Undocumented immigrant college students are a separate issue from K-12 students. Public school
students not only have a right to an education, but under compulsory attendance laws, are truant if they do not attend schooling. In addition, the U.S. Supreme Court found that laws denying K-12 children a free public education would “...impose its discriminatory burden on the basis of a legal characteristic over which children can have little control.”
Whether undocumented Kansas students can attend state colleges and universities at in-state tuition is a state funding issue. And whether such students who complete an American high school and attend college can obtain citizenship is a federal immigration issue.
A Kansas law effective July 1, 2004 made undocumented students eligible to attend Kansas public universities at in-state tuition if they attended an accredited Kansas high school for at least three years, graduated or earned a GED, and were admitted to the university. If the student is “without lawful immigration status,” they must file an affidavit with the university indicating that parents have applied to legalize the student’s immigration status or will do so as soon as eligible.
The Kansas law was challenged in Day v. Sibelius by non-resident students and their parents claiming that it violated federal laws, immigration regulations, and their Constitutional right to equal protection. In U.S. District Court on July 5, 2005, the case was dismissed because the plaintiffs had no standing to bring the suit. Basically, granting the few undocumented students in-state tuition did not in any way “injure” the out-of-state students: they would continue to pay out-of-state tuition even if they won. And the new law in no way increased their tuition. In addition, the court held that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 did not give individuals a right to enforce immigration laws; that was the Homeland Security Secretary’s responsibility.
The number of undocumented students attending state universities is relatively low, numbering 243 in the fall of 2007 according to newspaper accounts. The University of Kansas and Kansas State University together only enrolled 18 that year. The in-state benefit allowed them to pay $6000 instead of $15,000 a year tuition. Most Kansas undocumented students attended community colleges where the tuition and state subsidy is much less.
Nine states currently have laws denying undocumented students in-state tuition.
California, however, adopted a tuition law similar to the Kansas law in 2001. This California law was just challenged as part of a larger filing by a group of U.S. students represented by Kris Kobach. This November 15, the California Supreme Court ruled that such students are entitled to the same tuition for public universities as in-state high school graduates. The Associated Press reported that Kobach would appeal the California decision to the U.S. Supreme Court.
Kris Kobach had challenged our Kansas tuition benefit in 2008. The U.S. Supreme Court declined to accept his appeal to review the lower court’s rulings.
Meanwhile, the federal Development, Relief and Education for Alien Minors Act—called the “DREAM Act”—would provide undocumented students who graduate from high school an opportunity for citizenship. It was attached to the National Defense Authorization Act but was filibustered in September 2010. It has been reintroduced as a stand-alone bill and Senate Majority Leader Reid indicated he would send the DREAM Act to the floor during this lame duck session.
At the federal level and In this political climate, chances are slim that the DREAM Act will pass.
At the state level, with our surge in conservative legislators next year, and with Kris Kobach now Kansas Secretary of State Elect, we may likely see an attempt to reverse the Kansas tuition policy.