Unauthorized Alien Students, Higher Education, and In-State Tuition Rates: A Legal Analysis

Unauthorized Alien Students, Higher Education, and In-State Tuition Rates: A Legal Analysis

Unauthorized Alien Students,
Higher Education, and In-State Tuition Rates:
A Legal Analysis
Jody Feder
Legislative Attorney
December 22, 2011
Congressional Research Service
7-5700
www.crs.gov
RS22500
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Unauthorized Alien Students, Higher Education, and In-State Tuition Rates

Summary
Currently, federal law prohibits states from granting unauthorized aliens certain postsecondary
educational benefits on the basis of state residence, unless equal benefits are made available to all
U.S. citizens. This prohibition is commonly understood to apply to the granting of “in-state”
residency status for tuition purposes. Legislation to amend this federal law has routinely been
introduced in each of the last several congressional sessions, including H.R. 1842/S. 952 in the
112th Congress, but such legislation has never been enacted. Meanwhile, some states have passed
laws aimed at making unauthorized state residents eligible for in-state tuition without violating
this provision. This report provides a legal overview of cases involving immigrant access to
higher education, as well as an analysis of the legality of state laws that make in-state tuition rates
available to illegal aliens. For a policy analysis of this issue, see CRS Report RL33863,
Unauthorized Alien Students: Issues and “DREAM Act” Legislation, by Andorra Bruno.
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Unauthorized Alien Students, Higher Education, and In-State Tuition Rates

Contents
Legal Overview ............................................................................................................................... 1
Legal Analysis of State Laws That Make In-State Tuition Available to Illegal Immigrants............ 3

Contacts
Author Contact Information............................................................................................................. 6

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Unauthorized Alien Students, Higher Education, and In-State Tuition Rates

s noted above, federal law currently discourages states and localities from granting
unauthorized aliens certain higher education benefits. Specifically, Section 505 of the
A Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) mandates that
unauthorized aliens “shall not be eligible on the basis of residence within a State (or a political
subdivision) for any postsecondary education benefit unless a citizen or national of the United
States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to
whether the citizen or national is such a resident.”1 Although there is neither report language nor
agency regulations available to provide guidance, this provision appears to be designed to prevent
states from offering illegal aliens in-state tuition at public institutions of higher education. While
Section 505 does not explicitly prohibit states from doing so, the provision could potentially
impose a costly penalty on those who do by requiring them to make cheaper in-state tuition rates
available to nonresidents. Since the enactment of Section 505, there has been debate about
whether states and localities may offer in-state tuition to unauthorized alien students on some
basis other than residency in order to avoid violating the law. This report provides a legal
overview of cases involving immigrant access to higher education, as well as an analysis of the
legality of state laws that make in-state tuition rates available to illegal aliens.
Legal Overview
The Supreme Court has, on several occasions, confronted questions regarding access to education
for individuals who are neither citizens nor legal immigrants, but these cases do not directly
address whether the government can restrict the access of unauthorized student aliens to in-state
tuition or to higher education more broadly. Nevertheless, these cases are instructive for purposes
of evaluating the legal issues involved in unauthorized student alien eligibility for higher
education admission and/or in-state tuition rates.
Although the Supreme Court has not directly addressed the issue of unauthorized immigrant
access to higher education, the Court has considered the issue of unauthorized immigrant access
to elementary and secondary education. Indeed, in the 1982 Plyler v. Doe case, the Court held that
a Texas statute that would have prohibited unauthorized student aliens from receiving a free
public elementary and secondary education violated the Constitution.2 In reaching this ruling, the
Court determined that unauthorized immigrants are entitled to protection under the Equal
Protection Clause of the Fourteenth Amendment, which provides that no state shall “deny to any
person within its jurisdiction the equal protection of the laws.”3 Because the Court ruled that
unauthorized immigrants are not a “suspect class” and education is not a “fundamental right”—
both findings would have triggered more intense judicial scrutiny of the Texas statute—the Court
evaluated the Texas statute under a variant of the less stringent rational basis standard of review,
requiring that the statute further a substantial state goal. The Plyler Court, however, ruled that the
state’s interests in enacting the statute—namely, to conserve the state’s educational resources, to
prevent an influx of illegal aliens, and to maintain high-quality public education—were not
legitimately furthered by the legislation. As a result, the Court struck down the Texas statute.4

1 8 U.S.C. §1623.
2 457 U.S. 202 (1982).
3 U.S. Const., amend. XIV.
4 Plyler v. Doe, 457 U.S. at 227-31 (1982).
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Although the Plyler decision did not explicitly create an entitlement for unauthorized student
aliens to attend public elementary and secondary schools, the case has, in practice, had the effect
of establishing such access to public education, in part because the decision appears to preclude
states from justifying legislation similar to the Texas statute that was struck down. The logic of
the Plyler case, however, does not necessarily extend to unauthorized immigrant access to higher
education. Because Plyler heavily emphasized the importance of a basic elementary and
secondary education, a state could readily distinguish legislation restricting unauthorized
immigrant access to higher education on the grounds that higher education, unlike elementary and
secondary education, is not essential to “maintaining the fabric of our society.”5 Although the
Supreme Court has not ruled on this question, the distinction between higher education and
elementary and public education makes it appear unlikely that the Court would strike down
legislation that restricted the access of unauthorized student aliens to higher education.
Meanwhile, in Toll v. Moreno,6 the Court considered a challenge to a Maryland state policy to
deny in-state status to non-immigrant aliens holding G-4 visas even if such aliens were state
residents who would have otherwise qualified for in-state tuition rates at state colleges and
universities.7 Ultimately, the Court held that the state policy was invalid under the Supremacy
Clause of the Constitution, which provides that the laws of the United States “shall be the
supreme law of the land,” and state laws to the contrary are preempted by federal law.8 Since
immigration regulation is an exclusive power of the federal government, “state regulation not
congressionally sanctioned that discriminates against aliens lawfully admitted to the country is
impermissible if it imposes additional burdens not contemplated by Congress.”9 Because federal
law allowed G-4 aliens to establish residency in the United States, the Court found that the
Maryland policy to deny residency status for purposes of qualifying for in-state tuition rates
conflicted with federal law and therefore violated the Supremacy Clause.
It is important to note that Toll v. Moreno involved aliens who were lawfully present in the United
States and thus may not extend to protect unauthorized student aliens who are denied state
educational benefits such as admission to state colleges and universities or eligibility for in-state
tuition rates. Indeed, as long as a state policy to deny such educational benefits to unauthorized
student aliens is not found to conflict with federal immigration standards, it is likely to be upheld
by the courts, as demonstrated in the Equal Access Education v. Merten case described below.
Thus far, it appears that only one federal court has addressed the question of whether it is
constitutionally permissible for a state to prohibit unauthorized immigrants from attending state
colleges and universities, let alone from receiving in-state tuition. In Equal Access Education v.
Merten, the plaintiffs claimed that several Virginia public institutions of higher education had
violated the Supremacy, Commerce, and Due Process Clauses of the Constitution by denying
admission to unauthorized student aliens.10 The institutions adopted this policy in response to a
2002 memorandum from the Virginia Attorney General that asserted that unauthorized aliens
should not be admitted to Virginia’s public colleges and universities. Although the court

5 Id. at 221.
6 458 U.S. 1 (1982).
7 G-4 visas are issued to nonimmigrant aliens who are officers or employees of certain international organizations, and
to members of their immediate families.
8 U.S. Const. art. VI, cl. 2.
9 Toll v. Moreno, 458 U.S. at 12-13 (citing DeCanas v. Bica, 424 U.S. 351, 358 (1976)).
10 305 F. Supp. 2d. 585 (E.D. Va. 2004).
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dismissed the Commerce Clause and Due Process Clause claims,11 it did allow the Supremacy
Clause claim to proceed, at least in part. Since immigration regulation is an exclusive power of
the federal government, the court ruled that the Supremacy Clause would not be violated unless
the plaintiffs could show that the Virginia institutions were using state, not federal, immigration
standards in order to deny admission to unauthorized aliens.12 Although the court ultimately
dismissed the plaintiffs’ Supremacy Clause claims for procedural reasons in a later proceeding,13
the Equal Access Education case indicates that unauthorized student aliens might have difficulty
in establishing constitutional violations on the part of public institutions that deny either
admission or in-state tuition to unauthorized immigrants.
Legal Analysis of State Laws That Make
In-State Tuition Available to Illegal Immigrants
Other federal litigation regarding unauthorized student aliens has revolved around the separate
question of whether state laws that make unauthorized aliens eligible for in-state tuition violate
Section 505 of the IIRIRA’s prohibition against conferring educational benefits on the basis of
state residency. Indeed, several states have enacted laws with respect to providing in-state tuition
rates for unauthorized alien students.14 For example, California enacted a law in 2001 that makes
unauthorized aliens eligible for in-state tuition rates at certain state community colleges and
universities, but the state statute bases eligibility on criteria that do not explicitly include state
residency. To qualify for in-state rates, a student must have attended high school in California for
at least three years and graduated from high school. In addition, unauthorized alien students are
required to file an affidavit stating that they have either filed an application to legalize status or
will file such an application as soon as they become eligible.15 California officials argue that by
using eligibility criteria other than state residency, their law does not violate the Section 505
restriction on conferring educational benefits on the basis of state residency. As described in more
detail below, a legal challenge to this law was unsuccessful.
In 2005, in what appeared to be the first decision of its kind, a federal court in Kansas considered
whether state laws that make unauthorized immigrants eligible for in-state tuition violate Section
505 of IIRIRA. The case, Day v. Sebelius,16 involved a challenge to the legality of a Kansas state
law that makes unauthorized aliens eligible for in-state tuition if they attended a Kansas high
school for three years, received a high school diploma or equivalent from a Kansas school, were
not a resident of another state, and signed an agreement to seek legal immigration status.17
Specifically, the suit, which was filed by non-resident students (or parents who support them)
who attended Kansas state institutions but paid out-of-state tuition, alleged that the Kansas law

11 Id. at 608-14.
12 Id. at 608.
13 Equal Access Educ. v. Merten, 325 F. Supp. 2d 655 (D. Va. 2004).
14 For more information on state legislation, see National Conference of State Legislatures, In-State Tuition and
Unauthorized Immigrant Students, November 22, 2011, http://www.ncsl.org/default.aspx?tabid=13100, and National
Conference of State Legislatures, Undocumented Student Tuition: State Action, October 2011, http://www.ncsl.org/
default.aspx?tabid=12846.
15 Cal Ed Code §68130.5.
16 376 F. Supp. 2d. 1022 (D. Kan. 2005).
17 K.S.A. §76-731a(b)(2).
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violated, among other things, Section 505 of the IIRIRA and the Equal Protection Clause of the
Constitution.
The court ultimately dismissed six of the seven claims that were asserted in the case, including
the equal protection claim, on the grounds that the plaintiffs lacked the standing to bring suit.
Standing requirements, which are concerned with who is a proper party to raise a particular issue
in the federal courts, are derived from Article III of the Constitution, which confines the
jurisdiction of federal courts to actual “Cases” and “Controversies.”18 The case-or-controversy
requirement has long been construed to restrict Article III courts to the adjudication of real, live
disputes involving plaintiffs who have “a personal stake in the outcome of the controversy.”19
Under the Supreme Court’s jurisprudence, plaintiffs appearing before an Article III court must
show three things in order to meet constitutional standing requirements: (1) he/she has suffered an
“injury in fact” that is concrete and particularized (not common to the entire public), and actual or
imminent; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is
likely that the injury will be redressed by a favorable decision.20
According to the Day v. Sebelius court, the plaintiffs failed to establish standing with respect to
most of their claims because the plaintiffs could not demonstrate that they were injured in fact by
the Kansas statute, which did not actually apply to the plaintiffs, who had paid out-of-state tuition
rates both before and after enactment of the statute.21 Furthermore, the court noted that even if the
plaintiffs had been found to have suffered an injury in fact, they had still failed to demonstrate
that a favorable court decision with respect to most of their claims would have redressed that
injury. For example, if the court had found that the Kansas statute violated the Equal Protection
Clause of the Constitution, the plaintiffs would not receive any benefit because the invalidation of
the Kansas legislation would not change the fact that the plaintiffs would still be required to pay
out-of-state tuition rates.22
Although the court rejected six of seven claims on the grounds that the plaintiffs lacked standing,
the court found that the plaintiffs did have standing to sue with regard to their claim that the
Kansas statute violated Section 505 of IIRIRA. The court, however, dismissed this claim because
it found that the plaintiffs did not have a private right of action, which is a right that authorizes an
individual to sue in court. In the statutory context, administrative agencies, rather than
individuals, are typically the only party that is authorized to bring a lawsuit against entities that
violate the law, unless the statute expressly or impliedly grants a private right of action to
individuals to sue to enforce the statute. Because the Day v. Sebelius court found that IIRIRA
neither explicitly nor implicitly gives individuals a remedy to enforce immigration laws,23 the
plaintiffs did not have a private right of action, and the court dismissed their Section 505 claim.
The district court’s dismissal of the claim was affirmed by a federal appeals court,24 and the
Supreme Court declined to consider an appeal.25

18 U.S. CONST. art. III, §2, cl. 1.
19 Baker v. Carr, 369 U.S. 186, 204 (1962).
20 See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
21 Day v. Sebelius, 376 F. Supp. 2d. at 1033, 1039-40.
22 Id. at 1034.
23 Id. at 1039-40.
24 Day v. Bond, 500 F.3d 1127 (10th Cir. 2007).
25 Day v. Bond, 554 U.S. 918 (2008).
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More recently, the California Supreme Court upheld a challenge to the California law described
above. The case, Martinez v. Regents of the University of California,26 appears to be the first time
a court has considered whether a state tuition statute violates Section 505 of IIRIRA. According
to the court:
Because the exemption is given to all who have attended high school in California for at least
three years (and meet the other requirements), and not all who have done so qualify as
California residents for purposes of in-state tuition, and further because not all unlawful
aliens who would qualify as residents but for their unlawful status are eligible for the
exemption, we conclude the exemption is not based on residence in California. Rather, it is
based on other criteria. Accordingly, section 68130.5 [the California law] does not violate
section 1623 [Section 505 of IIRIRA].27
Lawsuits that challenge state laws that grant in-state tuition to unauthorized student aliens may be
brought in other states, although plaintiffs in similar lawsuits remain likely to face difficulties
similar to those of the Kansas plaintiffs in establishing standing or a private right of action to sue.
Given these difficulties, individual plaintiffs must overcome significant procedural hurdles in
order to successfully challenge such state laws.
In recognition of this problem, a legal advocacy group filed several complaints with the
Department of Homeland Security (DHS) in 2005. In these complaints, the group argued that
certain state tuition laws violate Section 505 of IIRIRA and called on DHS to enforce the statute
against states that offer in-state tuition rates to unauthorized student aliens since it appears that
individuals cannot.28 DHS did not respond to these complaints. If, however, the agency had
interpreted the states’ actions to be a violation of Section 505, its options could have included
withholding federal funds from the states in question or issuing an order that directs the states to
comply with the law. Such action by DHS could have resulted in legal challenges by the affected
states. If that occurred, then it would be up to the federal courts to determine whether state
programs that authorize in-state tuition for unauthorized alien students were a violation of federal
law.
In considering such a question, a court would likely begin by examining the statutory language at
issue. The Supreme Court often recites the “plain meaning rule,” that, if the language of the
statute is clear, there is no need to look outside the statute to its legislative history in order to
ascertain the statute’s meaning,29 and more often than not, statutory text is the ending point as
well as the starting point for interpretation. On its face, the plain meaning of Section 505 appears
clear: unless identical rates are offered to out-of-state residents, unauthorized aliens are not
eligible for in-state tuition rates “on the basis of residence within a State.” Thus, the statutory
language implies that in-state tuition eligibility may be based on factors other than residency,
including factors that are currently the basis for eligibility under many state statutes. Under this
reasoning, a court might determine, as the California Supreme Court did, that state programs that

26 50 Cal. 4th 1277 (Cal. 2010).
27 Id. at 1284. The plaintiffs appealed this decision, but the Supreme Court declined to review the case. Martinez v.
Regents of the Univ. of Cal., 131 S. Ct. 2961 (2011).
28 Press Release, Washington Legal Foundation, WLF Files Civil Rights Complaint Against State of New York
Regarding Benefits for Illegal Aliens (September 7, 2005) http://www.wlf.org/upload/090705RS.pdf; Press Release,
Washington Legal Foundation, WLF Files Civil Rights Complaint Against State of Texas Regarding Benefits for
Illegal Aliens (August 9, 2005) http://www.wlf.org/upload/080905RS.pdf.
29 See, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002); Caminetti v. United States, 242 U.S. 470 (1917).
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authorize in-state tuition for unauthorized aliens are legal as long as eligibility for those programs
is based on factors other than residency. Opponents of this interpretation, however, are likely to
argue that certain state eligibility factors, such as high school attendance within the state,
essentially serve as a proxy for state residency in violation of the congressional intent reflected in
Section 505.

Author Contact Information

Jody Feder

Legislative Attorney
jfeder@crs.loc.gov, 7-8088

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