Plyler v. Doe and the Rights of Undocumented Immigrants to Higher Education: Should Undocumented Students Be Eligible for In-State College Tuition Rates?

Abstract

There are an estimated 1.5 million undocumented aliens in the American public education system, and between 50,000 and 60,000 graduate from American high schools each year. 2 Although guaranteed free public primary and secondary education by the Supreme Court decision Plyler v. Doe, 3 these students have limited opportunities to obtain higher education.4 Because of their immigration status, these students are ineligible for financial aid. 5 Federal law authorizes, and arguably mandates, postsecondary educational institutions to deny undocumented aliens the in-state tuition rates available to state residents, rendering the possibility of continued education even less likely.6 Nonresident tuition is usually two to three and a half times the amount of in-state tuition.7 Given the high cost of college and university tuition, the unavailability of either 1. 457 U.S. 202 (1982).2. Janice Alfred, Note, Denial of the American Dream: The Plight of Undocumented High School Students Within the U.S. Educational System, 19 N.Y.L. SCH.J. HUM.RTS.615, 638 (2003).3. 457 U.S. 202 (holding that a Texas statute denying free public school primary and secondary education violated the Equal Protection Clause).4. Alfred, supra note 2, at 616. 5.The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA") precludes undocumented immigrants from qualifying for federal financial aid or student loans.The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. No. 104-193, 110 Stat.2105 (codified as amended in scattered sections of 8, 42 U.S.C.).6.The Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA") prohibits states from offering illegal immigrants the lower tuition rates offered to state residents.Illegal Immigration Reform and Responsibility Act of 1996, Pub.L. No. 104-208, Div.C, 110 Stat.3009 (codified at 8 U.S.C. § 1623).The statute reads:Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or 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.Id.7. Combating In-State Tuition for Illegal Aliens, available at http://www.fairus.org/news/ NewsPrint.cfm?ID=342&c=41 (last visited Apr.

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