Can States Provide Access? Update on In-State Tuition Policies for Undocumented Students

The first iteration of the Development, Relief, and Education for Alien Minors (DREAM) Act was introduced on August 1, 2001, just a month before the United States would feel the impact of the September 11 terrorist attacks that would mark a cultural shift in the nation’s view on immigration. I was eleven at the time, and for the next year, was riddled with insults alongside my peers who looked different, or who had “foreign-seeming” last names like mine. I didn’t catch the media coverage on the new bill, despite the fact that its primary sponsor, Representative Luis Gutierrez, was from my home state of Illinois, but the events of September 11 inadvertently steered my life in the direction of immigration advocacy. By the time I was a Junior in college, I was avidly following the 2010 DREAM Act, which came closer to passing that year than ever before with the support of President Barack Obama and a Democratic House of Representatives. After two decades without a legislative solution, the Obama Administration used executive authority to create the Deferred Action for Childhood Arrivals (DACA) program in 2012, which acted as a compromise to providing a citizenship pathway by, as the name infers, deferring deportation for eligible undocumented individuals. Today the future of DACA is held in limbo, following the September 2017 announcement of its rescission, and the failure of the DREAM Act to ever clear both chambers of Congress. 

The high-stakes immigration debate which has occurred in Congress over the past few months follows a twenty-six-year-long legislative arc in consideration of a pathway to citizenship for young undocumented individuals. This history lends to the anticipation felt by both policymakers and the general public regarding this week’s Senate immigration debate and the possible introduction of new immigration legislation. In the coming weeks NASPA is offering several (free!) opportunities for those interested to learn more about the state of federal immigration policy in the U.S., its impact on student affairs, and how to get involved. For an overview on the current state of DACA and immigration reform, tune into next week’s, February 22, Policy Briefing Series, Policy Highlights: Immigration and International Students. For an advocacy focus, join us for next month’s, March 13 Hill Days Live Briefing, Hill Days: Immigration and International Students, featuring Grant Azdell, Vice President of Student Affairs and Dean of Students of Randolph-Macon College; and Maria Blanco, Executive Director, UC Immigrant Legal Services Center. 

In the meantime, and as we wait for the outcome of this week’s Senate debate, this post considers how the current political climate impacts state-level policy, specifically that of in-state tuition, for undocumented immigrants in 2018. 

DACA Rescission Impact on In-State Tuition Legislation

In addition to a pathway to citizenship, new bi-partisan legislation could create a permanent solution for DACA program recipients. While the DACA rescission continues to be challenged in federal courts (note: due to January and February judicial decisions, DACA recipients may apply for renewal at least up until the scheduled March 5 expiration), and a bitter Congressional battle ensues, states legislatures are back in session and have begun to introduce legislation largely affecting the success of both DACA recipients and undocumented students overall. One of the primary ways in which states can respond to an uncertain federal outlook is through inclusive in-state tuition legislation. In this context, exclusive policies refer to those which either explicitly attempt to restrict in-state tuition options for undocumented individuals, or to ban them from admission entirely, while inclusive policies increase financial feasibility and access.

Federal-level uncertainty has thus far had not had a trending impact on state-level legislation, but there have been a few case examples of how the DACA rescission has affected local policy. Undocumented students in the state of Georgia, already one of a small handful of states with exclusive in-state tuition policies for undocumented students, have met yet another setback to inclusive policymaking due to the DACA rescission. Georgia Senate Bill 492 (GA SB 492), passed in 2008, explicitly denies in-state tuition to undocumented individuals attending public colleges or universities, and in 2010, the University of Georgia Board of Regents adopted an admissions policy which bans select schools from admitting undocumented students entirely. Immigration advocates have been in support of inclusive policies such as the 2001 House Bill 1810 (GA HB 1810) and 2011 House Bill 59 (GA HB 59), but these bills failed to make headway in the state legislature. In spring of 2017, DACA recipients sought in-state tuition eligibility with the Georgia Court of Appeals, but after the DACA rescission, the Court of Appeals reversed a lower court decision to allow in-state tuition due to DACA no longer having “the force and effect of a federal law.”

Other states that stand at risk of losing in-state tuition inclusivity advancement are those with policies that primarily extend specifically to DACA recipients. A 2017 policy analysis conducted by Amy Nunez, and Gretchen Holthaus of Indiana University found that three states currently have inclusive policies that solely extend to DACA recipients, such as New Jersey (S 2479), which currently requires that undocumented students must meet the Department of Homeland Security's eligibility criteria and apply for or have already retained DACA status. Upon the expiration of DACA, as with any policy using DACA as a measure of eligibility, the policy would need to be amended to continue to be inclusive of undocumented students moving forward.

2018 Legislation In-State Tuition for Undocumented Students

Since the start of the 2018 State Legislative Session, NASPA’s Policy and Advocacy Team has seen movement on 16 bills across 11 states regarding in-state tuition for undocumented immigrants. Legislation has been introduced more readily than last year, where states introduced 21 bills across 12 states by July of 2017.

Of the 16 bills introduced in 2018, 13 have been introduced, one bill has passed the first chamber, and three bills have failed. 14 bills are inclusive policies and three bills (SD SB 103, TN HB 2582, TN SB 2569) are exclusive policies. Like the Georgia Board of Regents admissions policy, South Dakota Senate Bill 103 (SD SB 103), effectively tabled on February 8, would prohibit individuals not lawfully in the United States from attending any public postsecondary educational institution or from receiving certain financial assistance. According to University Leaders for Educational Access and Diversity (uLEAD) South Dakota has never before introduced legislation to extend or deny in-state tuition to undocumented students. Similarly, Tennessee has never had an in-state tuition policy in place, which makes it unclear what power Tennessee House Bill 2582 (TN HB 2582), which limits in-state tuition to United States citizens, would have. Tennessee is also the only state considering both inclusive and exclusive policies. Tennessee House Bill 2429 (TN HB 2429), introduced on February 5, 2018 would expand in-state tuition to persons without legal status given they sign an affidavit stating they will pursue legal status upon eligibility.

Virginia is the only state during this legislative cycle to introduce a bill explicitly directed to DACA recipients. Virginia Senate Bill 237 (VA SB 237), introduced on January 17, 2018, states that absent congressional intent to the contrary, any individual currently granted DACA status has the capacity to intend to remain in the Commonwealth indefinitely and is therefore eligible to establish domicile and receive in-state tuition charges at any public institution of higher education in the Commonwealth. This bill, if passed, would codify a 2014 decision made by Attorney General Mark Herring that current Virginian law should be read to allow DACA recipients to receive in-state tuition.

Overall, legislation introduced at the beginning of the 2018 cycle continues to move toward inclusive policies for undocumented students, despite the back and forth in Congress. To keep up with the changing conversation on issues affecting student affairs professionals, don’t forget to sign up for upcoming webinars with the Policy Briefing Series, and NASPA Hill Days.