For those of you who know, access to higher education for undocumented immigrant students is one of my main research interests. I’ve written a couple of papers on the topic and done a a lot of reading on the issue, especially from the law angle. I also have a vested interest in this because of my experience working with undocumented students as a counselor and student activism during my last undergraduate year at UCLA (2001-2002). I remember making signs like “No human being is illegal” and marching up to the UC Regents meeting to encourage them to apply Assembly Bill 540 to the UC (when it passed in the state legislature, it only applied to the community colleges and California State University system).

So, as you might assume, I’m deeply concerned and rather pissed about the latest news on a class-action lawsuit challenging a California’s AB 540. In short, AB 540 allows undocumented students to qualify for in-state tuition whereas before they were considered non-residents even if they had lived here their entire lives (US citizens and others who are here “legally” have access to AB 540 too).

The big stink is that if you’re not a California resident, public higher education is a lot more costly. The University of California — the most expensive segment — charges non-resident students more than triple what California residents pay. At UCLA, undergraduate residents pay $7,062 and non-residents pay $24,882. The students who filed the California lawsuit (and similiar lawsuits in Kansas, Texas and New York) contend that it it is illegal for undocumented immigrants to have the right to in-state tuition, while as US citizens from another state, they have to pay more. An often cited federal law in these cases is Section 505 of the 1996 Illegal Immigration Reform and Individual Responsibility Act.

When section 505 of IIRIRA was passed, Congress wanted to ensure that undocumented immigrants would not receive benefits denied to US citizens. Section 505 limited states from deciding postsecondary education benefits. As a result some states, such as New York, reformed their policies to bar undocumented students from paying in-state tuition. But starting in 2001, states found a way to comply with Section 505 while still not limiting access for undocumented students. Currently, there are nine states — Texas, California, Utah, Washington, New York, Oklahoma, Illinois, Kansas, and New Mexico — that allow undocumented immigrants who meet certain requirements to pay in-state tuition, but most do not allow students to qualify for financial aid.

The rationale for the legality of the in-state tuition bills is that immigration status is not used to define residence for tuition purposes. Instead, in-state high school graduation and attendance are the main requirements to qualify for in-state tuition. California’s AB 540 uses the following qualifications to determine who is eligble for in-state tuition:

1. Attended a California high school for three or more years.
2. Graduated from a California high school or earned the equivalent (GED).
3. Registered or enrolled at an accredited public institution in California.
4. Signed an affidavit with the University stating that he or she will apply for legal residency.

For the record, I am STRONGLY in favor of in-state tuition bills and the latest iteration of the DREAM Act in the US Senate. The main reason I feel laws like AB 540 are important is because these students have not done ANYTHING wrong. In fact, they’ve done things right! It is unfair to punish students by making this “educational glass ceiling” for something their parents did. You tell me if you’re going to stay behind in your country when your mom or dad says, “Vamos al Norte” or when you overstay a visa.

I have a lot more thoughts on this, but I really hope this lawsuit is dismissed like the Kansas lawsuit. In that case, a federal district judge said that the plaintiffs lacked standing because they did not demonstrate that they were personally harmed the by a bill granting in-state tuition to undocumented students. Whether or not the law was in place, out-of-state students would have still paid higher fees.

AB 540 and other laws like it still fall short, and that’s where the DREAM Act picks up. Once these students graduate they might not have adjusted their status meaning they can’t get a good job, or the job they get is a low-paying under the table job. In addition, undocumented students in California DO NOT qualify for any kind of state or federal aid, even loans. They have access to some scholarships, but only those that do not require students to be citizens or permanent residents (MALDEF has a great PDF list of such scholarships).

Finally, the following quote shows just how opponents of in-state tuition bills frame the issue.

But Aaron Dallek, a UC Berkeley senior from Chicago who is one of the named plaintiffs in the case, called the policy unfair. “I would understand if the university needed out-of-state tuition to fund education, but I don’t feel it’s right that illegal immigrants have more rights in the state of California than I do,” said the 21-year-old business major. (LA Times)

Wait, did I read that right? This kid really thinks undocumented students have more rights than he does as a US citizen? You gotta be kidding.