Before one can even consider the issue of whether or not illegal immigrants should be eligible for financial aid, one must first investigate whether or not these students are even permitted to attend American institutes of higher education. Like the other questions addressed in this paper, there is no clear answer to this question. At this time, there is no federal law prohibiting illegal immigrants from attending institutes of higher education in the United States.
Furthermore, there is no case law directly addressing the issue of whether undocumented aliens have the right to attend public colleges or universities.
However, there is case law discussing the issue for school-aged children, and it appears to support the idea that American public post-secondary schools have an obligation to enroll qualified undocumented students. In 1982 in Plyler v. Doe, 457, U.S. 202 (1982), the Supreme Court "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." (Badger & Yale-Loehr, 2006). As of the present date, there has been no federal law or case law overruling Plyler. While Plyler does not specifically address issues of higher education, it may be indicative of how the Supreme Court would rule in a case specifically addressing illegal immigrant access to institutes of higher education.
As of this date, there is no federal law that denies illegal immigrants the right to attend public schools of higher education in the United States. In fact, there is a federal law that appears to support the right of illegal aliens to attend public educational institutes, or at least to afford enrolled illegal aliens some protection from detection and deportation. The Family Educational Rights and Privacy Act, 20 U.S.C. 1232g; 34 C.F.R. Part 99 "protects the privacy of a student's educational records." (Family Policy Compliance Office, 2006). While the intent of the law was probably not to protect illegal immigrants enrolled in primary, secondary, or post-secondary education, it has resulted in benefits to such students. Because of the Family Educational Rights and Privacy Act, illegal immigrants can openly apply as undocumented students without fear that their colleges will be required to turn over that information to the Immigration and Naturalization Service (INS).
In fact, while schools are required to keep records about students who are legally in the country on student visas, there is no similar requirement for undocumented students. This has actually made it very difficult to obtain information about the number of undocumented students who have been admitted to American institutes of higher education. Furthermore, while U.S. Citizenship and Immigration Services (USCIS) regulations at 8 C.F.R. 214.4(a) allow the USCIS to withdraw a school's approval to issue I-20's, the admission of undocumented students is not one of those reasons. (Badger & Yale-Loehr, 2006).
It appears that even the agencies that should be concerned about the presence of illegal aliens in the United States, are not concerned about detecting these students if they are on campuses. Furthermore, "admitting an undocumented alien to [a] school or letting an undocumented alien live on campus is not harboring" a fugitive, despite the fact that these students are violating federal immigration laws. (Badger & Yale-Loehr, 2006). Therefore, it should be clear that federal law does not prohibit the admission of illegal immigrants to institutes of higher education, and may actually protect that right.
However, it is also important to note that there has been a tremendous change towards immigrants and higher education since 9-11. Prior to the attacks on 9-11, Americans were taking an increasingly liberal attitude towards illegal immigrants. In fact, on May 21, 2001, Representative Howard Berman was introducing federal legislation that would not only guarantee illegal immigrants access to a higher education, but would actually reward them for seeking such an education. The bill would have offered "legal status to illegal immigrant students who want to attend college." (Guevara, 2001). However, because so many Americans died from an attack by people who were illegally in the United States, there has been a tremendous backlash against immigrants, both legal and illegal. While this backlash is understandable, it is also irrational; the majority of illegal immigrants are contributing members of American society, who consider themselves patriotic Americans and would go through traditional venues to obtain the American dream if those venues were available to an unlimited number of potential immigrants, rather than being restricted to a certain number of immigrants from each country per year.
State admission issues
The states have yet to reach a consensus regarding whether they will permit illegal immigrants to attend their public institutes of higher education. Although California now permits undocumented aliens to attend its post-secondary educational institutes, and even allows them to pay in-state tuition, it was not always so welcoming. In fact, with Proposition 187, California once attempted to deny post-secondary education to illegal immigrants. (Badger & Yale-Loehr, 2006). However, "a federal court struck down Proposition 187, holding that the state law contradicted federal law and thus was 'preempted' by federal law." (Badger & Yale-Loehr, 2006). This decision seemed to indicate that individual states do not have the right to refuse admission to their institutes of higher education on the basis on a student's immigration status. However, the decision was vague enough to leave open the possibility that a carefully drafted state law could accomplish that goal.
This decision is important because a 2004 federal court decision seemed to suggest that states had an absolute right to deny admission to illegal aliens. A coalition of immigrant-rights groups filed a lawsuit against Virginia's public universities, alleging that by denying admission to illegal immigrants the universities were "unconstitutionally usurp[ing] the role of the federal government in regulating immigration." (Barakat, 2004). However, a federal judge dismissed part of the lawsuit, holding that "colleges are within their rights to deny admission to illegal immigrants." (Barakat, 2004). Therefore, there was a strong possibility of a jurisdictional split regarding the issue of whether illegal immigrants should be permitted to attend public universities. This issue became moot in April 2006, when Virginia's governor vetoed a bill that would have restricted illegal alien's access to institutes of higher education and "would have prohibited any post-secondary education benefit including in-state tuition for any undocumented migrant." (National Conference of State Legislatures, 2006). Because Virginia never actually enforced any laws that would keep illegal immigrants from enrolling in their institutes of higher education, there was no opportunity to test the validity of such laws.
Therefore, it should come as no surprise that the California decision appears to have had a greater impact on school law. In fact, it is because a federal court struck down California's efforts to keep illegal aliens out of its colleges and universities, it is unlikely that individual public institutions would be able to enact similarly restrictive policies. However, there is some question whether or not private institutions would be able to restrict illegal alien enrollment. Although the issue is complex, the reality is that most private institutions subject themselves to state and federal regulations by accepting federal financial aid. Furthermore, the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and state human rights laws all prohibit discrimination on the basis of national origin. (Badger & Yale-Loehr, 2006). It is likely that private institutions would violate equal access provisions if they denied admission to illegal immigrants. However, private institutions have been permitted to violate equal access provisions in other circumstances. For example, there are still post-secondary private institutions that are segregated by sex and by religion. If a school can deny admission to U.S. citizens on the basis of sex or religion, it may be very possible that a federal court would uphold its right to deny admission to a non-citizen, regardless of whether that person was legally or illegally within the country.
Federal financial aid
While the federal government appears to support the right of illegal immigrants to attend institutes of higher education, it is unwilling to take steps to make this access meaningful. For example, the federal government absolutely does not extend federal financial aid privileges to illegal immigrant students. In fact, when investigating the various laws that govern the provision of financial aid to students, it quickly becomes apparent that most illegal immigrants are not going to be able to secure actual financial aid. First, "the majority of all student aid, including Federal student aid, requires the recipient to be a U.S. citizen or permanent resident (green card holder) or an eligible non-citizen." (Kantrowitz, 2006). In fact, in order to receive federal student aid, a student must be a U.S. citizen or eligible non-citizen, possess a valid Social Security number, and be enrolled or accepted for…