By Lucie Kneip and Patrick Aimone
Undocumented residents in twenty-eight states are ineligible for in-state tuition to attend public institutions of higher education. This is a significant roadblock to undocumented residents pursuing their desired career, educational, and life plans. Additionally, it causes severe economic inefficiency by arbitrarily restricting human capital investment among undocumented immigrants. There is also reason to believe that such a restriction violates the Equal Protection Clause of the 14th Amendment under the doctrine articulated in Plyler v. Doe, giving the federal government a powerful tool to achieve nationwide adherence to a policy of in-state tuition for undocumented residents. We propose that Congress use its authority under the Enforcement Clause of the 14th Amendment to pass legislation requiring states to extend in-state tuition rates for public institutions of higher education to undocumented residents.
One of the most significant barriers to socioeconomic mobility for undocumented residents in the United States is their lack of access to affordable college education. Undocumented residents in twenty-eight states are ineligible for in-state tuition to attend public institutions of higher education (NILC), hindering them from pursuing their desired career, academic, and life goals and unjustifiably restricting human capital investment to the detriment of the nation’s economy. The Supreme Court has interpreted the Equal Protection Clause of the 14th Amendment to guarantee undocumented residents equal access to public K-12 education (Plyler v. Doe), and given the indispensability of a college education to economic mobility in the 21st century and the taxpaying status of the undocumented population, the logic of Plyler can and should be extended to higher education. This gives the federal government the authority under Section 5 of the 14th Amendment to mandate that states provide undocumented residents equal access to in-state tuition and financial aid. Such legislation would ensure equitable treatment for all U.S. residents, provide an economic windfall for future generations, and affirm the values enshrined in our Constitution.
In Plyler v. Doe, the Supreme Court squarely established that Texas could not deny its residents access to K-12 education based on their immigration status. The Court first held that the Equal Protection Clause applied to undocumented residents of Texas, since they fall within the state’s jurisdiction (Plyler 215). Although it did not consider education a fundamental right nor undocumented immigrants a suspect class (ibid, 223), the Court applied a heightened level of scrutiny to Texas’ law, requiring it to demonstrate that denying them education served a substantial state interest (ibid, 224). It justified this standard because of the concern that denying education to undocumented residents would “impose a lifetime hardship on a discrete class of children,” creating “a permanent underclass” (ibid, 223, 239).
Texas argued that denying services to undocumented immigrants was a state interest in itself, and that it served the substantial interest of reducing state spending on education. The Court held that denial of services itself was not a substantial interest, because students young enough to attend elementary school presumably did not decide to immigrate on their own— so punishing them violates norms of justice (ibid, 220)— and because punishing undocumented immigrants in this way would not mirror any clearly identified objectives of federal policy (ibid, 225). The Court further held that undocumented status is not sufficiently related to educational costs to justify denying education on that basis, because there is no evidence that undocumented immigrants consume more in state services than they contribute in taxes or that they cost more to educate than other students (ibid, 228-9).
Further scholarship has also defended the court’s decision on originalist grounds, on the basis that 28 of 37 state constitutions required the state to provide public education when the 14th Amendment was ratified, suggesting that public education was viewed as a right at the time and therefore guaranteed to all persons in a state’s jurisdiction by the Equal Protection Clause (Calabresi and Barsky 297).
The Supreme Court has not, to date, extended Plyler to educational contexts outside of public K-12 schools. However, in the social and economic context of the 21st century, the logic of Plyler clearly applies to equal access to higher education. A thorough analysis of intergenerational class and occupational status mobility finds that a college education yields not only substantial economic returns but decreases the extent to which one’s class and status is determined by one’s parents’ class and status (Torche 764), and a college degree will only become more important, as the Bureau of Labor Statistics expects job growth to be concentrated in fields requiring postsecondary education or higher over the next decade (Rolen 5). Clearly, the Court’s worries that unequal access to education could produce a permanent underclass are no less concerning today.
Moreover, the two other central elements of the holding in Plyler apply to college students. The argument about students not being themselves responsible for their undocumented residence in a state is as likely to hold for college applicants as for high school students, considering that the majority of college applicants are in fact high school students, and that the average age of full-time undergraduate students is 21.8 years old (Miller). If this holds true, then undocumented status is not in itself a legitimate grounds for denial of educational benefits; furthermore, there is no evidence that it is related to cost of education, especially considering that unlike high schools, public colleges have a separate mechanism— selective admissions— to exclude students for whom remedial education would be prohibitively expensive. Finally, the state justifies in-state tuition rates on the basis of merit, and that continued presence in a state indicates some sort of contribution to or affinity for the state. Thus, there would be no reason to assume that undocumented residents have not developed the same meritorious qualities as resident citizens, if their presence in the state is the same.
If the application of Plyler to the context of higher education is reasonable, and has not been ruled out by a Supreme Court decision, then Congress has the authority to mandate states extend in-state tuition rates to undocumented residents under Section 5 of the 14th Amendment (the “Enforcement Clause”). The Enforcement Clause provides that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article,” including the Equal Protection Clause. Previous Supreme Court decisions have limited Congressional authority under the Enforcement Clause to regulating only state conduct, and only to prevent or remedy violations of rights already recognized by the Court, although these limitations are not without controversy (Chemerinsky and Maltz). But the right of equal access to education is one which has been recognized by the Supreme Court in Plyler, and the indispensability of a college education in the 21st century—one question on which the extension of Plyler seems to hinge—is a paradigmatic example of a question of fact which a legislature is better positioned than a court to decide. Moreover, some contemporary scholarship on the Enforcement Clause suggests that Congress’ power ought be limited only by the core meaning of the constitutional provisions being enforced, rather than the procedural gloss applied by the judiciary (Araiza 1801), meaning procedural difficulties that have prevented the Supreme Court from ruling on the extension of Plyler (such as the absence of a suitable case rising through the courts) should not prevent Congress from legislating on it.
Opponents of applying Plyler to a higher education context may object that state denial of in-state tuition rates has one thing which discrimination in the K-12 context does not: correspondence to the federal objective of denying tuition benefits to undocumented residents. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) seems to support this contention; its Section 505 provides that “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” (Yates 585). However, this objection does not hold water. First, correspondence of a state interest to a federal interest is not sufficient if the federal interest is itself illegitimate, and a rigorous application of the logic of Plyler would suggest that the federal government also does not have a legitimate reason to deny access to higher education specifically on the basis of immigration status, if the same findings about equal tax contributions and cost of education for undocumented and legal residents cited in Plyler hold true on a national scale. This implies that the provision of the IIRIRA cited approvingly by state legislatures may itself be unconstitutional. Secondly, the IIRIRA does not effectually prohibit the extension of in-state tuition rates to undocumented residents (Ruge and Iza 383; Feder; Konet), so the inference that the IIRIRA intended such a prohibition, or and therefore that such a denial corresponds to an explicit federal objective, is shaky at best. Finally, if Congress were to pass legislation requiring states to extend in-state tuition to undocumented residents, as this memo proposes, such a law would override the IIRIRA’s objectives and therefore remove this justification for state denials of in-state tuition. Curiously enough, under the Court’s current doctrine, even if the denial of in-state tuition were previously constitutional, passage of this legislation could render the denial unconstitutional because of the loss of the correspondence with federal objectives. The legislation would therefore produce its own constitutional authority under the Enforcement Clause to resolve the newly produced violation of the Equal Protection Clause.
Nearly 100,000 undocumented immigrants graduate from U.S. high schools every year, and education policy debates vis-à-vis unauthorized immigration have become prominent in various states (Zong 3). Eleven states have offered state financial aid to certain undocumented students, including DACA recipients (Soria Mendoza). Yet for thousands of students across the US, the issue of access to higher education via trade schools or four-year universities persists. Legislators are presented with an opportunity to express support for public education, an issue with potential electoral payoff in districts with a higher percentage of Hispanic residents (Reich et al. 189). Increasing access to public education by granting undocumented students access to in-state tuition will increase college attendance rates, boost the American economy, and contribute to diversity at public postsecondary institutions.
At current rates, approximately 24.2 million Americans will have earned postsecondary degrees or certificates by 2025. To meet economic demands, an additional 16.4 million degrees will need to be awarded during this period. Only 44% of eligible U.S. students pursue postsecondary education, as compared to 66% of Korean citizens aged 25-34 now completing tertiary education. Postsecondary education completion rates increased by an average of 11% between 2000-2012 in developed countries, as compared to 7% in the U.S. (Núñez et al. 52). Undocumented students who currently lack financial resources but have the desire to graduate college and enter the workforce can increase the U.S.’s postsecondary attainment rate if out-of-state tuition costs do not present an obstacle. Students who graduate college will make an estimated $1,000,000 more than their counterparts over their lifetime, and students from low-income families who obtain a degree are almost four times more likely to advance to the top income distribution level than their peers (Núñez et al. 53). Increased earnings produce higher tax contributions. The average cost in 2016 to educate and support a college student for one year was $14,000 for public bachelor’s institutions and $17,300 for public research institutions. The net public return is about $232,779 for each man, and $84,313 for each woman achieving postsecondary education; thus, higher education is clearly a worthwhile economic investment (Ibid).
Granting in-state tuition promises minimal fiscal cost if the cost is apportioned across all legislative districts, thus minimizing opposition from select districts that may bear a disproportionate share of the cost (Reich et al 181). Though there is an associated cost, undocumented immigrants pay taxes and thus are already subsidizing the cost of higher education. Undocumented immigrants’ effective tax rate is about 8%, and they contribute around $12 billion in state and local taxes each year (Núñez et al. 53). Further, undocumented high school graduates who did not make the decision to emigrate and who aspire to professional success and citizenship can become valuable contributors to the U.S. economy if given the opportunity to succeed. Research shows that undocumented students are more likely to graduate from high school in states where they can access in-state college tuition rates (Núñez et al. 51). Implementation of policies that deny or permit in-state tuition send clear messages to immigrant communities and consequently impact undocumented students’ ambitions to pursue a college degree.
Granting in-state tuition policy for undocumented students does not necessarily produce adverse educational effects for U.S. citizens. Evidence suggests that the decision to provide in-state tuition subsidies to undocumented students raises college enrollment rates without reducing the financial aid or increasing the debt borne by natives (Amuedo-Dorantes et al 21). Further, existing policy that grants in-state tuition to undocumented students caused an increase in the proportion of U.S.- born young adults with college education, and raised university enrollment of U.S. citizens of Mexican heritage, the nation with the largest proportion of U.S. immigrants (Kaushal 789). Further, many Mexican families in the U.S. are a mixture of citizens, legal residents, and undocumented persons. A tuition subsidy for the undocumented could increase awareness of the benefits of college education lower costs, which then improves opportunities for citizens with Mexican parentage (ibid).
Investment in education increases human capital, which translates into a more skilled workforce and benefits employers. Low income undocumented students may see the monetary costs of investing in a college education as immense, but may see the benefits of higher wages in the future as outweighing immediate direct and opportunity costs. However, non-monetary uncertainties disproportionately hinder undocumented students’ ability to pursue the latter choice. Psychological costs of revealing the undocumented identity of oneself or one’s family can increase fears over enrolling in public institutions (Flores 247). State support for undocumented students’ eligibility can reduce uncertainties associated with nonmonetary costs and benefits by cultivating a safe space for students to pursue an education while protecting and feeling secure in their identity, thus leading to higher enrollment rates (Flores 248). A 2012 study found that undocumented college students do not view themselves as a “marginalized population headed toward failure,” but rather as “resourceful and capable of success” (Muñoz & Maldonado 305). Further, undocumented students receive emotional support from families, create social networks, and utilize informational resources from teachers and peers, all of which contribute to their academic success (Enrique 476). With this support, they maximize the social benefits of offering in-state tuition by becoming actively and politically engaged on campus and serving as role models to their communities after graduation. Many undocumented students identify the U.S. as their home and seek to give back to their communities (Núñez et al. 54). And the testimonies of undocumented students indicate that having classmates “who share their unique and often difficult situations” can be essential to their success and well-being in the often-isolating environment of higher education (Kleyn et al. 38).
Existing state tuition policies targeted at providing aid for undocumented students have been proven to significantly increase enrollment rates of Latino foreign-born noncitizens (FBNCs). A 2010 study found that FBNC Latinos are 1.54 times more likely than not to have enrolled in college after the enactment of in-state resident tuition (ISRT) policies, compared to the same population in the rest of the US (Flores 260). In one of many successful case studies, Texas HB 1403/SB 1526 granted undocumented students access to in-state tuition and state financial aid programs, contingent on residency criteria. Strong evidence exists that its passage directly increased the proportion of undocumented high school graduates who enrolled in college: from 2001, the year of the bill’s passage, to 2005, the number of undocumented students registered in public colleges increased from 1,505 to 8,880 (Dougherty 137). Further, ISRT beneficiaries progress through college at the same rates as U.S.-born Latinos (Flores 271).
Recommendations and Implementation
Because of the significant social and economic disadvantages created by the denial of in-state tuition rates to undocumented residents, in likely violation of the Equal Protection Clause, we recommend that Congress do the following:
- Hold hearings on the constitutionality of state policies denying in-state tuition benefits to undocumented residents but not to similarly situated citizens or legal permanent residents.
- Pass federal legislation requiring states to extend in-state tuition benefits to all residents equally, regardless of immigration status, and repealing Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act.
- In the preamble to the legislation, locate Congressional authority to pass the legislation in the Enforcement Clause of the 14th Amendment.
The constitutional necessity and practical advantages of this policy have been well covered above. Furthermore, a national standard requiring all states to extend in-state tuition rates equally is preferable to a patchwork of state-by-state extension for three reasons. First, a national policy comports with the role of the federal government to enforce the Equal Protection Clause of the 14th Amendment. As articulated above, passing federal legislation which repeals the adverse provision of the IIRIRA would deprive reticent states of one argument against the constitutional permissibility of in-state tuition denial. Second, a federal standard would mitigate any potential magnet effects arising from uneven tuition rules between states. Because graduates of state universities are free to move wherever they like, a state-by-state arrangement would impose greater costs on states which are making greater contributions to the national economy. But a federal standard would ensure that the initial investment in undocumented residents is shared equally across all states, since all states stand to benefit. Finally, it is not unreasonable to expect that such legislation would produce substantial litigation which is likely to reach the Supreme Court. However, if Congress anticipates this result and frames the national legislation in a way that makes clear the symmetry between the circumstances of Plyler and the present circumstances regarding in-state tuition, it will maximize its likelihood of success before the court. By contrast, leaving sympathetic states to navigate the morass of compliance with Section 505 of the IIRIRA, while undocumented residents of less compassionate states are hung out to dry entirely, is the least consistent and least favorable arrangement of federal and state law. Consequently, federal legislation requiring all states to extend in-state tuition rates to undocumented residents would be the most efficient way to improve social and economic outcomes across the board, while ensuring that the Equal Protection Clause of the 14th Amendment is respected in full.
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