A Reform with a Small Pricetag: In-State Tuition for Undocumented Immigrants

By BRANDON MARTINEZ, JR.

            According to The New York Times, approximately eleven million illegal immigrants currently reside in the United States (Preston). Of those, says the Urban Institute, sixty-five thousand graduate from American high schools each year (Passell 1). These young illegal aliens face innumerable obstacles to their personal and economic success as a result of their unauthorized status, not the least of which is their near inability to find funding for higher education in the United States. In a society where a college degree is a key to opening many economic and political doors, yet where any meaningful educational opportunities are relatively competitive and extremely expensive, the issue of providing public means for illegal immigrants’ academic achievement beyond secondary school is a critical one. This paper will examine only one facet of the debate regarding education and illegal immigrants: the issue of in-state tuition for unauthorized alien students. It will use scholarly and statistical evidence to demonstrate that charging illegal immigrants for access to public universities at the same rate as legal US residents of the same state can only benefit American society at-large. Despite various arguments to the contrary, allowing unauthorized residents to pay in-state tuition for a public higher education is economically beneficial for both students and the state, and can only contribute to the democratic well-being of our society.

             At present, federal law on this issue – codified in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and Personal Responsibility and Work Opportunity Act (PRWORA) – prohibits states from offering undocumented students post-secondary education benefits on the basis of residency (Urteaga 721-22; 724-25)i. In 2002, California became one of several states in the union to adopt statutes permitting nonresidents, including undocumented immigrants, to pay in-state tuition for access to its public universities. The law exempts students from out-of-state tuition not by residency but by their attendance of a California high school for at least three years, among other requirements (727-26)ii. This move drew significant criticism from many anti-immigration activists throughout the United States, who brought a landmark suit against the state, called Martinez et al. v. Regents of the University of California et al., and argued that California’s law discriminates against US citizens and is preempted by IIRIRA and PRWORA (727-30). In November 2010, the Supreme Court of California ruled in favor of the state, holding that, since the 2002 statutes regarding in-state tuition based eligibility not on where a student lives but on where he or she graduates from high school, they did not give preferential treatment to undocumented immigrants (Martinez et al. v. Regents of the University of California et al.). In June 2011, the United States Supreme Court rejected without comment an appeal brought by the plaintiffs, effectively upholding California’s in-state tuition law and those of the eleven other states with similar statutes (Webley). For the moment, California’s provision of in-state tuition for undocumented immigrants remains good law. But its status as good public policy, especially in the context of the ongoing immigration debate nagging at both state and federal governments, remains largely unsettled.

            As with any other matter involving the use of public funds, it is critical to examine the economic benefits and costs associated with providing in-state tuition for illegal immigrants. The policy’s proponents argue that, besides fulfilling a number of social needs, giving undocumented students the significant financial break that in-state tuition creates can, for the long-term, only help the economic position of the state as well as of students themselves. Opponents, like University of Missouri law professor Kris Kobach, assert that the policy costs jurisdictions that implement it “staggering amounts of money” (Kobach 499). Given the allegedly extreme costs associated with extending in-state tuition beyond legal residents of a given state, Kobach asserts, most taxpayers would “rather give it to law-abiding U.S. citizens from out of state, who can legally settle and work in the state after graduation,” rather than undocumented students (500).

            Kobach’s claim, although perhaps true in principle, is wrong in fact. A comprehensive 2011 report on the most recent studies regarding the effects of in-state tuition for non-citizens, published by the Latino Policy Institute at Roger Williams University, concludes that in-state tuition policies do not in fact result in higher public subsidies for which taxpayers must pay (Institute 12). The report notes that only two studies, published by the Federation for American Immigration Reform (FAIR) and the Center for Immigration Studies (CIS), provide concrete numbers to support Kobach’s argument. Both studies, the Roger Williams report says, have severe methodological flaws. FAIR’s analysis, for example, calculates the difference between a state’s out-of-state and in-state tuition rates and then multiplies that figure by the number of undocumented students expected to enroll in public colleges after in-state tuition laws are passed (11-12). Kobach uses the same method in his own calculations, reporting that California taxpayers must pay over $100 million annually to subsidize the education of illegal immigrants (Kobach 499). As the Latino Policy Institute notes, however, these figures assume that the same number of unauthorized students would enroll at state-funded universities if forced to pay out-of-state tuition, a clearly erroneous assumption (Institute 12). Kobach and FAIR’s numbers are therefore enormously exaggerated.

            Kobach and FAIR also assume that the actual cost of educating a college student is equivalent to the out-of-state tuition rate, which the report indicates is also usually false. Any student, therefore, illegal or otherwise, who does not pay out-of-state tuition is not necessarily costing a state money, the report indicates; he or she is only decreasing the amount of revenue a state may receive (Institute 11-12). Other analyses suggest that, in states with relatively smaller illegal immigrant populations, “public colleges would incur little or no added cost in accommodating these small numbers of additional students”; in fact, considering that as much as “31% more students may attend college if in-state tuition were offered,” these public universities could potentially take in more tuition revenue if undocumented immigrants were admitted and exempted from out-of-state tuition (Salinas 874; Institute 11).

            The Roger Williams report concludes that exempting undocumented immigrants from out-of-state tuition does not present any direct, long-term financial net losses to public universities or to the states that subsidize them (Institute 16). The Latino Policy Institute’s director even suggests that “from the digging we’ve done, it appears that there is no cost to states, and there might even be a financial benefit” (Mangan). Echoing the claims of countless pro-immigrant scholars and commentators, the report goes on to suggest that any:

             “true and accurate cost-benefit analysis of the financial effects of in-state tuition needs to take into account…future financial contribution of college graduates versus high school graduates, and state subsidy per in-state tuition students versus out-of-state tuition student (if such a variable could be precisely determined), along with many other variables that effect the short and long-term costs and benefits of this legislation.” (Institute 16)

              In short, merely assessing the immediate effects on state revenues of allowing illegal immigrants in-state tuition is shortsighted. We must look at other short- and long-term economic factors.

              Various scholars agree, for example, that failing to make higher education financially feasible for undocumented students will, as one U.S. Supreme Court opinion argued, “permanently lock [them] into the lowest socio-economic class” (Plyler v. Doe). It is undeniable that a college degree confers greater material and personal benefits upon an individual than only a high school diploma. One report indicates that households headed by an individual with a bachelor’s degree earn approximately $1.6 million more in a sixty-year period than families headed by an individual with only a high school diploma (Hansen). Washington University attorney Laura S. Yates, among other scholars, insightfully argues that “Barring qualified undocumented youths from obtaining advanced degrees creates a subclass of persons otherwise capable of becoming professionals and significant taxpayers” – a situation that, if ameliorated by making greater accommodations for illegal students, could open up tremendous amounts of tax revenue to the jurisdictions that implement in-state tuition policies similar to California’s (Yates 605, emphasis added). In short, states would over the long term recoup any direct costs of exempting undocumented students from out-of-state tuition rates.

              Besides potentially increasing state tax revenues in the future, in-state tuition policies for illegal students would also save jurisdictions money currently spent on social welfare and crime control. Prominent immigration attorneys Beth Peters and Marshall Fitz persuasively argue that charging undocumented students out-of-state tuition presents a “ceiling on opportunity” that will “increase reliance on state benefits…and engender a cycle of dependence” on social welfare programs by immigrants, especially Latino students (Peters and Fitz 568). Yates and other scholars are even more explicit in their arguments to this effect, arguing that “providing [undocumented students] with an education today will save the country money in the future – money that the government would need to spend on social welfare, drug rehabilitation and medical emergency services for lower-income individuals” (Yates 605; Alfred 641; Lee 250). By perpetuating poverty, increasing crime, and only contributing to the long-term costs of social programs designed to ameliorate both, denying the undocumented population educational benefits like in-state tuition costs states overall more money than any immediate losses the public university system may suffer (Rich 323). This fact – coupled with the personal miseries (depression, malnutrition, stress, demotivation) of those illegal students denied higher education and relegated to the lowest rungs of the socioeconomic ladder – makes it clear that states lose more than they save by failing to institute in-state tuition policies (Wheelhouse 668-89).

             Several other compelling economic arguments have been made in favor of such in-state tuition reforms. One such argument, made by various pro-immigrant attorneys involved in recent educational litigation, asserts that it is both financially and morally irresponsible to educate undocumented immigrants through secondary school, as the U.S. Supreme Court mandated in its landmark decision Plyler v. Doe, and then deny these students a college education (Plyler v. Doe; Alfred 649-50; Connolly 217; Urteaga 741-42; Yates 603-04). When one considers the enormous amount of money already spent on educating illegal students through high school, and also considers that, as Yates notes, “primary and secondary education are no longer sufficient for economic success” today, it becomes clear that failing to accommodate the undocumented is a tremendous waste of precious public resources (Yates 604). Unfortunately, in a technologically advanced and professionally complex society, even the best public K-12 school systems become moot when graduates are forced into low-skilled and low-paying jobs not by their merits but by their immigration status (Lee 248). It is undeniably a waste of state resources to invest in a student’s education through high school and then deny them the opportunity to complete it with a vital college degree. Lowering tuition costs would be a valuable step towards allowing undocumented students to further their academic achievement and maximize returns on states’ primary and secondary school investments.

              Further arguments in support of in-state tuition policies can be found in a large body of legal research and public policy work already performed into the issue. These include compelling indications that statutes similar to California’s can be a partial solution to the growing shortage in the United States of native-born college-educated workers (Alfred 643; Huang 436-39; Lee 256). Proponents of this view argue that “instead of importing skilled workers,” a lack of whom has begun to plague the American job market, the United States “should train the workforce in its midst: undocumented students who want higher education” and from whose “economic and social contributions” American society will benefit (Rich 325; Alfred 643). Another line of supportive reasoning contends that there are potential cultural benefits to educating undocumented students: some studies suggest that “undocumented students at California public universities participate in higher-than-average levels of community service and civic activity, including community education and mentoring” (Rich 325). While such contributions are difficult to quantify, proponents of immigrant-friendly in-state tuition laws argue that educated undocumented students are “asserting themselves as responsible members of society” and “should be recognized and rewarded so that future undocumented students are encouraged to continue in their footsteps” (325).

             Several myths exist regarding the dangers or drawbacks of in-state tuition laws like California’s and other pro-immigrant policies; they persist despite the large body of scholarly evidence indicating their factual invalidity. Among these are the arguments, made by a vast swath of media pundits, that immigrant-friendly public benefits incentivize further illegal entry into the United States, and that undocumented immigrants will compete with legal residents and citizens for educational and employment opportunities (MacDonald; Kobach 500-03). Unfortunately, the complexity and scope of these arguments are too great to be addressed in this paper, and for this reason the reader may examine the excellent and thorough treatment of these issues by other public policy analyses, especially those by prominent immigration attorneys Thomas R. Ruge and Angela D. Iza (Ruge and Iza 276-77; Connolly 213-17; Urteaga 742-43; Yates 605-06).

              Anti-immigrant commentators do consistently make one argument regarding undocumented students that cannot be ignored here: illegal immigrants, they assert, no matter how well-educated, are not legally permitted to receive employment in the United States and therefore cannot pay income taxes. Kobach notes that college-educated undocumented students “cannot legally remain in the United States for any purpose” and that “employers who seek employees with college educations are reluctant to violate federal immigration laws by hiring unauthorized workers” (Kobach 502-03). Therefore, he says, “even if the federal government did not succeed in removing these illegal aliens during or after their postsecondary education, it is highly unlikely that they would be able to take full advantage of their newly-minted college degrees” (502-03). Kobach concludes that states with in-state tuition laws would “have subsidized the creation of a well-educated class of illegal aliens who cannot take full economic advantage of their education if they remain in the United States” and who cannot pay taxes, meaning that states could not recoup any costs associated with granting them in-state tuition (503). As long as immigration laws restrict undocumented employment, the argument by immigrant advocates that in-state tuition policies are investments in a healthy future, both for immigrants and for states, is void. Kobach and others argue that until federal immigration policies change, states should not grant in-state tuition to undocumented students.

               The clear solution to this legal impasse lies in future immigration policy reform. As it stands, the American government’s legal immigration process is absurdly labyrinthine. Unfortunately for many immigrants, especially those who are unskilled, it is virtually impossible to gain legal access to the United States, leaving those who face dire economic and sociopolitical circumstances in their home countries little choice but to emigrate illegally (Flynn and Dalmia). This creates the enormous population of undocumented residents in the United States today, a subclass of individuals unable to remain in their home countries yet “unable to participate in our democratic society” (Lopez 1377). Unfortunately, the federal government has dragged its feet on resolving the problem its own unjustly and inefficiently designed immigration system creates. Since little serious political consensus has been reached on what kinds of people, if any, should be given legal access to the United States, there have been few successful efforts at immigration policy reform at the federal level since the 1980s, at least in favor of the immigrant population itself. What explains this phenomenon? What political forces have put immigration reform into a standstill for so many years, especially when it is, for many who cross America’s borders, a matter of life and death?

               The answer may lie in Rogers M. Smith and Desmond S. King’s theory of racial orders in American political development. These two prominent political scientists argue that, throughout all U.S. political history, two competing “racial institutional orders,” in which political actors and institutions have “adopted (and often adapted) racial concepts, commitments, and aims in order to help bind together their coalitions and structure governing institutions that express and serve [their] interests,” have continuously fought (Smith and King 1). Smith and King trace the development of these polar political coalitions, called the “transformative egalitarian” and “white supremacist” orders, throughout United States political history. Political actors’ support of each is often the complicated result of a clash of ideational, political, social, and economic factors; for this reason, individual or group allegiances to one or the other order may change over time (75-77). In the post-Civil Rights era, Smith and King say, the white supremacist order is more clandestine in its support of institutions of racial inequality in the United States, and therefore may be called the “antitransformative” racial order (77-78; 83)iii.

               The transformative egalitarian-white supremacist thesis is highly applicable to the issue of immigration reform and immigrant education today. Politicians on both sides of the ideological spectrum have been largely unable to secure comprehensive changes to U.S. immigration policy on behalf of the transformative egalitarian order – instead, especially in the post-9/11 era, as Smith and King point out, American immigration policy has been characterized by inegalitarian racial paranoia (89). In affirmation of Smith and King’s argument that allegiances to racial institutions go beyond mere ideological commitment but often include unjust economic concerns, some commentators assert that the “nation’s interest is the maintenance of an underclass of undocumented, low-wage earners who fuel the nation’s economy” (Lopez 1377; Urteaga 726). Others note the tendency of political candidates, often conservative, to prey on the post-9/11 nativist fears of their constituency to win office, therefore subordinating the long-term interests of the nation and immigrants themselves to their short-term political conveniences (Noorani 190-91). For reasons of scope, a full-length discussion of the complex ways in which the issue of in-state tuition, and the larger immigration reform debate, relate to Smith and King’s thesis must be left up to further research.iv

               But this discussion cannot be left solely to the academy. Immigration to the United States will never end, but perhaps the obstruction of justice for immigrants, caused by poor public policies and immigration system inefficiencies, can. In-state tuition for undocumented students is a step in that direction, a step in favor of racial egalitarianism. As a policy, Will Wilkinson of The Economist notes, it “signals that we were once a nation of immigrants, and even if we have become too fearful and small to properly honor that noble legacy, America in some small way remains a land of opportunity” (Wilkinson, “The Message the DREAM Act Sends”).


Footnotes

i IIRIRA Section 505 holds that, as Urteaga faithfully summarizes it, “a person who has entered the United States unlawfully cannot qualify for post-secondary education ‘benefits’ if that benefit is determined via ‘residency,’ unless the same benefits are also available to United States citizens who are not residents of the state granting the benefit” (Urteaga 724). PRWORA Section 4, subsection (a) adds that “undocumented persons are ineligible for state benefits and includes ‘postsecondary education’ as a defined benefit. Nevertheless, under subsection (d), PRWORA further provides that…if a state passes a law after August 22, 1996” granting a state benefit, “subsection (a) of this provision no longer applies” (725). In sum, undocumented students are restricted from receiving state educational benefits, including financial aid. Unfortunately, the loophole clause of PRWORA Section 4, subsection (d) just discussed creates confusion: the act seems to obscure, rather than clarify, the extent of state powers on the issue of in-state tuition for illegal immigrants.

ii California’s law exempting illegal immigrants from out-of-state tuition is not to be confused with the more recent “California DREAM Act,” AB 130 and 131, recently signed into law by Governor Jerry Brown. The second of these laws would allow undocumented students who meet California’s 2002 in-state tuition requirements to apply for and receive Cal Grants by California’s public colleges and universities, with heavy qualifications. The public policy considerations, especially the financial ones, relating to AB 130 and 131 are different from those discussed in this paper, which only concerns the issue of in-state tuition for undocumented students as established in California’s 2002 law and similar statutes in other states. (The California DREAM Act! Official Website of AB130)

iii Smith and King use this argument to claim that racial inequalities in American history have been more than mere aberrations from the liberal ideal on which the United States was founded. Rather, they are the result of a complicated clash between transformative egalitarian forces, which are concerned with making the liberal equality thesis a reality, and white supremacist, “antitransformative” forces, which for a complex variety of economic, political, and ideological reasons, are interested in maintaining “ascriptive American” racial hierarchies in the United States. For a more thorough examination of this argument, see Smith and King’s article “Racial Orders in American Political Development” and Smiths’ piece “Beyond Tocqueville, Myrdal, and Hartz: The Multiple Traditions in America,” both included in the works cited following.

iv Various media sources have commented in more depth on the political machinery behind the U.S. federal government’s seemingly lethargic pace in resolving America’s immigration problems. The Washington Post’s Philip Rucker and Dan Balz note that Republican presidential candidate Rick Perry, governor of Texas, vehemently defends Texas’s own policy granting undocumented immigrants in-state tuition. This seems to contradict King and Smith’s assertion that today’s antitransformative order is most often aligned with the conservative Republican camp. But Perry’s case is a perfect example of what Smith and King mean when they argue that a political actor’s allegiance to one or the other racial order often goes beyond mere party or ideological commitment. Perry’s apparent support of the transformative egalitarian, pro-immigrant order, despite his generally conservative political alignment, is a result of other competing interests, including his concern with creating a racial subclass of “tax wasters” rather than “tax payers” (Rucker and Balz).

An article by Will Wilkinson from The Economist, entitled “The Demographic Politics of Immigration,” goes into further detail regarding the various long- and short-term interests of the Republican and Democratic parties in regards to the immigration issue. As Smith and King do in their works on racial orders and American political development, he discusses the clash of political ideology – egalitarian or ascriptive – of contemporary candidates with the long-term concerns of the nation. Nativist sentiment in much of the conservative constituency, Wilkinson argues, explains why the GOP, despite its long-term political interest in developing a pro-immigrant platform, resorts to short-term, anti-immigrant tactics to win office (Wilkinson, The Demographic Politics of Immigration).


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