College Admission and Financial Aid

College Admission and Financial Aid for Illegal Immigrants

Illegal immigration is one of the most controversial topics in modern society. Some people advocate severely punishing illegal immigrants, increased border patrols, and greater restrictions on legal immigration. On the other hand, some people believe that America should open up its borders, allow larger numbers of legal immigrants per year, and extend the rights of American citizenship to immigrants, without regard to their legal status. Regardless of one's position on the issue, the fact remains that an increasing number of illegal immigrants have been graduating from American high schools each year. In fact, approximately 65,000 illegal immigrants graduate each year. (Barbassa, 2006). Not surprisingly, this has resulted in an increasing number of illegal immigrants applying to American higher educational institutions each year. This leaves the institutions with two complex problems. The first problem is whether or not the institutions should admit illegal immigrants for study. The second problem, which depends on how an institution chooses to resolve the first issue, is how these higher educational institutions should deal with the provision of financial aid to students who are illegal immigrants. How the federal government, state governments, and individual schools choose to resolve these issues can have a tremendous impact on individual undocumented students seeking to obtain college educations, and a broader impact on whole groups of immigrants.

Why are college admission and financial aid for illegal immigrants such controversial issues? Advocates for financial aid for illegal immigrants make several cogent arguments. The first argument often centers on the fact that many of these immigrants were brought here, as children, by their parents, and have not intentionally broken U.S. immigration laws. Furthermore, many illegal immigrants are undocumented because of bureaucratic paper delays, and will receive their documentation either while attending the institute of higher education, or shortly thereafter. Advocates of financial aid for illegal immigrants also point to the fact that these people are staying in the United States, regardless of whether or not they obtain a higher education. Because of their illegal status, undocumented students are frequently among the more economically disadvantaged people in America. Therefore, their ability to obtain a higher education depends largely upon their ability to obtain financial aid or other forms of financial assistance through institutes of post-secondary education. Because of this financial disadvantage, many advocates suggest that denying these undocumented students the right to financial aid is, therefore, tantamount to denying them a post-secondary education. Doing so is ultimately detrimental to the American economy, because "education increases tax revenues and decreases spending on welfare, health care, and law enforcement." (Kantrowitz, 2006). The simple fact is that most illegal immigrants are not being subjected to even the threat of deportation, and that they will remain in the country whether or not they obtain a post-secondary education. Therefore, advocates of college admissions and financial aid for illegal immigrants suggest that post-secondary education benefits not only illegal immigrants, but also the rest of American society.

Advocates of financial aid for illegal immigrants have an additional argument. Because many illegal immigrants would simply not be able to attend post-secondary institutions without some type of financial aid, and a high school diploma has little value in the workforce, proponents of this movement suggest that increasing access to higher education decreases the rate of high school dropouts in the illegal immigrant population. For example, "in 1986, an estimated 86,000 students dropped out of Texas public schools costing the state $17.12 billion. By 1998, the number of dropouts increased to almost 1.2 million with the costs estimated at $319 billion." (National Conference of State Legislatures, 2006). By extending the possibility of a college education to illegal immigrants, it is hoped that fewer of them will drop out of high-school, resulting in a lower fiscal cost to the state, regardless of whether those students actually enroll in a post-secondary educational institution.

Opponents of college admissions and financial aid for illegal aliens also make several valid points. They point out that many illegal immigrants come from families that have escaped the very tax burden that funds financial aid and most public educational institutions. Therefore, when these undocumented students receive educations at public institutes or financial aid, their opponents say that they do so without having ever contributed to the taxes that fund such programs. In many cases this argument may be true, but there are many instances where it may not be true. Undocumented aliens oftentimes do shoulder a portion of the tax burden by obtaining tax identification numbers, which are unrelated to their status as citizens, but identify them for tax needs. Furthermore:

Illegal immigrants pay taxes just like everyone else. For example, when illegal immigrants purchase goods in California, a refrigerator for example, the store where they buy such merchandise is required by law to charge 7.5% of the price in taxes. Therefore, no matter what misinformed people say, everyone who lives in the United States, legally or not, has to pay taxes. (Guevara, 2001).

However, opponents also correctly mention the fact that many state colleges and universities are already extremely overburdened by applicants. There is absolutely no way to deny the validity of that argument; some of the more popular educational institutes have seen their number of applicants double or even triple within the last 20 years. Furthermore, this increase in applications is not solely due to a greater number of unqualified students applying to those institutions; the number of qualified applicants has also continued to increase. The result has been that many public universities and colleges that were previously accessible for average students have become more selective, and many U.S. citizens will fail to meet their more-stringent admission requirements.

Therefore, admitting illegal aliens to schools reduces the number of spaces available to citizens and non-citizens with appropriate documentation.

In addition, opponents point out that the competition for financial aid is even fiercer than the competition for admission. The fact is that there is only so much financial aid available, and there is a tremendous need for financial aid among citizens and legal immigrants. Opponents correctly indicate that making financial aid available to undocumented immigrants reduces the amount available to U.S. citizens and documented aliens. Even allowing illegal immigrants to access private scholarships theoretically reduces the amount of financial aid available to citizens and documented aliens, because that scholarship money would theoretically be made available to students regardless of what type of conditions were placed on the distribution of scholarship money. In addition to financial aid, undocumented students are sometimes eligible for in-state tuition. In-state tuition provides significant savings for students, because in-state tuition is frequently less than half of what out-of-state students would pay in tuition. Opponents of in-state tuition for illegal immigrants point out that doing so places illegal immigrants in a more favorable tuition position than U.S. citizens who reside in other states. Finally, opponents point out that permitting illegal aliens to enroll in post-secondary schools, receive financial aid, or pay in-state tuition rates are all contrary to U.S. immigration laws and reward people for breaking the law.

Regardless of one's personal position on the issue, research into the issue makes one thing crystal clear: American institutes of higher education have not reached a consensus regarding the admission of illegal immigrants or the provision of financial aid to illegal immigrants. This is not surprising given that the federal government's positions on the issue seem to vacillate and appear inconsistent. Individual states seem to have more consistent positions regarding the issues, which means that many students' rights and access to education are dependent upon things such as where they are domiciled, where they attended high-school, and how long they have been at a particular institute of higher education. Furthermore, when states have not been clear about their guidelines for illegal immigrants, the decisions have been left to individual institutions, which can result in tremendous disparity from college to college. Despite these difficulties, it is relatively easy to spot general trends in American institutions. First, almost all institutions, both public and private, acknowledge that illegal immigrants have a right to attend institutions of higher education. In addition, there is some type of consensus regarding financial aid; generally, financial aid is not available for illegal immigrants. However, there are ways for illegal immigrants to obtain financial aid. In order to understand how illegal immigrants can obtain financial aid, and what type of schools offer this aid, this paper approaches financial aid from several different viewpoints. First, the paper investigates the general approach to financial aid. This approach includes a discussion of federal laws, state laws, federally-sponsored financial aid, state-sponsored financial aid, public scholarships, and private scholarships. However, a general overview only reveals what type of aid may be available to undocumented students. Therefore, the paper will also discuss the specific financial aid policies of various institutions. Combined, the two approaches will give the reader a greater understanding of the whether illegal immigrants have access to American institutes of higher learning, the conditions, if any of that access, and the availability of financial aid to illegal immigrants wishing to study at American post-secondary institutes.

Federal admission issues

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 enrollment at an approved university. (U.S. Department of Education, 2006). Illegal or undocumented immigrants are not eligible non-citizens. On the contrary, eligible non-citizens include permanent residents, citizens of U.S. territories, and U.S. residents who have received political asylum. Furthermore, even though students who are citizens are eligible for financial aid regardless of their parents' citizenship status, if parents attempt to provide fake social security numbers on applications forms, or submit a number that is only valid for work purposes, then the child's financial aid application will be rejected. (Kantrowitz, 2006). Finally, the federal government also influences the distribution of state-based financial aid, and the federal government has enacted laws that are aimed at reducing state ability to grant financial aid to undocumented students.

State financial aid

It is important to note that not all states offer actual state-based financial aid to students. In fact, many states have no established means of financial aid for higher education. In addition, off those states that do offer such aid, only a few allow undocumented students to access such aid. What is truly unusual is that one of the states that is the most liberal about allowing undocumented students access to state financial aid is also a state that is generally associated with restricting illegal alien rights and trying to prohibit illegal immigration. Texas is one of the few states to permit illegal aliens to access state financial aid. In fact, Texas has one grant, the Texas Public Education Grant, which is specifically designed to help non-resident or foreign students who can show financial need. (Texas Financial Aid Information Center, 2006). Furthermore, Texas offers a variety of other grants, fellowships, and scholarships that do not have citizenship as an eligibility requirement, as long as the applying student graduated from or attended a high-school in Texas for a sufficient period of time. Studying Texas' financial aid provisions is important because it was one of the first states to offer financial aid and other financial incentives to illegal aliens seeking a higher education. It is also important because, despite Texas' large illegal immigrant population, Texas has not experienced any tremendous economic hardship from extending these privileges to illegal aliens.

While nine other states have followed Texas' lead and now permit undocumented students to pay in-state tuition, they have been reluctant to allow illegal aliens access to state financial aid. For example, Arizona, which has an extremely high number of illegal aliens, has made attempts to bar illegal aliens from receiving state-sponsored college financial aid. (Billeaud, 2005). What makes this action so noteworthy is that it implies that such students were previously able to access such aid. Furthermore, there are several other states that have recently taken steps to limit illegal immigrant access to state financial aid resources.

Other states have recently tried to open up access to those same resources. For example, as of May 2006, California did not extend financial aid to illegal aliens. However, the California Assembly considered a law that would have permitted students in the California state university system to receive state financial aid. California had over $1 billion in state aid available for students, but the competition for those funds was stiff even without illegal immigrants being eligible for those funds. (Miranda, 2006). Therefore, it should come as no surprise that, at the time of its proposal, the law generated protest from some California state students who were already eligible for the state's financial aid program. While the California assembly passed the law, Governor Schwarzenegger vetoed the law. Schwarzenegger cited the state's limited funds and the fact that undocumented students were already eligible for in-state tuition rates as his reasons for vetoing the bill. (Parker, 2006). As a result, illegal immigrants in California remain ineligible for state financial aid. However, they continue to be eligible for in-state tuition rates, which provide a tremendous saving.

In-State tuition

In contrast to the federal government, many states do not offer formal financial aid programs. However, almost all states offer different tuition rates to residents of those states than to non-residents. This in-state tuition provides a substantial savings over out-of-state tuition rates and makes tuition affordable for people who would otherwise be unable to afford it. Non-residents can qualify for in-state tuition rates under certain circumstances. Therefore, to determine whether or not individual states offer any type of financial aid or financial incentive to illegal immigrants, it is logical to investigate whether or not states permit undocumented students to receive in-state tuition rates.

The federal government has a clear position regarding illegal immigrant eligibility for in-state tuition rates. In 1996, Congress passed a law prohibiting undocumented students from receiving in-state tuition rates at public schools. According to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996:

an alien who is not lawfully present in the United States 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. (110 Stat. 3009-546, 505).

While the Immigration Reform and Immigrant Responsibility Act of 1996 does not prohibit states from offering illegal immigrants in-state tuition rates, it requires states to offer all students who are citizens or nationals their in-state tuition rates if they offer any undocumented students those rates. This works a tremendous hardship on state schools that wish to offer in-state tuition rates to undocumented state residents, because it prevents them from charging higher tuition rates for non-residents of the state.

However, as will be demonstrated later, federal regulations have not been successful in limiting state aid to illegal immigrants. Furthermore, it is uncertain whether federal law will continue to prohibit states from offering illegal immigrants in-state tuition rates. Both the House and the Senate have pending legislation that would repeal Section 505 of the Immigration Reform and Immigrant Responsibility Act of 1996. While the bills have different mechanisms, both of them would permit states to charge in-state tuition to illegal aliens. In fact, the Senate's bill would actually "provide a mechanism for undocumented students of good moral character to become legal permanent residents and to qualify for Federal student aid." (Kantrowitz, 2006). The Senate bill shows a return to pre-9-11 thought, and more of a willingness to accept and embrace illegal immigrants as students. However, it is important to note the differences between the current proposed legislation and the legislation that was pending in 2001; the current legislation would make students permanent legal residents, while the 2001 legislation was going to give them actual citizenship.

Whatever the limitations of the current proposed legislation, it is important to understand that this legislation has not yet passed. In response to the federal uncertainty, several states have passed laws aimed at circumventing the Immigration Reform and Immigrant Responsibility Act of 1996. In fact, there are currently ten states, Texas, California, New York, Utah, Illinois, Washington, Nebraska, New Mexico, Oklahoma, and Kansas, which allow undocumented immigrants to obtain in-state tuition benefits. (Kantrowitz, 2006). These laws tie the payment of in-state tuition rates to attendance of in-state high schools for a certain number of years. In addition, some, but not all, schools in Georgia allow illegal immigrants to pay in-state tuition rates. (Kantrowitz, 2006). Furthermore, several states have legislation pending, which would allow illegal immigrants to pay in-state tuition rates. These states include Colorado, Connecticut, Florida, Hawaii, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, North Carolina, Oregon, South Caroline, Tennessee, and Virginia. (Kantrowitz, 2006). Therefore, it is conceivable that within the next year half of all of the U.S. states will permit their public institutes of higher education to offer in-state tuition rates to undocumented immigrants. In fact, due to the number of states offering in-state tuition to illegal immigrants and the distribution of such immigrants within the United States, the present tuition picture for illegal immigrants is very promising. Currently "the majority of undocumented students in the U.S. can already count on paying the same tuition as the citizens who sit next to them in class." (Barbassa, 2006).

The obvious question is, given that federal law prohibits state institutions from allowing illegal immigrants to pay in-state tuition rates without offering those rates to all of their students, how can states arrange for illegal immigrants to pay in-state tuition rates? Some states simply do not ask "students whether they are in the U.S. legally." (Kantrowitz, 2006). Other states base eligibility for in-state tuition on factors other than residency in the state; instead, they offer in-state tuition rates to those who have attended or graduated from in-state high schools. (Kantrowitz, 2006). Furthermore, some illegal aliens are able to access in-state tuition rates even if they are only residing in a state for purposes of attending an institute of higher education in that state. Such aid is generally only available after a certain number of years of attendance in-state, but can still offer a significant tuition savings for students.

However, it is important to keep in mind that not all states permit undocumented immigrants to pay in-state tuition rates. In fact, many states have either passed legislation forbidding illegal immigrants from paying in-state tuition rates, or have failed to pass laws that would permit illegal aliens to pay in-state tuition rats. For example, Virginia's legislature "passed a law barring illegal aliens from receiving in-state tuition." (Kantrowitz, 2006). Although the governor of Virginia vetoed the law, Virginia's Attorney General interpreted existing law as requiring state institutes of higher learning to charge illegal aliens higher tuition rates. (Kantrowitz, 2006). The current tuition battle in Virginia is a complicated one, and is revisiting a battle from 2004, where the legislature attempted to prevent illegal aliens from attending public higher education institutions in the state. Despite the complexities of the Virginia issue, it is not an unusual battle.

In fact, there are several states where legislation that would ban in-state tuition for illegal aliens is pending. These states include Alabama, Alaska, Florida, Mississippi, and North Carolina. (Kantrowitz, 2006). While decisions in some states, like Alabama, may not have a tremendous impact on the total illegal immigrant population, Florida has a huge illegal immigrant population, and curtailing access to in-state tuition in Florida would have a big impact on the illegal immigrant population. Furthermore, it is important to note that some of the states where such legislation is pending are states that currently permit illegal aliens to pay in-state tuition rates. Of course, the fact that such legislation is pending does not mean that it will pass; for example, a "bill to ban in-state tuition for illegal aliens was defeated in Arizona in March 2005). In addition, not all states have taken steps to bar undocumented students from receiving in-state tuition rates. For example, Wisconsin has not barred illegal aliens from receiving in-state tuition rates, but has simply failed to pass laws that would give illegal immigrants the right to obtain such rates. (Kantrowitz, 2006). The result is that whether an illegal alien is entitled to pay in-state tuition rates at public institutions is largely dependent upon where that alien attended high-school or where his or her family established residence.