the more hateful tuition statute passed by the Senate was not replicated in the House, the state has already adopted policies that will not accord in-state tuition to the undocumented. To preclude their getting in-state tuition is tantamount to the same thing as denying them admission. Federal law sets the default position for undocumented college students as a status where they are ineligible for resident tuition, unless the state acts affirmatively to enact law to do so. Why pile on unnecessarily and waste legislative time with a redundant statute that would ban them entirely? Here, conservatives are overplaying their hand just to get moderates and progressive lawmakers on record as seeming to support an unpopular position.

That the Texas statute at issue singled out the children, innocent even if their parents had "dirty" hands, convinced the lower courts and Justice Brennan all the more that Texas could not even satisfy the most deferential level of constitutional review. Plyler suggests that the Supreme Court was willing to examine more carefully the benefits or statuses to be withheld or extended by states or Congress. Following Plyler, durational benefits and status distinctions would have to withstand more searching scrutiny and delineate immigration classifications more carefully and with nuance. That said, the case's incorporation of "inchoate" federal policy and lack of efficacy failed to generate clear doctrine or guidelines. Both of these issues have surfaced in the current debates over the extent to which local or state authorities may regulate immigration by means similar to the Texas school attendance zones, such as renter laws, work authorization, policing powers and other municipal ordinances.

The transcendent, glorious meaning of Plyler surely is its equal protection principles, applied to innocent sojourners in the larger community, but also its place in the complex assignment equation of who apportions benefits and status, and to whom, and under what constraints. Having decided Plyler on federal law preemption grounds would have assisted courts today which are deciding similar attempts to regulate immigration policy at the state and local level; such rulings would then shore up the stature of the case as timely and relevant, reaffirming it as the robust and supple decision it has never revealed itself to be. However they arrived here, most of these children are our newest family members, and we ignore this at our peril. For this reason, if for no other, Plyler v. Doe should be celebrated and noted as the salutary event it surely is. And it is not snobbery to want Doe to attend college.

Michael A. Olivas is the William B. Bates Distinguished Chair in Law at the University of Houston Law Center and the Director of the Institute for Higher Education Law and Governance at the University of Houston. He has authored multiple books, including No Undocumented Child Left Behind.

Suggested citation: Michael A. Olivas, Federal Law and the Education of Undocumented Immigrants, JURIST - Forum, Mar. 13, 2012, http://jurist.org/forum/2012/03/michael-olivas-immigration.php.

This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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