college access for undoc students

8/8/2019 College Access for Undoc Students

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A M E R I C A N A C A D E M I C - V O L U M E H R E E 8 1

Posts co da y Ed cat o al Acc ss o U doc t dSt d ts: Oppo t t sa d Co st a tsJennifer L. Frum

Introduction

Each y a , U.S. h gh schools g ad at a st at d 65,000 doc t dst d ts, o who o ly 5 p c t v att d coll g .1 Fo ost doc t dg a ts, th ajo ba s to posts co da y acc ss a both a c al a d

l gal. Fo sta c , 39 p c t o doc t d ch ld l v b low th d alpov ty l v l (co pa d to 17 p c t o at v -bo ch ld ) wh l th av ag

co o a doc t d g a ts a ly s 40 p c t low tha thato th at v -bo a l s o l gal g a t a l s.2 Altho gh stat s a

q d to p ov d doc t d st d ts acc ss to p bl c K-12 d cat o ,

o c th y ach coll g ag s ch st d ts a so sp cts aba do d by thp bl c d cat o al syst . Fo sta c , v a doc t d st d t wasb o ght by h s/h pa ts to th U t d Stat s as a yo g ch ld, g ad at d oa U.S. h gh school, a d s acc pt d to a p bl c coll g o v s ty, 40 stat sthat st d t s q d to pay o - s d t o o t-o -stat t t o , wh ch costs aav ag 140 p c t o tha s d t t t o .3 Eq ally, d d al law th ssa doc t d st d ts a p oh b t d o c v g d al a c al a d

o th d cat o . T s p oh b t o , wh ch appl s to doc t d st d tsb t ot to th co t pa t o -c t z s who a l gal p a t s d ts,p v ts doc t d st d ts o c v g P ll G a ts a d pa t c pat g

d ally d d wo k st dy p og a s. F th o , v th y co ld a o dto att d coll g o v s ty, s ch st d ts doc t d stat s a s th y ca ot l gally wo k a t g ad at o d c t law. T s s a oth st ct othat d st g sh s doc t d st d ts o th co t pa t doc t d

o -c t z s, who ay obta p ss o to wo k l gally th U t d Stat s.

G v th s z o th doc t d g a t pop lat o th U t d Stat s,ow st at d to b so 11 ll o 4, a s g ca t p bl c pol cy d bat


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8 2 A M E R I C A N F E D E R AT I O N O F T E A C H E R S

has emerged concerning the main issue o whether undocumented studentsshould be entitled to attend public postsecondary institutions, and the narrowerissues o whether they should be eligible or resident or in-state tuition and who(the ederal government or the states) should have the authority to determine

this, and whether economic and social returns accrue rom investing in undocu-mented immigrants higher education. Within the context o this phenomenono growing numbers o undocumented students graduating rom U.S. highschools, then, in this article I explore two aspects o the issue o undocumentedstudents access to public colleges and universities. In the rst section I examinea number o key court rulings, relevant ederal statutes, recent state legislative ac-tion, and current Congressional proposals impacting undocumented immigrantseligibility to attend public postsecondary institutions and access in-state tuition.I also consider the extent to which these measures may actually improve un-documented students access to public colleges and universities and the way in which current policy a ects the opportunities available to students upon gradu-ation rom college. In the second section, I investigate the economic and non-economic costs and returns o measures to improve postsecondary opportunities

or undocumented students. I also examine whether the economic and socialreturns to higher education accrue in the same way or undocumented students as

or resident students. Finally, I o er a policy option or states, should they wish toimprove educational opportunities or undocumented immigrants.

Te Regulatory Environment Any discussion o the legal issues surrounding undocumented students andhigher education must be situated within the larger debate surrounding unau-thorized immigration in general. As Massey, Durand, and Nolan (2002) note,

U.S. citizens attitudes towards immigrants have varied historically, o ten refect-ing the state o the U.S. economy and other internal political considerations,rather than the realities o the actual migration process. 5 So, paradoxically, evenas the movement o goods and capital between the United States and other na-tions is on the rise, much o the discourse concerning immigration is ocused onseeking to restrict the movement o people across borders and to limit access orimmigrants currently in the United States to social bene ts, including highereducation. It is perhaps more o ten this highly politicized discourse, rather thansound public policy, that has impacted the way in which immigration, particu-larly that rom Latin America, has been legislated, regulated, and litigated atboth the ederal and state levels.


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A M E R I C A N A C A D E M I C - V O L U M E H R E E 8

One o the most important statements to date on undocumented immigrantsaccess to public education was the landmark US Supreme Court case Plyler v.Doe (1982), a case related not to postsecondary schooling but to K-12 education.

In a 5-4 decision, the Plyler Court held that the State o exas could not deny undocumented immigrant children access to ree K-12 public education. Whilethe Court did not explicitly extend the same protections to undocumentedstudents at the college level, Plyler v. Doe is relevant to the debate at hand or atleast two reasons. First, the Court held that states must show that they have acompelling interest in limiting access to education or a particular group, andthat in this case exas had ailed to do so. Indeed, the Court ound that there was no signi cant nancial burden imposed by undocumented immigrantson the state and rejected the claim that preventing undocumented immigrants

rom accessing education would be an efective deterrent to urther illegal im-migration. 6 Second, while holding that education is not a undamental right,the Court stressed that denying K-12 education to undocumented childrenamounted to creating a li etime o hardship and a permanent underclass o individuals. Tis is signi cant, because at the time o the Plyler decision a highschool diploma could very well lead to a well-paying job that could help one

move up the socio-economic ladder. Indeed, Justice Brennans majority opinionis explicit in its declaration o the link between education and social mobility.

oday, though, nearly a quarter o a century later, a high school diploma createsewer opportunities or those entering the labor market. Arguably, the ticket to

social and economic mobility has increasingly become a college degree, withcollege graduates average annual earnings almost double those o high schoolgraduates and nearly three times those o high school drop-outs. 7 While in 1982

the Supreme Court sought to prevent the creation o an underclass o undocu-mented individuals by assuring access to ree public K-12 education, the new educational ticket to the middle class may well be a college degree. 8 By todaysstandards, then, not extending similar protections to undocumented studentsonce they reach college age may create the very socio-economic chasms theCourt had originally sought to avoid.

Beyond Te Plyler Ruling

Te regulatory issues related to undocumented immigrants access to publichigher education emerged rapidly post- Plyler , becoming engul ed in the largerdebate regarding immigration and immigrants access to social services and


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8 4 A M E R I C A N F E D E R A I O N O F E A C H E R S

bene ts. Tis larger debate is part and parcel o a broader shi t in U.S. domesticpolitics and oreign relations ushered in by the Reagan administration and theRepublican-controlled Congress in the 1980s. Domestically, social wel are pro-grams came under attack while relations with other nations came to be ramed

within the context o the Cold War and the war on drugs, both o which requiredstrict control o U.S. borders. During this time immigrants and immigrationincreasingly became synonymous or many with oreign terrorism, invasionso oreigners fooding the border to get access to U.S. wel are bene ts, and thenation increasingly being under siege rom Latin American migrants. 9 How-ever, and somewhat paradoxically, e orts to secure the border actually encour-aged growing numbers o immigrants, once they had success ully crossed, tosettle with their amilies within the United States, as the di culties o makingmultiple crossingsthe pattern in the 1960s and 70sincreased.

Tis politicization o the broader issue o immigration has resulted in a numbero legislative e orts to limit access to certain bene ts, including higher education. A prime example o the latter is Cali ornias controversial 1994 ballot initiativeProposition 187, which would have denied undocumented immigrants almost allsocial services, including access to K-12 and higher education institutions. Te

ederal courts eventually ruled Proposition 187s provisions invalid, with a U.S.district court ( League of United Latin American Citizens v. Wilson, 1998) nd-ing that Cali ornias ban on undocumented students attending higher educationinstitutions was preempted by the Illegal Immigration Re orm and ImmigrantResponsibility Act o 1996 (IIRIRA) and the Personal Responsibility and Work Op-portunity Reconciliation Act o 1996 (PRWORA) (discussed below), both o whichindicated Congresss intention to occupy the eld o regulating higher education

bene ts10

; however, the act that some 59 percent o Cali ornias electorate votedor it highlights how divisive immigration had become by the mid-1990s.

Federa law

In 1996, Congress weighed in on the matter o undocumented immigrants, pass-ing the Illegal Immigration Re orm and Immigrant Responsibility Act (IIRIRA) andthe Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA),both o which are relevant to the issue o undocumented students access to post-secondary education. Hence, according to Section 505 o the IIRIRA:

An alien who is not law ully present in the United States shallnot be eligible on the basis o residence within a State or any


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postsecondary education bene t unless a citizen or nationalo the United States is eligible or such a bene t (in no less anamount, duration, and scope) without regard to whether thecitizen or national is such a resident (8 U.S.C. 1623).

Te Act urther states: A State may provide that an alien who is not law ully present inthe United States is eligible or any State or local public bene t

or which such alien would otherwise be ineligible throughthe enactment o a State law a ter August 22, 1996, which a -

rmatively provides or such eligibility(8 U.S.C. 1621).

For its part, the PRWORA declared that: An alien who is not a quali ed alien is not eligible or any Federal public bene t [including] any retirement, wel are,health, disability, public or assisted housing, postsecondary education, ood assistance, unemployment bene t, or any other similar bene t or which payments or assistance are provided to an individual, household, or amily eligibility unit by an agency o the United States or by appropriated unds o the

United States (8 U.S.C. 1611).

Rather than settling the issue o undocumented students and higher educa-tion, however, the vagueness o these statutes has led to signi cant diferenceso opinion concerning Congresss intent. Generally, though, there is agreementabout two aspects o the laws: 1) neither the PRWORA nor the IIRIRA prohibitpublic postsecondary institutions rom admitting undocumented students; and

2) under these statutes, undocumented individuals are not eligible or publicbene ts that entail actual monetary assistance, such as ederal nancial aidprograms that provide student loans or work study payments. 11 What is notclear, however, is whether the ederal statutes con er on states the authority to decide whether or not to grant in-state tuition to undocumented students.Hence, Michael Olivas (2004) interprets the IIRIRA as giving states the authority to determine state residency or tuition purposes (a state bene t) and assertsthat this state residency (and thus in-state tuition) does not entail a monetary bene t. Similarly, Ruge and Iza (2005) argue that the statutes do not prohibitstates rom granting in-state tuition as long as quali ed out-o -state U.S. citizenscan also receive the same bene t. Others, including the governor o Maryland,


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8 A M E R I C A N F E D E R AT I O N O F T E A C H E R S

a former Wisconsin governor, and a former attorney general of Virginia, though,have cited the IIRIRA as the primary legal barrier to enacting state laws provid-ing in-state tuition to undocumented students. 12

Te state Re pondDespiteor perhaps because ofthe IIRIRAs unclear intent, since 2001 atleast 23 states have considered legislation allowing resident tuition for undocu-mented students, seven states have proposed laws restricting resident tuition forundocumented students 13, and Alaska and Mississippi have implemented legis-lation prohibiting undocumented students from access to resident tuition. 14, 15 Tenstates have enacted laws providing in-state tuition to undocumented students

(see Table 1), with such laws having been crafted to ensure that in-state tuitionis awarded based on attendance and graduation from a state high school ratherthan residency within the state. Because a U.S. citizen also would be entitled toin-state tuition based on this criterion, the ten states argue that their laws con-form to the restrictions placed on them by the IIRIRA and PRWORA. 16

Over the past few years, several judicial tests of such state laws have emerged.For instance, in Equal Access Education v. Merten (2004), a group of undocu-

able 1 : state allowing re ident tuition for undocumented tudent

State and dateenacted Requirements

Eligible orstate

fnancial aidCali ornia - 2001 Must attend CA high school or 3 years and graduate or earn a GED Proposed,

S. B. 160Illinois - 2003 Must attend IL high school or 3 years and graduate or earn a GED NoKansas - 2004 Must attend KS high school or 3 years and graduate or earn a GED NoNebraska - 2006 Must attend NE high school or 3 years and graduate or earn a GED YesNew Mexico - 2005 Must attend NM high school or 1 year and graduate or earn a GED YesNew York - 2002 Must attend NY high school or 2 years and enroll at a state

institution within 5 years o graduating or earning a GEDNo

Oklahoma - 2003 Must attend OK high school or 2 years and graduate or earn a GED YesTexas - 2001 Must attend TX high school or 3 years and graduate or earn a GED YesUtah - 2002 Must attend UT high school or 3 years and graduate or earn a GED NoWashington - 2003 Must attend WA high school or 3 years and graduate or earn a GED No

NOTE. From Krueger, C. (2006, April). In-state tuition for undocumented immigrants. EducationCommission of the States State Notes. Boulder, CO.


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mented students led suit against seven public universities in Virginia, claim-ing that the institutions policies denying undocumented students admission were in violation o ederal law. A US district court, however, ruled that ederallaw permits states to regulate postsecondary admission and so Virginias public

institutions could set their own admissions policies. More recently, a ederaldistrict court in opeka dismissed a legal challenge ( Day v. Sebelius, 2005) to the2004 Kansas law providing in-state tuition or certain undocumented studentsa ter several out-o -state students attending Kansas colleges and universities,together with the anti-immigration group Federation or American ImmigrationRe orm (FAIR), led suit against the governor o Kansas and the president o theKansas Board o Regents, claiming that the Kansas law violated the IIRIRA andthe Equal Protection Clause by discriminating against U.S. citizens who wouldnot be eligible or in-state tuition under Kansas law. Although the court did notofer an interpretation o the IIRIRA, it did nd that the Kansas law does not cre-ate a private right o action and that the plaintifs ailed to show any injury as aresult o the law, though currently the district courts decision is being appealedto the enth U.S. Court o Appeals.

In December 2005, a similar lawsuit was led in Cali ornia Superior Court by

a group o out-o -state college students who were attending or who had at-tended Cali ornias public institutions ( Martinez v. Regents of the University of California, 2005). In this class action suit, the plaintifs claimed that Cali orniaslaw permitting in-state tuition to undocumented students violates both ederal(IIRIRA and PRWORA) and state laws and thus sought reimbursement o non-resident tuition ees and other nancial damages. Te de endants, however,have led or dismissal, claiming, among other things, that no private right o ac-

tion exists and that the plaintifs have sufered no injury as a result o the statespolicy o granting Cali ornia high school graduates in-state tuition while denyingthe plaintifs, who are non-Cali ornia resident U.S. citizens, in-state rates. 17

Recent Congressional Initiatives

Within this context, a number o recent Congressional initiatives to addressundocumented students postsecondary opportunities ofer alternative and,perhaps, more ar-reaching solutions to improving higher education access orthe undocumented population. Since 2001, at least six bills have been intro-duced addressing undocumented students and higher education (see able 2),all o which would have repealed Section 505 o the IIRIRA. Tis is signi cant


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8 8 A M E R I C A N F E D E R AT I O N O F T E A C H E R S

because while the proposed bills would not require states to give undocumentedstudents resident tuition, they would have given states the authority to deter-mine who is a resident or the purposes o determining in-state tuition. Further,all o the proposed legislation, including the Development, Relie , and Educa-tion or Alien Minors (DREAM) Act, would have initiated a process or legalpermanent residence, provided that the undocumented students met certainqualifcations.

Most recently, on May 25, 2006, the Senate passed the Comprehensive Immi-gration Re orm Act o 2006 (S. 2611), Section 621 o which includes provisions

or the DREAM Act o 2006. Like its predecessors, S. 2611 would repeal Section505 o the IIRIRA, thus giving states the authority to decide who is a resident or

tuition purposes. Additionally, DREAM Act provisions o S. 2611 would:Make eligible to start the process o conditional legal permanent residenceundocumented individuals who:

Have been in the United States or at least fve years preceding passageo the law. Are under 16 years o age at the time o entering the United States. Are o good moral character (no criminal record prior to age 16).

Allow individuals who meet the above qualifcations and who have gradu-ated or fnished two years o an undergraduate degree or served two yearsin the armed orces to apply or removal o the conditional basis or perma-nent residence.

Table 2: summary of recent Congre ional bill relating to undocumented immigrant acce to po t econdary education

Date Legislation Sponsors

107th

CongressAugust 2001 S. 1291 Development, Relief, andEducation for Alien Minors (DREAM) Act Sen. Orrin Hatch18 Cosponsors

107 th CongressMay 2001

H.R. 1918Student Adjustment Act of 2001

Rep. Chris Cannon62 Cosponsors

108 th CongressJuly 2003

S. 1545DREAM Act of 2003

Sen. Orrin Hatch47 Cosponsors

108 th CongressApril 2003

H.R. 1684Student Adjustment Act of 2003

Rep. Chris Cannon152 Cosponsors

109 th CongressNovember 2005

S. 2075DREAM Act of 2005

Sen. Richard Durbin20 Cosponsors

109 th Congress

April 2006

H.R. 5131

American Dream Act

Rep. Lincoln Diaz-Balart

16 Cosponsors


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Make undocumented students who adjust their status to law ul permanentresidence eligible or student loans, ederal work study programs, and cer-tain bene ts or armed services members.

Te ate o the DREAM Act, however, may depend on how the highly chargedbroader immigration debate plays out. As this political theater un olds, theissue o resident tuition or undocumented students may well become buriedin the more dramatic debates on increased militarization o the border, tighteren orcement o immigration laws, and the question o amnesty or unauthorizedimmigrants currently in the United States. 18

limitation of state and Federa Initiative

en states have passed laws to extend resident tuition to undocumented stu-dents, with the laws in three o these states including provisions or tuition aid. Although these states are clearly attempting to improve postsecondary oppor-tunities or undocumented students, such laws do not address the limitationsinherent in having undocumented status. For example, they do not remedy the

act that under current ederal law undocumented students are not eligible orany o the $129 billion annually distributed in ederal nancial aid and loans or

postsecondary education. 19 Tis lack o access to ederal unds or postsecond-ary education may represent a signi cant nancial barrier to college or undoc-umented students that even resident tuition cannot ofset.

o understand more clearly how the lack o access to ederal nancial aid may impact undocumented students, a closer look at college costs is warranted.Over the last ve years, the average advertised tuition and ees at U.S. public

institutions has increased 40 percent at our-year institutions and 19 percentat two-year institutions. For the lowest-income amilies, such sharp increasesmean that without access to student aid, the average price o public our-yearcolleges and universities would comprise nearly 29 percent o their total house-hold income and the price o two-year institutions would make up about 11percent. Most students, though, do not end up paying ull price because they receive some orm o ederal, state, or institutional nancial aid; in 2004, 36percent and 44 percent o undergraduate students attending public our-yearand two-year institutions respectively received tuition aid. Tis nancial aid hashelped to ofset college price increases such that rom 1996-2006, the net price(tuition and ees minus nancial aid) increased only $300 at public our-year


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institutions and actually decreased by $500 at two-year colleges. 20 However, be-cause undocumented students are not eligible or ederal fnancial aid and in allbut three cases are not eligible or state aid, these students may fnd that, even with in-state tuition rates, collegeparticularly our-year institutionsmay still

be out o reach.

Te low numbers o undocumented students taking advantage o residenttuition seem to bear this out. 21 For example, o cials in Kansas had predicted370 undocumented students would register or in-state tuition in the frst se-mester a ter it passed its law, but in act just 30 registered, 22 o whom did so atless expensive community colleges. Likewise, in the frst year o New Mexicoslaw, only 41 undocumented students enrolled with in-state tuition. 22 Althoughbetween 2001 and 2006 more than 6,500 undocumented students fled orresident tuition in exas (where the state provides some state-based fnancialaid or undocumented students), 75 percent attended lower-priced community colleges. 23 Moreover, the act that in Kansas and exas students disproportion-ately registered or community colleges raises the question o whether improvedaccess to community colleges or two-year institutions represents su cient ac-cess to the ull array o benefts that a college education provides. Tis concern

is particularly signifcant in the current winner-take-all higher education market where the individual returns to education increase relative to the prestige o theinstitution attended. 24

Te early evidence, then, seems to suggest that providing in-state tuition alonemay not provide su cient fnancial support or undocumented students to pur-sue postsecondary education. Tis is important or two reasons. First, as might

be expected, empirical research shows that lower-income students are muchmore responsive to the price o tuition than are other students. 25 Second, theavailability o fnancial aid, particularly grants, has a much greater impact on thepostsecondary participation o lower-income students than on middle- or high-income students. Tis has signifcant bearings upon whether undocumentedstudents will even attempt to attend college. Tus, while many lower-income,undocumented students have high expectations that they will attend college,these expectations more o ten than not do not match reality. 26 For example, a2003 study o the undocumented and legal immigrant high school populationin Chicago ound that while more undocumented students surveyed had collegeaspirations (80 percent) than did their legal immigrant counterparts (77 percent),


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43 percent o undocumented students indicated that they did not know how they would pay or college, compared to 17 percent o immigrant students withlegal status. 27 Perhaps more troubling is the act that even i undocumentedstudents attend college, their perceptions about the availability o nancial aid

may afect whether or not they integrate into institutions academic and socialsettings and whether they ultimately persist. 28

aking this all one step urther, it is important to recognize that even i undoc-umented students do attend and complete college using state resident tuition,state laws do not address the act that even upon graduation their unauthor-ized status prevents them rom working legally in the United States. 29 Withoutlegal residency, college-educated undocumented immigrants will nd it di -

cult or impossible to enter pro essional positions and thus may be relegatedto lower paying, unskilled positions that they would have obtained without acollege degreeall o which may make them less likely to bother with postsec-ondary education.

At the ederal level, while a DREAM Act would be the best solution proposedto date or such interconnected problems, it is still not a per ect solution or

two reasons. First, like other Congressional amnesty initiatives o the past, theDREAM Act would amount to a one-time x 30 since it would apply only tothose immigrants who entered the United States ve years prior to its passageand would not apply to undocumented children brought to the United Statespost-enactment. Tis potentially re-starts the problem once the current group o eligible students cycle through the eligibility requirements. Second, DREAM Actstudents would only be eligible or ederal aid in the orm o student loans, ed-

eral work study, and aid or members o the military (Subtitle C, Sec 631, 2006).Te act that they would not, however, be eligible or ederal grant aid amountsto a serious nancial obstacle to access.

Te Benefts and Costs Under Current law

Numerous national-level empirical studies have been conducted on theeconomic costs and returns o immigrant populations, both documented andundocumented, although by its very nature, estimating the impacts o the latteris di cult. Using various methodologies and scenarios, researchers have ex-amined, or example, the public scal costs and returns o immigrants in termso social services used relative to taxes paid and their efects on employment


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and wages, the growth rate o the economy, and prices o goods and services,among other variables. 31 Tough such studies provide interesting snapshots o some o the costs and returns o immigrant populations, they also have limita-tions. Tese limitations include the act that the immigrant population itsel is

not homogenous and so typical behavioral assumptions concerning immi-grants o ten skew the studies results, 32 the use o diferent time spans (immi-grants impacts on receiving communities in the short-term versus long-termmay be quite diferent), 33 and the act that immigration may have quite diferentimpacts in diferent locations as a result o localized demographic or economicstructures, such that immigrants may be bene cial to the local economy inGeorgia but not in Kansas. Despite reaching o ten quite diferent conclusions,such studies have, however, generally illuminated some important points.First, recent immigrants generally have low incomes, lower than those o nativeresidents. Tis is signi cant because, typically, lower-income amilies contrib-ute less to public revenue. Second, research indicates that, although childrenand elderly immigrants consume more tax revenues than they contribute (as isalso the case with U.S. citizens who are children or elderly), immigrants are nettax payers during their working age years. Finally, the long-term scal impacto an immigrant depends upon the level o education achieved. In particular,

immigrants with more education have more positive long-term fscal impacts. 34 Putting these together, then, the act that many studies show undocumentedimmigrants as net consumers (rather than contributors) o public services ap-pears to be more a product o their low incomes [and low educational levels]than their immigration status. 35

Te notion that higher levels o education can translate into higher public s-

cal returns was demonstrated in a recent RAND/Hispanic Scholarship study o the potential economic bene ts o doubling the rate at which U.S.-bornHispanics receive college degrees. 36 Te study estimated a cost o $6.5 billionto double the rate o Hispanics earning a bachelors degree; however, doingso would result in an increase o $13 billion in public revenues in the orm o

unds rom increased taxes and contributions to Medicare and Social Security,and savings made in public wel are, health, and law en orcement programsa2 to 1 public bene t cost ratio. RAND researchers ound that it would takeonly 13 to 15 years or the public to recoup the costs o the necessary invest-ment in education. 37


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Economic and social Return of Inve ting

in Undocumented student hig er EducationTe nding that immigrants with more education have greater long-term scal im-pact on a receiving society echoes much o the literature surrounding human capital

theory and the investment concept o educationinvesting in education generally increases individuals li etime earnings and makes them more productive memberso the labor orce, which itsel translates into higher levels o output, income, andeconomic return at the local, state, and national levels. 38 Along with the quanti -able economic bene ts o investing in education, scholars have also pointed to thebroader societal impacts o higher levels o educational attainmentBowen (1971),

or instance, argued that education has value beyond direct economic bene ts

because it contributes to enriching individuals lives and the societies in which they live, whereas Baum and Payea (2005) observed signi cantly lower incarcerationrates and higher volunteerism among those with some college.

Critics o the idea that increased investment in education necessarily translates intoeconomic growth posit that the relationship between education and the economy is tentative at best. Wol (2002), or example, notes that while education is certainly good or the educated who bene t rom higher incomes, it also is true that more

education and more education spending do not automatically mean more bene tsor society. Pointing to fawed methodologies used to calculate social rates o

return on education, she argues that there is not enough convincing quantitativeevidence to support the widely accepted assumption that education can delivereconomic growth. Further, she concludes that policymakers and business people who ocus on educations impact on economic growth are overlooking what is atthe heart o educationknowledge and values that are undamental to society.

How the economic bene ts rom investing in higher education are quanti ed,then, may depend on how inputs and returns are measured and compared. Whatis clear, though, is that the discourse around higher education among policymak-ers at the state and ederal levels is one that largely values higher education rela-tive to its contribution to economic growth. While this may or may not be ideal, itis the political and economic reality in which higher education policy is made.

Are there bene ts to be had, then, both to the individual and to the state, romimproving undocumented immigrants postsecondary educational attain-ment levels? Un ortunately, to date no empirical studies o the returns (either


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individual or public) o investing in undocumented individuals postsecondary education exist, and attempting such a calculation would be monumentally complex. It is possible, however, to explore the most commonly cited returns oninvestment in postsecondary education more generally, and then to extrapolate

how these benefts might accrue in the case o undocumented students. In thisregard, our sets o benefts o higher education have been commonly identifed,these being public economic benefts, private economic benefts, public socialbenefts, and private social benefts (see able 3).

able : Te benefts o higher education

Public Private

E c o n o m

i c

Increased tax revenues Higher salaries and bene tsGreater productivity EmploymentIncreased spending on consumer goods andservices

Higher savings levels

Increased work orce fexibility Improved working conditionsDecreased reliance on government nancialsupport

Personal/pro essional mobility

S o c i a

l

Reduced crime rates Improved health/li e expectancyIncreased charitable giving and communityservice

Improved quality o li e or o spring

Increased quality o civic li e Better consumer decision makingSocial cohesion/appreciation o diversity Increased personal statusImproved ability to adapt to and usetechnology

More hobbies and leisure activities

NO E: From Te Institute or Higher Education Policy (1998, March). Reaping the benefts: Defning thepublic and private value o going to college. Washington, DC.

Would the private higher education benefts outlined in able 3 accrue orundocumented college graduates in the same way as or residents? Te answerto this question will depend upon changes in the law, or even in states thatcurrently provide undocumented immigrants with resident tuition or tuition aid

or college, the students status will remain undocumented upon graduation,preventing them rom working legally. Tis means that they may end up work-ing in lower-paying, under-the-table jobs that require limited skills and in whichthey can largely go undetected. Upon graduation, these undocumented stu-dents, then, may not see the private economic benefts o lower unemployment,higher salaries, improved working conditions, higher savings, and pro essionalmobility. Tey may also not reap the private social beneft o increased personal


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status or improved quality o li e or their children. Tis is signi cant, or inchoosing to pursue postsecondary education undocumented students will, inefect, orego the earnings they could have accrued by working those our years(albeit without authorization and, most likely, in a low-paying position) even

though their net returns to postsecondary education are uncertain. Given thatthe economic costs seem to outweigh the payofs, it is likely that many undocu-mented students will decide that even with access to in-state tuition it is simply

nancially not worth going to college.

Although or the individual student, then, going to college may be a risky,though laudable, decision, discerning whether or not there are public economicand social bene ts to increasing undocumented students access to college may be the more relevant question or public policy debates, since state policymak-ers are likely to be more concerned about the collective social return (in the

orm o greater economic competitiveness and/or reduction o social problems)on their investment in higher education. Presumably, the ten states that oferresident tuition to undocumented students have decided that it is worth makingsome type o scal investment in these students, whether that be in the orm o state-based nancial aid ( exas, Oklahoma, and New Mexico) or simply through

the act that an institutions tuition is typically lower than the actual per stu-dent costs incurred by the institutionthe result o the act that many costs or

acilities, utilities, and other operations are subsidized by the institution and thestate. Again, though, as in the case o individual returns, the public economicbene ts would accrue only i students can obtain earnings commensurate withthose o a college-educated worker who can work legally a ter graduation. Cer-tainly, public social bene ts in the orm o reduced crime, improved civic li e,

and appreciation o diversity may be enjoyed, but these may not be su cientincentive or more states to invest in undocumented students. It is important torecognize, however, that this problem is not one con ned to expending publicresources on undocumented studentsany time a state invests in the educa-tion o a student, even U.S. citizens, there is always the risk that upon graduationstudents will move to another state, such that the state that unded the student will not gain any urther economic bene t.

What is needed or undocumented students, then, beyond greater access tohigher education, is the ull en ranchisement that results rom documentedstatus, thus leading to higher-paying jobs that can improve their individual


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9 A M E R I C A N F E D E R A I O N O F E A C H E R S

socio-economic status. Tere is an apparent policy disconnect between provid-ing tuition bene ts to undocumented students while not providing a mecha-nism that allows either the students themselves or the public to reap the returnso this investment. Tis policy disconnect takes on greater or lesser proportions

depending on predictions o uture work orce needs. For example, by someestimates by 2015 the United States will have increased its college participationrates by only 13 percent, a growth rate that will cause it to lag urther behindother developed nations, including Canada, Korea, and Sweden, in levels o postsecondary attainment. 39 Carnevale and Fry (2001) estimate that by 2020,the United States will have created 15 million new jobs requiring some collegeeducation, but will ace a short all o 12 million workers with quali cations to llthe new positions. Furthermore, the Aspen Institute (2002) notes that whileeconomic growth in the United States has traditionally been acilitated by growth in the numbers o native-born workers o prime working age, rom now until 2021 there will be no net increase in the numbers o native-born work-ers aged 25-54, so any growth in the labor supply must come rom immigrantsor older workers. Tese two trends mean that the projected worker and skillsgap could threaten U.S. productivity, growth, and international competitive-ness and, most importantly, widen the socio-economic divide. 40 Certainly,

it should be recognized that predicting the uture is raught with di culties.Tus, Rothstein (2002), positing that estimates o a college-educated work orceshortage are wildly exaggerated, warns against expanding higher educationbased on predicted needs o the uture work orce, concluding that many o the jobs in the expanding service sector will not require college-educated workers.Nevertheless, even he predicts about a 1 percent shortage in college-educated workers over the next ew years.

Arguments About Costs

Precise gures o the exact costs o extending resident tuition to undocumentedstudents are di cult to come by as the majority o cost estimates are annualizedand thus do not refect costs relative to long-term returns in the orm o bene tssuch as increased tax revenue. Tere are clear direct costs, however, o ederaland state measures to increase undocumented students access to higher educa-tion. Te Congressional Budget O ce (2006), or instance, estimates that thecosts o implementing the DREAM Act o 2006 would be some $60 million be-tween 2007 and 2016. At the state level, costs depend on the number o undocu-mented students who actually participate, the di erence between resident and


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non-resident tuition, and whether students are eligible or state-based scholar-ship programs. New Mexico, or example, estimated that the cost o extendingin-state tuition to undocumented students was not signi cantly large but thatthe costs to its Lottery uition Scholarship und would be between $200,000 and

$600,000 over a our-year time period. 41 Te State o Washington estimated thescal impact o its law at less than $50,000 per year. 42 Researchers at the Univer-

sity o Illinois-Chicago have estimated it would cost Illinois $46 million annually in lost revenue rom the diference between resident and non-resident tuition,although these estimates were based on the assumption that all eligible undocu-mented students in Illinois would take advantage o the resident tuition and thatall undocumented students would also have otherwise attended college paying

ull non-resident reight. 43

On the other side o the coin, however, the Massachusetts axpayers Foundation(2006) estimated that resident tuition or undocumented students in that state would actually net new revenues over a three-year period o $2.5 million by ex-panding the numbers o students at the states underutilized postsecondary insti-tutions. Such net gains may also be reaped in other states where undocumentedstudents paying in-state tuition would represent new students, thus generating

revenue. Tis is particularly signi cant in states where the diference betweenin-state and out-o -state tuition is so great that very ew undocumented students would attend i they were required to pay ull non-resident tuition and in states where higher education capacity exceeds the number o students who apply. Forthe eight states that will see signi cant (11-35 percent) declines in the number o high school graduates and the twelve that will experience more moderate reduc-tions (1 to 8 percent) during the next two decades, then, undocumented students

could represent an important untapped higher education market.44, 45

In weighing the potential costs and bene ts o increasing higher educationaccess or undocumented students, though, it is also important to consider thecosts to institutions themselves, particularly given that evidence suggests thatundocumented students are likely to come rom low-income backgrounds andthat low-income students o ten arrive on campus with risk actors that requireinstitutional attention 46 or example, students rom low-income backgroundso ten have lower levels o academic preparation that require remedial course- work or specialized programs to ensure retention, all o which mean moreinstitutional dollars need to be invested in the student. However, given that


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proposals to provide access to undocumented students require them to havegraduated rom a U.S. high school, these problems are not confned to undocu-mented students and would also be associated with having to educate a citizen with similar socio-economic status.

Certainly, opponents o measures to provide in-state tuition to undocumentedstudents argue that the direct costs are simply too high and that it is patently un air to ask taxpayers to shoulder the burden or non-U.S. citizens. Tus, FAIRestimates that providing K-12 education or undocumented children already costs the United States some $7.4 billion per year and that providing access tocollege would only cost more. 47 However, the act that the Plyler ruling requiresundocumented students to be educated at least through the end o high schoolmeans that there are today tens o thousands o undocumented students gradu-ating rom high school each year, many o whom have lived in the United States

or nearly two decades and who are unlikely to leave a ter graduation. Moreover,even i the U.S. border were hermetically sealed today, the immigration patternso the past 20 years mean that U.S. high schools will be graduating undocument-ed students or at least the next 15 to 20 years, which raises the policy questiono what to do with such students when they do fnish high school. Irrespective

o whether we may agree with the moral argument that allowing such studentsaccess to college would be rewarding the illegal behavior o their parents, then,

rom an economic policy point o view the major question would seem to be whether allowing them to go to college and to work would serve as a means tobegin to recoup some o the social investment already made in them.

Finally, opponents o enacting either ederal or state legislation to provide

tuition benefts to undocumented immigrants argue that doing so condonesillegal immigration and will be an incentive or more people to enter the UnitedStates illegally in search o education benefts, which will urther increase costs.Tis interpretation o the migration processthat immigrants are attracted tothe United States by high social benefts (health, education, and wel are) ailsto appreciate the complexity o international migration. Factors including therole o migrant networks and amily connections, the migration industry (laborrecruiters, brokers, interpreters, smugglers, etc.), structural dependence onimmigrant labor on the part o host countries, and structural dependence onexporting labor on the part o sending nations all impact the migratory process. 48 Although the empirical evidence suggests undocumented workers do not come


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to the US to take advantage o its wel are system, and conversely are not likely toleave because the state denies certain bene ts, the dominance o this discoursehas been signi cant: It has served to structure the political thinking and rhetorico those who oppose giving undocumented students access to in-state tuition.

Tey suggest that to grant such students this access will simply encouragegreater migration and/or reward their parents illegal behavior.

Conclusions and Policy Recommendations Approximately 1.8 million o the nations 11 million undocumented immigrantsare under the age o 18. 49 Where, exactly, these children end up as adults alongthe socio-economic stratum may well depend on whether or not they have

access to afordable postsecondary opportunities and whether they then haveopportunities to put their education to work as legal permanent residents. Although state laws are important in that they are strong statements o states

undamental belie in the importance o equal educational opportunities orall students, state laws alone cannot ully address nancial barriers to access orissues related to employment. Tis means that neither the students themselvesnor society at large can reap the ull spectrum o bene ts that college-educatedundocumented students could bring. Clearly, passage o the ederal DREAM

Act is the best solution currently on the table, since it would allow access to ed-eral student loans and enable eligible students to obtain legal permanent resi-dence. However, a more comprehensive solution would be or the DREAM Actto allow eligible undocumented students access to additional ederal nancialaid beyond student loans and to extend eligibility beyond those who are already in the United States at the time o its passage.

Although the immediate, direct costs o improving undocumented studentspostsecondary opportunities are real and in some cases signi cant, there arelikely to be ar greater long-term costs or essentially excluding rom the bene tso higher education an entire group o individuals who have received their K-12education in the United States. Obviously, however, neither higher educationnor immigration policies are made in a political vacuum, and what may be goodin the long term rom a public policy perspective may be untenable as a politicalposition when the uture is de ned in terms o the next election cycle.

While the ederal aspects o undocumented students postsecondary access arebeing debated, including giving them residency status so they can legally work,


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1 0 0 A M E R I C A N F E D E R A I O N O F E A C H E R S

states can impact undocumented students educational attainment through oth-er policy options. wo sets o policies may be appropriate in this regard. First,improving postsecondary opportunities or undocumented students is arguably just one piece o the puzzle to ensure that there are no gaps in undocumented

students educational attainment. A well-coordinated state-level educationalpolicy to increase the numbers o undocumented students in public collegesand universities should include not only resident tuition, but also a seamlessK-16 approach that addresses high drop-out rates among at-risk populations,identi es best practices to overcome K-12 obstacles such as language and cul-tural barriers and lack o parental involvement in education, and institutes col-lege retention strategies to ensure that the undocumented students who enterinstitutions actually graduate.

Second, the issue o the costs and bene ts o providing undocumented studentsaccess to postsecondary education is clearly one that is sensitive to geography.Currently, some 30 states will see increases in the numbers o students graduat-ing rom high school in the next ten years, ranging rom increases o less than 10percent to more than 100 percent, whereas the other 20 states will experiencesigni cant declines. 50, 51 In states where demand or seats at public colleges

and universities is likely to outpace capacity, the costs o providing su cientacilities to educate undocumented students may be greater than the immediate

bene ts to be reaped in terms o tuition dollars (though still less than the long-term bene ts o so doing). In those twenty states where the numbers o studentsgraduating rom high school will decline, however, providing access to undocu-mented students may serve as a way to address the problem o too ew students

or the amount o educational in rastructure that such states have. As difer-

ent states grapple with their various uture enrollment challengeschallengesthat are shaped by the particular demographic and economic orces impactingthemthey might consider policies and interstate agreements that acilitateundocumented students migration to attend public institutions in other states.Tis might provide bene ts both to the student rich sending states and to thestudent poor receiving states. By admitting undocumented students romneighboring states, those states with too ew students, in particular, would beable to ll previously vacant higher education seats and in the process receivenew tuition dollars. Already, agreements to share students and resources existamong the states o the nations our higher education compactsthe Mid- western Higher Education Compact (MHEC), the Southern Regional Education


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A M E R I C A N A C A D E M I C - V O L U M E H R E E 1 0 1

Board (SREB), the New England Board o Higher Education (NEBHE), and the Western Interstate Commission or Higher Education (WICHE). For example,students rom any o the six NEBHE states may study at any other memberstates public higher education institutions or reduced tuition rates when their

home state does not o er the undergraduate or graduate degrees they are seek-ing.52 Expanding such agreements to undocumented students would allow astate such as exas, which will experience growth upwards o 25 percent, to part-ner with neighboring Louisiana, which is anticipated to see a decline o at least12 percent in its high school graduates. O course, such an approach assumesthat Louisiana would agree to allow undocumented students to pay in-staterates to attend college and that exas and Louisiana laws could be cra ted to withstand judicial scrutiny (which would entail ensuring that a U.S. citizen rom

exas would be eligible or Louisiana in-state rates under the same scheme),and that students and their parents rom one region o the country would acceptbeing educated out o state. Nevertheless, such a system is but one example o how states might look beyond their own borders to consider regional approach-es to addressing postsecondary access or undocumented students.

ENDNOTEs

1 Passel, 2003.

2 Passel, 2005.

3 College Board, Trends in College Pricing , 2005.

4 Passel, 2005.

5 Such variations are refected in U.S. attitudes towards immigrants rom Mexico: post-

World War I nativism led to the establishment o the U.S. Border Patrol in 1924; virulentanti-immigrant sentiments during the Depression saw massive deportations; the World War II economic boom resulted in public acceptance o the importation o workers or thebracero program; and post-World War II recession and McCarthyism led to the simulta-neous deportation o unauthorized immigrants (to satis y those suspicious o oreigners)and the re-importation o the legal immigrants via the bracero program (to U.S. businessinterests). Between 1965 and 1985, Mexican migration to the United States developedinto a system that minimized the negative consequences and maximized the gain orboth countries (Massey, Durand, and Nolan, p. 71). In such a migratory regime, US bor-der states received a steady supply o the most able workers (80 percent without depen-dents) to ll less desirable jobs, and most migrants did not utilize U.S. social services, suchas schools, wel are, or ood stamps (pp. 70-71). Te relatively porous border meant thatMexican migrants could return home to amilies when work in the United States dried up,thus discouraging signi cant settlement in the United States. Indeed, until the mid-1980s,only 39 percent o migrants attempted to settle in the United States (p. 71).


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6 Stevenson, 2004.

7 U.S. Bureau of the Census, Educational Attainment in the United States, 2004.

8 Romero, 2002.

9 Massey, Durand, and Nolan, p. 87.

10 Ruge and Iza, 2005.

11 Ibid.

12 Ibid.

13 Krueger, 2006.

14

Olivas, 2004.15 Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii,Illinois, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, North Carolina, Oregon, Rhode Island, Virginia, Washington and Wisconsin haveproposed legislation giving resident tuition to undocumented students. Alaska, Ari-zona, Colorado, North Carolina, Utah and Virginia have considered legislation banningundocumented students from receiving resident tuition. In 2003, Marylands governor vetoed a bill allowing in-state tuition for undocumented students and Virginias governor vetoed a bill prohibiting undocumented students from receiving resident tuition (Day v.Sebelius, 2005). In 2006, legislation was introduced in the Georgia General Assembly todeny undocumented students admission to public postsecondary institutions. Te bill,SB 171, was later withdrawn by its sponsor, Senator Chip Rogers.

16 Ruge and Iza, 2005.

17 Defendants California State University and California Community Colleges Reply, 2006.

18 President Bush has made immigration one of his domestic priorities, focusing on reformthat combines increased border security, improved enforcement of immigration laws,holding employers accountable for hiring undocumented persons, a temporary worker

program, and the establishment of a process of permanent residency for those already inthe U.S. (the White House, 2006). Although the Senate bill combines all of his priorities forimmigration, some members of the House of Representatives have rejected any immi-gration legislation that includes residency or citizenship for undocumented individuals.Representative F. James Sensenbrenner, the House lead negotiator on immigration, saidhe would continue to reject President Bushs call for a compromise because he believedthat the president, who supports a path to citizenship for illegal immigrants, remainedout of touch with the public (Swarns, 2006, p. 9). Former Speaker of the House, J. DennisHastert: Our number one priority is to secure the border and right now I havent evenheard a lot of pressure to have a path to citizenship. Te immigration bill that passedout of the House in 2005, Te Border Protection, Antiterrorism, and Illegal ImmigrationControl Act of 2005, focused only on tightening the border and enforcement (Hulse, C.,2006, p. 1).

19 College Board, Trends in Student Aid , 2005.


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20 College Board, Trends in College Pricing , 2005.

21 Tere may be several other reasons or the relatively low numbers o undocumentedstudents taking advantage o resident tuition. Language and cultural barriers, shortage o trained teaching pro essionals, lack o parental involvement, com ort and sa ety, and work conficts are o ten cited as major obstacles to immigrants educational attainment (Atilesand Bohon, 2002, pp. 42-43). Additionally, there may be a lack o in ormation about col-lege and the availability o resident tuition or complicated application procedures thatlead to leaks in the K-16 pipeline.

22 Lewis, 2005, p. A1.

23 Fischer, 2004, p. 19.

24 Frank, n.d.

25

Paulsen, 2001, p. 121.26 Hearn, 2001.

27 Mehta and Ali, 2003.

28 Cabrera, Nora, and Castaeda, 1992; St. John, Paulsen, and Starkey, 1996.

29 8 U.S.C. 1324a and 1324a (b) (1) makes it unlaw ul and punishable by nes to employ unauthorized persons and requires employers to veri y and document that employeeshave proper documentation.

30 Connolly, 2005.

31 Smith and Edmonston, 1997, p.4.

32 Vernez and McCarthy, 1996, p.45.

33 Smith and Edmonston, 1997.

34 Ibid, p.11)

35 Vernez and McCarthy, 1996, p.45.

36 Vernez and Mizell, 2001.

37 Ibid, p. ix.

38 Paulsen, 2001, p. 56.

39 Ruppert, 2003.

40 Aspen Institute, 2002.

41 S.B. Bill 582, Fiscal Impact Report, 2004.


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42 H.B. 1079 Fiscal Note, 2003.

43 Mehta and Ali, 2003.

44 Western Interstate Commission on Higher Education, 2003.

45 Hawaii, Louisiana, Maine, Montana, North Dakota, South Dakota, Vermont, and Wyo-ming are predicted to see an 11 to 35 percent reduction in high school graduates between2002-2018. Iowa, Massachusetts, Mississippi, Missouri, Nebraska, New Hampshire, New Mexico, New York, Oklahoma, Pennsylvania, West Virginia, and Wisconsin will experiencereductions between 1-8 percent (WICHE, 2003).

46 Corrigan, 2003, p. 27.

47 Breaking the Piggy Bank, 2003.

48

Castles, 2005.49 Passel, 2006.

50 WICHE, 2003.

51 Te highest growth (26 to 103 percent) will take place in Arizona, Colorado, Florida,Georgia, Indiana, Nevada, North Carolina, exas, and Utah. Moderate growth (13-19 per-cent) will occur in Delaware, Idaho, Maryland, New Jersey, South Carolina, and Virginia. Alabama, Alaska, Arkansas, California, Connecticut, Illinois, Kansas, Kentucky, Michigan,Minnesota, Ohio, Oregon, Rhode Island, ennessee, and Washington will experience low growth (10 percent or lower) (WICHE, 2003).

52 Morphew, 2005.

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Documents