Immigration Law and In-State Tuition
By Tim Geiger
In 1996, the Illegal Immigration Reform and Immigration Responsibility Act was passed by Congress (IIRIRA). Section 505 of the IIRIRA restricted granting in-state tuition to undocumented aliens. Section 505 states in pertinent part,
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 a 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.
This provision of the act seems analogous to Plyler v. Doe, where the court struck down a Texas law that required illegal aliens to pay full tuition in order to enroll in school in the Tyler Independent School District. The court in Plyler noted that education is not a fundamental and that discrimination against illegal aliens alone was not subject to heightened scrutiny. However, the court seemed to hold that the quasi-fundamental right coupled with the quasi-suspect class were sufficient in conjunction to elevate the standard of review. Similar to Plyer, section 505 discriminates against illegal alien students in the realm of education.
However, it seems that the major distinguishing factor between the two cases is that section 505 of the IIRIRA is a federal statute, where congress is afforded extreme if not total discretion to regulate immigration. Though equal protection has been extended to the due process clause of the Fifth Amendment, it would seem that any equal protection claim would not stand based on Fiallo v. Bell. In Fiallo the court rejected an equal protection challenge to a family reunification provision of the Immigration and Nationality Act of 1952. The provision being challenged gave illegitimate children immigration preference by virtue of their natural mother, but not natural father; or immigration preference by virtue of a legal alien child for a natural mother, but not an illegitimate father.
Therefore, it would appear that under the broad power that congress is afforded with regard to immigration makes this law constitutional; but what about a Tenth Amendment violation. Congress through this act has provided the States with a clear choice. In response to the Law, 10 States, including Texas, have passed laws that afford in-state tuition to undocumented aliens who have attended high school in the state and the same opportunity to non-resident, U.S. citizens who attended High School in the State. As a result, states who have continued to offer in-state tuition to undocumented aliens are faced with a financial penalty by being forced to lower tuition for student who would otherwise not qualify. However, in light of the broad power of congress to regulate immigration, it appears that there has been no Tenth Amendment violation. Instead it would fall into the second category that the court identified in New York v. United States, where the state law would be preempted by federal legislation.
However, given the shift in Immigration Policy, there is a new piece of Legislation currently being considered by Congress. The Development, Relief and Education for Alien Minors Act (DREAM act) of 2009, is a proposed bill which would offer undocumented aliens a means to become conditional legal residents during their pursuit of education. In addition, the act proposes to repeal section 505 of the IIRIRA.
Section 505 of the IIRIRA and the DREAM act seem motivated by two sharply differing ideologies regarding Immigration Law. Such a drastic shift seems remarkable given that only 13 years has passed since the IIRIRA became law. This contrast highlights the fact that the rights of undocumented aliens are subject to the shifts in partisan politics in the United States without regard to the protections of the Constitution. As a result, it is seems as though little has changed from the Chinese Exclusion Cases of the late 1800′s.
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