By Ellen Badger, Bob Ericksen and Stephen Yale-Loehr
Note: This article is an expanded version of an article written by Ellen Badger and Stephen Yale-Loehr that appeared in the May 15, 2000 edition of Bender’s Immigration Bulletin. It contains material used by the authors for a presentation at the NAFSA: Association of International Educators National Conference, May 2000 in San Diego, California. The views presented in this article do not necessarily represent the views of the authors’ employers and should not be construed as formal legal advice.
Introduction
When we first discussed this topic as a conference presentation, we wanted to look at both the myths and the realities of undocumented aliens and their attendance at U.S. colleges and universities. We decided that the best way to begin was to examine pertinent immigration case law, the Immigration and Nationality Act (INA), written commentary by the U.S. Immigration and Naturalization Service (INS), and actual campus practices.
As research for this article we consulted the Code of Federal Regulations (C.F.R.), particularly 8 C.F.R. § 214.3(g) and 8 C.F.R. § 214.4; the Illegal Immigration and Immigrant Responsibility Act of 1996 (IIRIRA) sections 505-507; articles, publications, university administrative practices, INS memoranda, and case law. See the bibliography at the end of this article.
An article in the June 22, 2000 The Wall Street Journal entitled “Undocumented Students Are Guaranteed K-12 by Law, but College Isn’t Always So Easy” estimates that about 1.5 million undocumented aliens in the U.S. are children under 18. About 50,000 graduate from U.S. high schools each year.
A May 19, 2000 Los Angeles Times article entitled “Illegal Immigrants Enter Twilight Zone as Teenagers” details the plight of many undocumented students who aspire to pursue higher education and find themselves ineligible for the benefits of financial aid programs. As the article states, “They have all of the expectations of U.S.-born children, but a fraction of the opportunities…For them, coming of age with dubious legal status is a headache, a heartache, and a Kafkaesque legal labyrinth.” These are precisely the young people we are writing about in this article.
As a reminder that this remains a volatile issue, the following “Letter to the Editor” appeared in the May 27, 2000 edition of the Los Angeles Times: “In the Times’ typical fashion, your front-page story [on May 19] on teenage illegal immigrants possibly losing their status as they reach adulthood is supposed to make us feel sorry for these young people. My question is, if they are so intelligent as to be receiving scholarships to Ivy League schools, why are they not smart enough to obey the laws of this country?”
As these stories show, the debate continues. We try to clarify some of the issues below.
Some Definitions
We begin by defining our terms. An undocumented alien is a foreign national who: (1) entered the United States without inspection or with fraudulent documents; or (2) entered legally as a nonimmigrant but then violated the terms of his or her status and remained in the United States without authorization. Therefore, this term also applies to overstays.
In our professional capacities, we are often asked if an undocumented alien is eligible to attend a U.S. college or university. In trying to craft a responsible answer to such a question, there are multiple perspectives, based on an understanding of immigration law, education law, state law, the federal Family Educational Rights and Privacy Act (FERPA), ethics, and campus institutional policies. The challenge is to balance all of these considerations in an area that has few real answers. For those of us employed by U.S. colleges and universities, a further challenge is to offer guidance on this subject while maintaining that delicate balance between the quasi-enforcement role required by federal regulations and the helping role that is basic to the relationship between international educators and students.
Federal Law, State Law, and the Right to Attend Public Colleges and Universities
No federal law prohibits undocumented aliens from attending public colleges or universities. Plyler v. Doe, 457 U.S. 202 (1982), held that it was illegal for a state to deny school-aged undocumented aliens the right to a free education. The Supreme Court relied on the equal protection doctrine, which prohibits a state or the federal government from denying equal protection of the laws to any “person” (not just U.S. citizens).
As yet, no federal law has overruled Plyler. The closest provision is IIRIRA § 505, which prohibits states from providing a post-secondary education benefit to an alien not lawfully present in the United States on the basis of the alien’s residence in their state unless the state would also provide the same benefit to a citizen or national residing in another state. Translated into plain English, this provision appears to bar public colleges from charging undocumented aliens an in-state tuition rate, since they would be treated more favorably than out-of-state residents who are U.S. citizens. We discuss section 505 in more detail below.
No state law prohibits undocumented aliens from attending public colleges or universities. California is the only state to have attempted this so far, in Proposition 187. Among other things, section 8 of that proposition would have denied post-secondary education to undocumented aliens. But a federal court struck down Proposition 187, holding that the state law contradicted federal law and thus was “preempted” by federal law. League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995); 1998 U.S. Dist. LEXIS 3418 (C.D. Cal. Mar. 13, 1998). The Supremacy Clause of the U.S. Constitution states that federal law is the supreme law of the land. If Congress has effectively regulated in an area, states cannot enact laws that deviate from the federal one.
In spite of efforts in California to bar undocumented students from attending its public colleges and universities, undocumented students are still permitted to do so. California’s state education code allows only the use of admissions requirements as criteria for enrolling students. On a practical level, however, the classification of undocumented students as non-residents for fee purposes essentially closes the doors to a public education for nearly all undocumented students.
Assuming that neither federal nor state laws prohibit undocumented aliens from attending public colleges or universities, we move next to considering whether public colleges or universities may nevertheless institute a policy barring undocumented aliens from enrolling. Under the preemption doctrine as interpreted by the federal courts, we believe the answer is probably “no,” based on the Proposition 187 case mentioned above.
Public university officials frequently find themselves challenged by this issue. In some states, it is very difficult to get clear and accurate “historical” information about such policies, or to find something in writing in a university publication or website. We attribute this to the volatile political nature of the issue. As an official told one of the authors off the record, “The public can accept the enrollment of foreign students when they learn that they pay high non-resident fees. However, the public cannot stomach the idea that the university is enrolling undocumented “illegal” students, even at inflated fees.” No official contacted by the authors was able to share a count of the number of students enrolled on a particular campus who would be considered undocumented. And, there has probably been a deliberate (and probably wise) decision not to maintain records on undocumented students.
Bottom line, undocumented students are treated as non-resident students. Essentially, this has accomplished the goal of the proponents of Proposition 187 because the financial burden posed by non-resident fees makes it impossible for most undocumented students to afford attendance at a public college or university.
Private institutions may theoretically be able to legally prohibit undocumented aliens from enrolling. But most private institutions nevertheless are subject in some way to state or federal law because they receive state or federal funding, e.g., for financial aid purposes. The question is whether private institutions could become subject to a state or federal challenge if they prohibit undocumented students from enrolling.
We must also consider the equal protection provision of the fourteenth amendment, Title VI of the Civil Rights Act of 1964, and your state’s human rights law, which may also apply. It could be argued that even private institutions, if they receive federal funds for financial aid for example, must comply with the laws mentioned here. To comply with federal and state laws, public institutions must provide equal access in all programs and services without regard to race, color, sex, religion, age, disability, marital status, and in some cases sexual orientation or national origin. Employees of private institutions should ask legal counsel to determine whether their institution is subject to any of these laws. Moreover, even if it is, you should consider whether prohibiting undocumented aliens is discrimination on the basis of national origin.
As a purely legal matter, barring all undocumented aliens from attending your school may be considered alienage discrimination, which is slightly different from national origin discrimination. For example, assume a factory owner refuses to hire Mexican-Americans to work at his factory. That’s national origin discrimination. If he refuses to hire any aliens to work at the factory (not just Mexicans), that is alienage discrimination. Title VII of the Civil Rights Act of 1964 only prohibits national origin discrimination, not alienage discrimination. We have found no cases where courts have determined whether Title VII bars prohibiting undocumented aliens from attending a college or university.
If an institution has a policy barring admission based on immigration status or lack thereof, the institution’s legal counsel should review that policy.
Undocumented Aliens and Resident Tuition Benefits at Public Colleges and Universities
As mentioned earlier, IIRIRA section 505 provides that no state shall provide a post-secondary education benefit (including in-state tuition) to an alien not lawfully present in the United States on the basis of the alien’s residence in their state unless the state would also provide the same benefit to a citizen or national residing in another state. This provision applies to benefits provided on or after July 1, 1998.
There are no regulations implementing this provision, even though it technically took effect July 1, 1998. Thus, we do not know whether the term “an alien not lawfully present” is the same, for example, as “unlawful presence” under INA § 212(a)(9)(B). Or it could mean anyone out of status. We will also have to wait until regulations are published to know whether the INS will first determine whether someone is not lawfully present, or whether school financial aid administrators are supposed to make that determination on their own.
Most public institutions make their tuition policies available for ready reference. For colleges in the State University of New York (SUNY) system, the SUNY Administrative Procedures Manual item 010.1 sets forth the SUNY policy on establishing residency for tuition purposes. The SUNY policy is probably like many state university policies. It provides that a person whose domicile has been in New York state for 12 months or longer may qualify for in-state tuition as a NY resident. The policy distinguishes between residency and domicile. A person may have many residences but only one domicile. A domicile is a fixed permanent home to which a person intends to return. Non-immigrants admitted to the United States in categories that prohibit them from establishing U.S. residence are not eligible for in-state tuition at SUNY. This is most non-immigrants, but SUNY does make exceptions for students in the A, E, G, I, and L nonimmigrant visa categories who can prove residence in New York.
Section VII of the SUNY policy was updated in June 1998 to reflect IIRIRA section 505. Until that time undocumented aliens could qualify for in-state tuition, although many SUNY campuses did not permit it. No more. Section VII now states that “students who are unable to present valid documentation of their alien status are not eligible for in-state tuition rates.” The section basically paraphrases IIRIRA section 505.
The City University of New York (CUNY) is one of the few public universities that has a policy of granting undocumented aliens in-state tuition rates. Despite the existence of IIRIRA section 505, CUNY will still grant in-state tuition to out of status aliens who can prove New York state residency. Until INS publishes regulations that implement IIRIRA § 505, CUNY’s policy remains in effect.
It is unclear whether IIRIRA section 505 is unconstitutional. Even before IIRIRA section 505, a California appellate court ruled in 1990 that the University of California could legally discriminate against undocumented aliens as to tuition rates. Regents of the University of California v. Superior Court of Los Angeles County, 225 Cal. App. 3d 972, 276 Cal. Rptr. 197 (Cal. Ct. App. 2d Dep’t 1990). The court distinguished between a ban on admitting undocumented aliens and simply forbidding them to be eligible for in-state tuition. Moreover, the preemption doctrine discussed above does not apply here, because the federal government itself enacted section 505, not a state government.
The history of non-resident tuition rates for undocumented aliens in California is quite interesting. In the early 1980’s a group of undocumented students in Alameda County, California challenged the refusal by the California State University (CSU) and University of California systems to recognize them as California residents. In 1985, a judge ruled that differentiating between citizens and undocumented students for tuition purposes violated the equal treatment clause of the California constitution. Leticia A. v. Board of Regents, No. 588-982-5. According to the Leticia A court, alien status does not affect residency status (except of course, perhaps paradoxically, for legal non-immigrants such as F-1 students). California international students noticed this immediately and often commented on what they saw was inequitable treatment. Enter illegally, pay resident fees. Enter legally, pay non-resident fees.
To get an idea of California resident vs. non-resident fees; residents pay approximately $1000 per semester for all their fees, when enrolled as full-time students. Non-residents pay this same basic fee, but, in addition, pay $246 per unit of coursework.
In 1990, a Los Angeles Superior court judge overruled Leticia A. Regents of University of California v. Superior Court, 225 Cal. App. 3d 972. This “Bradford decision,” as it became known because of the person who brought the case, denied non-eligible, non-citizens California residency for tuition purposes. The decision prompted the University of California, the Community College System, and the California Student Aid commission to deny state financial aid and residency classification to this population. Since the California State University was not a defendant in the Bradford case, the Chancellor’s office decided to continue granting residency and state aid to qualifying non-eligible, non-citizens based upon the Leticia A decision.
The CSU system was subsequently sued in a taxpayer-initiated suit known as the “AAW” case in which they were seeking to have the Bradford decision imposed on the CSU. They were successful and the CSU began charging undocumented students non-resident fees in the mid-1990s.
A number of efforts were made were made to counter this decision, including a legislative effort known as the Polanco bill. Then Governor Pete Wilson vetoed the Polanco bill.
The curious “loophole,” at least in the CSU, is that the student’s residency status is determined by the parent if she or he is under 19 at the time of admission. Therefore, an undocumented student, under 19, newly admitted, whose parent can establish California residency will be able to be admitted as a resident student. This option, as you could imagine, is available to few students who need it.
Another curious fact. An official shared with one of the authors that due to the timing of the change of residency eligibility requirements, this year’s graduating seniors is the last group that will include undocumented students who benefited from being classified as residents. Now these students will face a new set of challenges as they enter the workforce for professional positions. They do not have the appropriate documentation to be legally employed.
Undocumented students are generally from low-income families. College admissions counselors have shared the stories of students and their parents crying in their offices- students who have lived in the U.S. most of their lives, many of whom are outstanding students, some even valedictorians of their high school classes. Their educational opportunities cease or shrink dramatically at completion of public high schools.
Undocumented Aliens and INS Authorization to Issue I-20s
Enrolling undocumented aliens at an institution authorized by the INS to enroll F-1 or M-1 students does not jeopardize that authority. The INS regulations at 8 C.F.R. § 214.3(g)(1) require an approved school to keep records containing specific information and documents relating to each F-1 and M-1 student to whom it has issued an I-20 form. No such reporting requirement exists for undocumented students. INS regulations at 8 C.F.R. § 214.4(a) allow the INS to withdraw a school’s approval to issue I-20s for a variety of reasons. But none of those reasons relate to having undocumented aliens on campus.
IIRIRA section 507 requires states and higher education institutions to transmit to the INS copies of documents they accept from individuals verifying the individuals’ citizenship or alienage status, or information from such documents. But this is only for applicants for post-secondary financial assistance. It does not concern enrollment issues, so it’s not really relevant to the matter of undocumented aliens. Moreover, like section 505, there are no regulations implementing section 507 yet.
Undocumented Aliens and Campus Codes of Conduct
The code of student conduct at most universities explicitly requires students to abide by federal and state laws. But the fact that a student is apparently in violation of federal law by being illegally in the United States should not constitute a breach of the code of student conduct. There is no requirement for an admissions officer or international student adviser to inform the dean of students or other appropriate university authority of the matter.
Why not? As a legal matter, it depends on whether the designated school official (DSO) must notify the college of the apparent breach of law. One question here is whether the code of student conduct requires college administrators to report breaches of the code. We say no, and offer the following analogy.
If a student runs a stop sign at my university, the student violates state law. Does the student have a duty to turn him or herself in? Does another student have a duty to turn the student in if he/she sees the student run the stop sign? If the DSO sees an international student run a stop sign, does he/she have a duty to report the student for violating the code of student conduct? Of course not. Perhaps this analogy seems silly, but it does point out the issue. But if the situation is more serious, such as learning that a student is undocumented, do/should the answers change?
Remember that DSOs never really “know” an international student’s immigration status. The student might be applying for asylum or temporary protected status (TPS) or some other status that will make the student authorized to remain in the United States. From an enrollment standpoint, it is not the DSO’s duty to investigate.
One also has to consider university policy. The purpose of including a statement in student codes of conduct that students must abide by federal and state laws was not to deputize the entire university staff to be on the look-out for transgressors. Instead, it provides a means for campuses to respond to egregious behavior that may pose a threat to the health and safety of the campus community. If this question is asked in the context of knowing that a student has no legal status but is enrolled, then we need to consider what adverse impact, if any, this student’s presence has on the institution. Will the institution lose federal or state aid by enrolling such a person? No. Will the institution lose the right to enroll F-1 or J-1 students and issue appropriate visa documents? No. Therefore, in our view there is no need to report the student to university authorities.
The view of one CSU college admissions office is that it is strictly a matter of determining to whom the benefit of being classified as a resident belongs. This admissions office uses a one-page residency questionnaire. If anything on this questionnaire alerts the staff to doubts about eligibility, the individual will be asked to provide additional documentation. Students have the right to appeal residency determination decisions to the Office of Legal Counsel of the CSU.
Undocumented Aliens and On-campus Employment
The matter may change if one learns that an undocumented alien is employed on campus. A staff member may think that he or she has a responsibility to contact the campus office employing that student. The legal question is whether a DSO, as an employee of the school, has an obligation to let his or her employer know that someone may not be authorized to work. But INS regulations do not require an employee to tell their employer anything. 8 C.F.R. Part 274A is silent on this issue.
Some educators have asked whether reporting such a student creates an issue under the Federal Family Educational Rights and Privacy Act (FERPA). Sandra Casey’s article (see bibliography) states that FERPA generally prohibits disclosure to third parties of any personally identifiable information from a student’s records without student consent. 20 U.S.C. § 1232g. Often, there’s a great deal of confusion regarding where FERPA begins and ends. FERPA was designed to do three things: (1) give students access to their educational records; (2) give students the ability to challenge information in their educational records; and (3) allow students to control access to their educational records by third parties. Excluding medical records, which are considered separate from educational records, it’s helpful to count the “parties” involved. The student is the first party, the educational institution is the second party, and everyone else constitutes the third party. Thus, within an institution, information well beyond what we refer to as “directory” information can be shared among staff if there is a legitimate educational interest, or a “need to know” by authorized university personnel.
While nothing in INS regulations requires a campus employee to inform an office on campus if the employee learns that someone not eligible to work is employed there, there is another issue. An employee would feel obligated to let the appropriate office know if they were employing someone who, if the employment came to the attention of the INS, might subject their employer to civil penalties. If it came to light later that the employee had known of the employment, yet did nothing to warn the appropriate office to seek valid proof of employment eligibility, what would be their defense to their employer?
So, we return to the matter of “adverse impact.” If a DSO becomes aware that a student may be employed illegally on campus, we believe that there is the potential of an adverse impact to the institution if the DSO does nothing. Civil penalties can be imposed on an employer who hires individuals who are not eligible to work. Many INS offices use the definition of “employer” as defined in 8 CFR 274a.1 to mean anyone affiliated with the college campus. Thus, if someone at the college had constructive knowledge of potential ineligibility for employment, the only way the institution could defend itself would be to be sure that the applicant had properly completed the I-9 form. Thus, the employer would have a “good faith” defense unless the government could show that the employer had “constructive knowledge” of illegal employment. So, in this instance, we recommend that the DSO contact the appropriate campus payroll office, ask that the I-9 form be re-checked, and, if necessary, have the student come in and complete a new one with new evidence. The student should always be given the opportunity to refute the claim of illegal employment by presenting evidence of work authorization.
Ethical Considerations
Professional educators also need to consider their ethical duty to the student, and how it applies in situations involving undocumented aliens. NAFSA: Association of International Educators, the national professional organization representing those engaged in international educational exchange, has a professional code of ethics. The code states, among other things, that “members shall maintain the confidentiality, integrity, and security . . . of all communications with students, [and] secure permission of the student or scholar before sharing information with others inside or outside the organization, unless disclosure is authorized by law or institutional policy.” (Emphasis added.) The code also states that members should “balance the wants, needs and requirements of program participants, institutional policies, laws and sponsors, having as their ultimate concern the long-term well-being of international educational exchange programs and participants.”
In the absence of a formal institutional policy, there may be concern that notifying an office at your school of a student who may be working without authorization would violate the NAFSA code of ethics. We asked the NAFSA national committee on Ethical Practice for their comments. Not surprisingly, the committee found this to be a difficult matter to resolve. There was no consensus. Some members believed that the advisor has the right to report the international student, while others believe that the advisor should not. Ultimately, disclosure could be justified or it could be precluded, depending upon the section of the code cited and its interpretation.
One of the authors, who is a member of the NAFSA Committee on Ethical Practice, was at the meeting where this issue was discussed. He observed that members of the committee responded in the way most of us respond to ethical issues. First came the “gut” reaction. On that one, committee members were quite split. Several people responded by saying “no way” would they inform other university officials, because it’s privileged information. Several others gave quite the opposite reaction, “Well, it’s my obligation as a school official. I’m not accusing anyone of a crime; I’m simply informing an office that the individual student MAY not be eligible for the benefit of working on campus. Our campus can be fined huge sums of money for employing students who are not eligible to work. I would definitely report my concerns.”
Then members of the Committee reviewed the NAFSA the Code of Ethics. Unfortunately, as is often the case, the Code does not give precise answers. Section 3 of the code states that we are to “understand and protect the civil and human rights of all individuals . . . and not to discriminate on the basis of immigration status.” It also tells us to “maintain the confidentiality, integrity, and security of student records and of all communications with students. Secure permission of the student or scholar before sharing information with others inside or outside the organization, unless disclosure is authorized by law or institutional policy, or mandated by previous arrangement.”
The last item made it impossible for Committee members to make a ruling on this issue. The Committee on Ethical Practice does not give legal advice. It only rules on ethical issues. Depending on one’s institution and differing legal interpretations, the last item could constitute permission for the school official to report the on campus employment of a suspected undocumented student.
Ethics will always remain a gray area, that, often, is interpreted by the individual NAFSAn after some careful contemplation, reading and re-reading of the Code of Ethics, and consultation with respected colleagues. Section one of the code is the section many members refer to the most when people are wrangling with legal issues:
“NAFSA members have a responsibility to balance the wants, needs, and requirements of program participants, institutional policies, laws, and sponsors, having as their ultimate concern the long term well being of international educational exchange participants and programs.”
Reporting Requirement to INS
As mentioned earlier, 8 C.F.R. § 214.3(g)(1) requires schools to monitor students in nonimmigrant status, such as individuals in F or M status, or risk losing certification to admit them. But there is no such requirement for undocumented aliens.
Undocumented Aliens and Federal and State Financial Aid
A DSO who learns that an undocumented alien student is receiving federal or state financial aid may feel that they have a responsibility to contact their campus financial aid office and report the matter. The INS regulations do not require a DSO to report to the their campus financial aid office the names of any undocumented alien receiving federal or state financial aid. IIRIRA § 507 requires states and higher education institutions to transmit to the INS copies of documents they accept from individuals verifying the individuals’ citizenship or alienage status, or information from such documents. Although the statute itself does not specify the purpose for which this documentation is to be used, the conference report makes clear that it is for applicants for post-secondary financial assistance. Like section 505, there are no regulations implementing section 507. So one legal answer to this question is that financial aid officers may have a duty to report to the INS (after regulations are published). However, the DSO has no duty under INS regulations to tell the financial aid office if he or she knows that an undocumented alien student is receiving federal or state financial aid.
As background, under title IV of the Higher Education Act of 1965, only U.S. citizens and eligible non-citizens can receive federal student financial aid. F and J students and scholars, for example, cannot receive federal student financial aid. Neither can undocumented students.
The Department of Education uses two screening techniques to determine which financial aid applicants are ineligible. First, it checks all financial aid applicants for U.S. citizenship, using Social Security Administration records. Second, for applicants who are not U.S. citizens, the Department of Education checks INS records to determine whether the applicant meets eligibility criteria. But nothing appears to require that an employee report to the financial aid office that a student is illegally receiving financial aid.
While there may be no legal requirement to contact the financial aid office, we return again to the issue of adverse impact. If a student falsifies visa information on a financial aid form to obtain federal or state financial aid, receives it, and a DSO learns of it but does nothing, there is potential adverse impact to the institution. Should there be in an audit, and the matter comes to light, the DSO may have exposed the institution to potential financial liability, in that the school would be required to pay the money back from its own budget to the appropriate government entity. As with the example of the discovery that an undocumented alien is working on campus, we recommend giving the student the opportunity to refute the claim by presenting evidence of eligibility.
Also consider the May 26, 1999 Federal Register, INS Notice and Proposed Rule on “Field Guidance on Deportability and Admissibility on Public Charge Grounds.” One part of that defines what benefits may be considered for public charge purposes and what benefits can’t. The section of benefits that cannot be considered for public charge purposes includes “[e]ducational Assistance, including benefits under the Head Start Act and aid for elementary, secondary, or higher education.” 64 Fed. Reg. at 28,693. It now gives aliens the right to many benefits they did not have before, without having to fear becoming a public charge. Those benefits include Medicaid, Food Stamps, and many others. Id. However, the information does note that not all categories of aliens are eligible to receive all types of benefits. So, the rule did not define what categories of aliens can receive benefits. Instead, it defined what sorts of public benefits are part of and are not part of the public charge definition.
That INS proposed rule and field guidance seem to help. But the general rule is that undocumented aliens are not entitled to most public benefits, except emergency aid. So the new INS rule doesn’t answer our question of whether a DSO has a duty to report a student who is illegally receiving financial aid.
This brings us back to the difficult matter of balancing the goals of helping all students, no matter what their status, with wanting to help other offices on campus do their job where there is the potential for an adverse impact on the institution.
Undocumented Aliens and Non Need-Based Scholarships
Many people think that undocumented aliens are eligible for non need-based scholarships. There is nothing in print on the subject, probably because there isn’t any evidence that giving money to anyone is illegal as long as it is not in return for services or labor. The definition of employment for purposes of immigration law is at 8 C.F.R. § 274a.1. That regulatory definition comes directly from the statute. There is no other definition. There is also no problem in awarding scholarships to undocumented students on the basis of need as long as private, rather than public, funds are employed. This is because public money, such as federal and state assistance, is generally need-based and includes eligibility restrictions based on U.S. citizenship or permanent residency.
Undocumented Aliens and Intensive English Programs
If the ESL program is part of a public institution, then state and federal constitutional law principles apply. See our discussion above. If the intensive English program is at a private school, we would be concerned of a possible state or federal legal challenge if the school prohibited undocumented aliens from enrolling if the school receives any form of state or federal funds.
We repeat our earlier recommendation; if an institution has a policy barring admission based on immigration status or lack thereof, the institution’s legal counsel should review that policy.
The Right of an Undocumented Alien to Attend School
Some would say that denying admission, access to scholarships, or access to an intensive English program denies a right to another human being. On the legal side, the public/private distinction may be important here. A public school may be subject to federal and state constitutional and statutory law considerations, such as equal protection. A private school may declare itself exempt from those, although we would question whether that effort would be successful.
On the policy aspect of this issue, if the applicant meets the academic requirements for your institution, you should admit the student. If the scholarship is unrestricted, you should award the scholarship. Other than a school’s reporting obligations to F and J status individuals, the student’s immigration status is a matter between the student and the INS. To quote from an INS cable of March 14, 1994:
“The effect of Plyler [v. Doe] on post-secondary education is not clear; however, Congress has not adopted legislation which would permit states and state-owned institutions to refuse admission to undocumented aliens or to disclose their records to the Immigration and Naturalization Service.”
That statement is still true today.
Some would say that by not permitting an undocumented alien to register for classes, we are denying that person his or her civil right to study. Legally, the question is whether people have a legal right to university education. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), clearly states that education is not a fundamental right. But Plyler v. Doe held that Texas could not deny undocumented school children an opportunity to attend public elementary and secondary schools. Although Plyler dealt with children and teenagers, not college students, the Court’s reasoning for imposing an intermediate scrutiny test in that case could be applied to a public college barring admission to undocumented aliens. First, you could argue that in today’s high-tech world, where people need an advanced degree for most good jobs, undocumented aliens would be similarly disadvantaged to the school-aged children in Plyler if they couldn’t go to college. Second, many undocumented college-aged students arrived in the United States when they were small children. Thus, like the children in Plyler, they are here through no fault of their own.
On the other hand, a court could also say that there is a difference between depriving a child a basic education that teaches reading and writing and denying an adult an opportunity to obtain a college degree. So the law on this issue is unclear.
At many institutions, to deny the student admission would be a violation of the school’s equal access policy.
Undocumented Aliens and Criminal Penalties for Those Who Assist Them
There are criminal penalties for harboring fugitives, for aiding and abetting persons in violation of laws, and so forth. We explored whether the harboring statutes apply to a university or its individual agents such as admissions officers and international advisors.
As for the harboring issue, admitting an undocumented alien to your school or letting an undocumented alien live on campus is not harboring. INA section 274(a) makes it a crime to bring aliens into the United States and to harbor or shield them from detection. The section also applies to people who aid, abet and encourage aliens in gaining unlawful entry to the United States. We have found no cases involving the harboring of undocumented aliens on a college campus. Colleges are neutral places of learning. Allowing undocumented aliens to become students is not the same as taking affirmative steps to conceal their presence. So we wouldn’t worry about harboring issues.
Undocumented Aliens as “Domestic” Students
A student who is an undocumented alien who has lived in the United States for years, attended a public high school, and graduated, is sometimes treated by educational institutions as a “domestic” student. But for immigration purposes the student is still an “alien.” For educational purposes, the student might be a domestic “resident” for admissions purposes in terms of evaluation of academic credentials, but not for the purpose of determining tuition charges or for financial aid eligibility. Under IIRIRA section 505, the student apparently cannot qualify for in-state tuition, although there are no regulations implementing that provision.
Undocumented Aliens and Their Relationship with Campus International Student Offices
Staff of campus-based international student offices may ask whether it is appropriate for the DSO to serve undocumented aliens. Since the services and benefits the INS offers are only available to students in status, they may wonder what, other than a sympathetic shoulder, a DSO can offer an undocumented alien. However, most international student offices provide programs and services that go far beyond the signing of visa forms, and are available to any student.
The matter of undocumented aliens at U.S. colleges and universities is a good policy question. If a board of trustees at a public university decides to adopt a policy denying undocumented aliens admission to the school, constitutional alarm bells immediately go off in our minds. But the law in this area is murky, as indicated above. If a board of trustees at a private institution adopted the same policy, we would wonder, what would their legal counsel say?
Conclusion
As this article demonstrates, it is not easy to understand when and how undocumented aliens may attend U.S. colleges and universities. The law is not clear on this issue. Moreover, international student advisors and attorneys must balance multiple perspectives involving immigration law, education law, state and federal constitutional law, ethics, and campus institutional policies. As the number of undocumented aliens wanting to attend U.S. post-secondary educational institutions increases, the issues will only grow more acute.
Research Tools and Bibliography
Cases:
League of United Latin American Citizens v. Wilson, 1998 U.S. Dist. LEXIS 3418 (C.D. Cal. Mar. 13, 1998)
League of United Latin American Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995)
Leticia A. v. Board of Regents, No. 588-982-5 Cal. Super. Ct., Alameda County, May 5, 1985 digested in 62 Interpreter Releases 639-41 (July 12, 1985)
Plyler v. Doe, 457 U.S. 202 (1984)
Regents of the University of California v. Bradford, 276 Cal. Rptr. 197, 225 Cal. App. 3d 972 (1990)
Regents of University of California v. Superior Court, 225 Cal. App. 3d 972 (Cal. App. 2d Dist. 1990).
Toll v. Moreno, 458 U.S. 1 (1982)
Statutes:
IIRIRA §§ 505-507
Regulations:
8 C.F.R. § 214.3(g)
8 C.F.R. § 214.4
Miscellaneous:
Advisor’s Manual of Federal Regulations Affecting Foreign Students and Scholars. § 6.5 NAFSA: Association of International Educators. (1998)
Badger, Ellen & Sandra Casey, New Lessons to Learn: Major Student Related Provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 16 Immigration Law Report 175 (Aug. 1, 1997)
Badger, Ellen & Stephen Yale-Loehr, They Can’t Go Home Again: Undocumented Aliens and Access to U.S. Higher Education, Bender’s Immigration Bulletin V.5 No. 10 (May 15, 2000)
Casey, Sandra, Dealing with Confusion: Admission of Undocumented Aliens into Public Postsecondary Institutions, 15 Immigration Law Report 137 (June 15, 1996)
Golden, Daniel, “Undocumented Students are Guaranteed K-12 by Law, but College Isn’t So Easy.” The Wall Street Journal (June 22, 2000).
INS General Counsel Legal Opinion No. 93-74, Documentation and Registration of Nonimmigrant Students (Sept. 21, 1993) (available on Matthew Bender’s Immigration Authority CD-ROM)
INS Memorandum, Revised School Approval Policy and Procedures (Jan. 14, 1994), reproduced in 71 Interpreter Releases 361 (Mar. 14, 1994)
Kaplin, William A. and Barbara A. Lee, The Law of Higher Education: A Comprehensive Legal Guide to Legal Implications of Administrative Decision Making (3d ed. Jossey-Bass Publishers 1995)
O’Connor, Anne Marie “Illegal Immigrants Enter Twilight Zone as Teenagers.” The Los Angeles Times (May 19, 2000)
U.S. General Accounting Office, No. GAO/HEHS-97-153, Higher Education: Verification Helps Prevent Student Aid Payments to Ineligible Noncitizens (Aug. 6, 1997)