Michael A. Olivas
This brief note summarizes recent developments on an odd feature of the immigration/higher education phenomenon of states denying resident tuition status or financial aid to US citizen college students whose parents are undocumented. While this would seem an unusual (and unconstitutional) matter, it has arisen often enough that it is worth commenting upon, particularly as several cases have been brought to overturn the practice. Inasmuch as the objection to undocumented college students turns on their lack of lawful presence in the country, one would think that this practice of denying citizen students their rights would have been called forth both by accomodationists on one side and restrictionists on the other side. Rather, the loud silence that has occurred shows the worst of both worlds: progressives thinking that the issue is so absurd and wide of the mark that it will resolve itself once the light is shone upon the offending practice, while nativists are so determined to extirpate undocumented parents that they have tolerated these practices as the inevitable work of birthright citizenship being extended to their undeserving children. Whatever the reasoning, the issues have continued to arise, and have extended beyond the narrow issue of postsecondary education law.
The first instance I have been able to find of this practice in the higher education context was a 2006 suit by the ACLU of Indiana, that contended the state’s 21st Century Scholars program was unconstitutional because its eligibility requirements excluded otherwise-eligible US citizen and LPR students based on the undocumented status of their parents. The program had operated with essentially the same immigration-related eligibility since its establishment in 1990. After extensive discovery and negotiations, the ACLU obtained a favorable settlement in E.C. v. Obergfell, signed on March 2, 2007, allowing all academically-eligible Indiana LPR and citizen children to apply for the program, irrespective of their parents’ immigration status. During this time, a similar case was brought in California, which had been excluding USC children from eligibility from the state’s financial aid programs, including Cal Grants, if their parents were out of status. A number of immigrant organizations filed suit in November, 2006 to challenge California’s postsecondary residency and financial aid provisions in Student Advocates for Higher Education et al v Trustees, California State University et al. Citizen students with undocumented parents were being prevented from receiving the tuition and financial aid benefits due to them, at least in part because the California statute was not precisely drawn (or was being imperfectly administered). The challenge highlights several overlapping policies: immigration, financial aid independence/dependence upon parents, and the age of majority/domicile. The state agreed to discontinue the practice, and, as had happened in Indiana, entered into a consent decree, resolving the matter in the plaintiffs’ favor. The order overturned CSU’s odd take on undocumented college student residency—that a citizen, majority-age college student with undocumented parents, was not able to take advantage of the California statute, even if the student were otherwise eligible. (In a footnote on this practice, the state has since extended the financial aid program even to the undocumented, beginning in January, 2013.)
Similar issues arose in Virginia and Colorado on other immigration-related admissions and residency issues, but litigation was averted when AGO’s were issued in both states, finding for the students: the Virginia attorney general and the Colorado attorney general both ruled that U.S. citizen children could establish tuition residency status on a case-by-case basis, even if their parents were undocumented. (Undocumented children in both the states’ colleges are ineligible for resident tuition.) These AGO rulings made a virtue of necessity, inasmuch as citizen children who reach the age of majority by operation of law establish their own domicile, so that their parents’ undocumented status is irrelevant to the ability of the children to establish residency.
Despite these cases and the widespread public attention paid to them in the mainstream press and in the immigrants’ rights community, additional examples arose where states were parceling resident tuition status and financial aid eligibility on the immigration status of the parents, rather than upon the US citizen-status of their children, otherwise eligible for the programs. On October 20, 2011, the Southern Poverty Law Center filed Ruiz v. Robinson, which would overturn the state statute and require Florida to extend its in-state tuition rates to citizen residents who qualify, even if their parents were undocumented. When it was discovered that existing New Jersey policy denied state financial aid to a student who is a U.S. citizen, but whose mother was undocumented, suit was filed by the NJ ACLU on this issue in October 24, 2011: A.Z., a minor, by B.Z., her guardian v. Higher Education Education Student Assistance Authority of New Jersey. A companion suit has also been filed in New Jersey on this issue, with another student in similar status. Cortes v. Higher Education Education Student Assistance Authority of New Jersey. Both New Jersey cases are making their way through the process, as of May, 2012.
Such benefits and status issues have arisen in a number of other non-educational contexts as well. For example, the Indiana ACLU, after winning the first of these financial aid challenges, five years later challenged the Indiana system of requiring Social Security numbers to validate the paternity of children born in Indiana hospitals. In L/P et al. v. Commissioner, the court held: “The Commissioner is permanently enjoined to accept paternity affidavits, filed pursuant to Indiana Code § 17-37-2-2.1, submitted by parents of children born in Indiana where one or both parents do not have a Social Security number and cannot obtain a Social Security number as a result of their immigration status.”
Scorecard of decisions, as of April, 2012—Holding that the status of parents makes no material difference to their USC children: Two AGO’s (VA and CO), two settled cases (IN and CA); Two cases making their way through the courts (FL on residency tuition and NJ on financial aid).
There is also a small but growing literature on these issues, both scholarly and news-story resources. I list some at the bottom, and invite others, as always, to contribute either privately off line or online for all to see. I will report in regularly on these, as I am following them and trying to provide technical assistance to the parties. I have also attached the settlement information.
EC v Obergfell, 1:06-cv-00359-DFH-WTL
L.P., et al., Plaintiffs, v. Commissioner, Indiana State Sept. of Health, et al., No. 1:10-CV-01309 TWP-TAB
A.Z., a minor, by B.Z., her guardian v. Higher Education Education Student Assistance Authority of New Jersey,
Student Advocates for Higher Educ. v. Trustees, Cal. State Univ., No. CPF-06-506755 (Cal. App. Dep’t Super Ct. Feb. 26, 2007); CAL. EDUC. CODE §68040 (West 2010); CAL. CODE REGS. tit. V, §41904 (2010).
Wendy Ruiz v. Gerard Robinson, Florida Commissioner of Education, in his official capacity and Frank T. Brogan, Chancellor of the State University System, in his official capacity, http://www.splcenter.org/get-informed/case-docket/wendy-ruiz-et-al-v-gerard-robinson-et-al.
Raul Dominguez et al. v. State of Texas, No. SA-07-CA-0549-FB, W.D. Tex., S.A. Div., Nov. 6, 2008 [settlement agreement with notice of withdrawal] Dkt106 - Response in Opposition to Motion | Dkt107 - Notice of Withdrawal of Motion to Amend | Dkt105 - Motion to Amend Judgment and Order
http://www.maldef.org/immigration/litigation/dominguez_v_texas/index.html (Dominguez motions)
Briefs in Cortes v. HESAA, NJ
Cortes Response to MTD
Cortes Motion Dismiss
Technical and policy literature on the issue of the taxation and financial services for undocumented persons, including college students:
Paula N. Singer & Linda Dodd-Major, Identification Numbers and U.S. Government Compliance Initiatives, 104 TAX NOTES 1429 (2004)
STAFF OF JOINT COMM’N ON TAXATION, PRESENT LAW AND BACKGROUND RELATING TO INDIVIDUAL TAXPAYER IDENTIFICATION NUMBERS (“ITINS”) 3 (2004) (“[T]he [Internal Revenue Code] does not contain special rules regarding the treatment of illegal aliens, or the tax identification number requirements with respect to illegal aliens . . . .”)
Francine J. Lipman, The Taxation of Undocumented Immigrants: Separate, Unequal, and Without Representation, 9 HARV. LATINO L. REV. 1 (2006)
Cynthia Blum, Rethinking Tax Compliance of Unauthorized Workers After Immigration Reform, 21 GEO. IMMIGR. L.J. 595 (2007)
John Coyle, The Legality of Banking the Undocumented, 22 GEO. IMMIGR. L.J. 21 (2007)
Michael A. Olivas, Undocumented College Students, Taxation, and Financial Aid: A Technical Note, 32 REVIEW OF HIGHER EDUC. 407 (2009).
GOV’T ACCOUNTABILITY OFFICE, FED. STUDENT AID: HIGHLIGHTS OF A STUDY GROUP ON SIMPLIFYING THE FREE APPLICATION FOR FED. STUDENT AID (2009), http://www.gao.gov/new.items/d1029.pdf
Francine J. Lipman, The “Illegal” Tax (IHELG Research Monograph 11-09, 2012), http://www.law.uh.edu/ihelg/monograph/11-09.pdf
Matthew B. Allen, Comment, The Unconstitutional Denial of a Texas Veterans Benefit, 46 Hous. L. Rev. 1607 (2010), http://www.houstonlawreview.org/2010/03/29/volume-46-number-5-spring-2010/
Op. Colo. Att’y Gen. No. 07-03 (2007)
Memorandum from Ronald C. Forehand, Senior Assistant Att’y General, Chief, Education Section to Lee Andes, State Council of Higher Educ. for Va. (March 6, 2008).
Overcoming the Barriers Faced by Immigrants: A Briefing Report by the New Jersey State Advisory Committee to the United States Commission on Civil Rights (September, 2010), http://www.law.umaryland.edu/marshall/usccr/documents/cr12nj22010.pdf
Diana Penner, Indiana Relents on College Aid Program; Parents' Immigration Status No Longer Would Matter When Applying for State Scholarship, INDIANAPOLIS STAR, Jan. 8, 2007, at 1
Susan Kinzie, The University of Uncertainty: Va. Children of Illegal Immigrants Lack In-State Status, WASH. POST, Mar. 14, 2008, at B1, http://www.washingtonost.com (accessed from homepage by entering article title in search)
Susan Kinzie, U-VA Accepts Residency Claim, WASH. POST, Mar. 24, 2008, at B5
Allison Sherry, Tuition Tussle Takes Shape, DENVER POST, Aug. 15, 2007, at A1,
http://www.denverpost.com (accessed from homepage by entering article title in search).
Ray Downs, U.S. Citizens in Fla. Charged Higher Tuition Rates Because of Parents' Immigration Status, Christian Post, October 31, 2011,
New Jersey Denies College Financial Aid to U.S. Citizen Because Her Mother is Undocumented, Fox.com, June 14, 2011,
Michael R. Vasquez, U.S.-citizen children of immigrants protest higher tuition rates, Miami Herald, Oct. 24, 2011, at B1