Unauthorized, Ineligible, Deferred, and Underserved: Realities of Undocumented College Students

Unauthorized, Ineligible, Deferred, and Underserved: Realities of Undocumented College Students

Karen Miksch
University of Minnesota
Jeffrey C. Sun
University of North Dakota

Overview

In July 2013, Anthony Carnevale and Jeff Strohl described college readiness, access, and completion between majority and underrepresented groups. As reported in “Separate and Unequal,” they presented the disparate opportunities that African American and Hispanic college students encountered relative to White students. While their report indicated that the actual numbers of African American and Hispanic students enrolling in higher education has increased, they offered overwhelming evidence of societal stratification by race in terms of type of institution and degree progress. For instance, African American and Hispanic college students are more likely than Whites to attend an open access college than a selective college, and they are less likely than Whites to attain a baccalaureate degree (Carnevale & Strohl, 2013). These data points offer some evidence of a stratified higher education system. Yet, another societal barrier also exists for a class of individuals within higher education – undocumented college students.

In many respects, undocumented college students face legally sanctioned inequalities. For instance, undocumented students are ineligible for federal financial aid and severely restricted in terms of employment. What they encounter is an obvious form of societal stratification that makes higher education nearly unattainable. This article outlines ways in which the stratification is manifested and how colleges can support these underserved, and often forgotten, students.

The precise number of undocumented students in the United States is unclear and difficult to determine. The Migration Policy Institute estimates that approximately 50,000 to 60,000 students, who lack immigration documentation, graduate every year from United States high schools (Batalova & McHugh, 2010; see also Educators for Fair Consideration, 2012). Given financial and employment barriers, the number of those undocumented students who actually attend college is likely a lot lower. For example, according to the PEW Hispanic Center, in 2008 the percentage for United States born immigrants and legal immigrants with some college experience or a college degree was 58% and 60%, respectively. However, estimates of undocumented individuals in the United States with some college experience or a college degree are only 26%. The data disparity highlights severe educational access hurdles taking place for undocumented students to experience college or achieve a degree. Although a recent federal program provides work authorization and permission to stay in the United States for some of these students, there remain significant barriers to higher education.

State and Federal Policies

State Policies on Attendance/Enrollment

Most colleges and universities permit undocumented students to attend their institution. However, as we explain below, the cost and lack of financial assistance makes a college education unaffordable for many undocumented students.

Some systems have banned undocumented students from enrolling (Russell, 2011). In Alabama, the public community college system prohibits enrollment of undocumented students (Russell, 2011). Similarly, the South Carolina public colleges require documentation of a student’s lawful presence before one may enroll (S.C. Code Ann. § 59-101-430 (2013)). In Georgia, the Board bars undocumented students from enrolling at its state institutions that have denied admission to academically qualified students in the past two years (Russell, 2011).

State Policies on Tuition Rates

Undocumented students’ prospects for completing their education is limited because they are often considered to be “out-of-state” or international students and thus ineligible for in-state tuition. However, in 14 states, legislation grants students, who attended and graduated from a high school in the state, eligibility for in-state tuition. The law covers undocumented students who can demonstrate attendance at a high school within the state for the requisite number of years and proof of graduation from a high school within that state. As of September 2013, states with these laws are: California, Colorado, Connecticut, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Mexico, New York, Oregon, Texas, Utah, and Washington. A few states (e.g., Oklahoma and Rhode Island) permit in-state tuition for undocumented students when the Board of Regents approves such a policy.

Of course, these laws did not proceed unchallenged. California was one of the first states to roll out a law permitting undocumented students to pay in-state tuition. In 2001, the California legislature enacted a law exempting certain nonresidents including undocumented students from paying nonresident tuition. ¹ The law stated that eligible students must have attended a California high school for at least three years and graduated or attained an equivalency certificate such as a general educational development (GED) certificate.

Soon after the law’s passage, a group challenged its legal permissibility. The group contended that the California law violated a 1996 federal law. The federal law places some limits on an undocumented college student’s eligibility for higher education benefits based on state residence.² In 2010, the California State Supreme Court ruled that the state law exempting certain nonresidents (including undocumented students) from paying nonresident tuition did not violate federal law. ³

Several states (i.e., Arizona, Georgia, and Indiana) have been more active in blocking financial support to undocumented students. These states have explicit laws prohibiting public colleges from offering in-state tuition absent documentation of a student’s legal presence (see, e.g., ARIZ. REV. STAT. ANN . § 15-1802 (2013).

Policies on Financial Aid

Even in-state tuition rates are too high for some students, yet financial aid programs are still largely closed off to them. Undocumented students are typically ineligible for most state and federal financial aid (Miksch, 2005; Olivas, 2004, 2009; Yates, 2004). A federal law, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (“PRWORA”), precludes undocumented immigrants from qualifying for federal financial aid or student loans.

A few states (e.g., Texas and California) offer state financial aid to undocumented students on an equal basis with other students. Nonetheless, a vast majority of states do not have such equal access. Even in Utah, where the law is financially favorable to undocumented students, a policy permits undocumented students to qualify for only one state aid program (Olivas, 2009, 2011).

Adding to the financial challenges, undocumented students are unable to work legally in the United States. These students face legal restrictions that make them ineligible for employment. These barriers often extend to other career development opportunities such as holding a paid internship, co-op learning programs, or employment-preparation field experiences (e.g., student-teaching). Their lack of documentation precludes their participation in academic programs that require or are significantly enhanced by these experiences. A new program, discussed next, does provide undocumented students the opportunity to apply for temporary legal status and work authorization.

Federal Deferred Action for Childhood Arrivals (DACA)

Over a year ago, the Obama Administration implemented a program that deferred (halted) deportations for certain young undocumented immigrants living in the United States. The program is known as the Deferred Action for Childhood Arrivals, or DACA. In order to be eligible an applicant must meet a number of criteria, including proving that they came to the United States prior to the age of 16 and that they have graduated from high school, have a GED, or are currently in school (USCIS, 2013a). A grant of deferred action is temporary, must be renewed every two years, and is not a path to United States citizenship. However, a person granted deferred action is considered to be lawfully residing in the United States and in most cases is also granted work authorization.

As of September of this year, 455,455 people have been granted DACA status and 9,578 have been denied (USCIS, 2013b). There are currently about 100,000 DACA applications pending before the United States Citizenship and Immigration Services. Mexico, South Korea, and the Philippines are among the top ten countries of origin and DACA applicants reside in all 50 states, with California having the largest number of applicants (USCIS, 2013b). Everyone granted DACA status is between the ages of 15 and 30 years old and those who are applying to colleges and universities should all have legal authorization to work. Depending on state laws and institutional policies, however, DACA students may not be eligible for in-state tuition or financial aid—potentially insurmountable barriers for low-income DACA students to overcome. In addition, there is no guarantee that DACA status will be renewed every two years, leaving graduates unsure whether they will be able to legally work in their chosen fields of study.

Action Steps

Action Item #1: Designate a point person for Undocumented and DACA students.

Students who are applying for admission to your campus may have questions about eligibility, residency, in-state tuition, and financial aid. Studies have explored obstacles undocumented students face during the admission process (Alexio, Chin, Fennelly, & Shurilla, 2012; Pérez Huber & Malagon, 2007), and recommend that institutions designate a point person in the admissions office, someone who is knowledgeable about state and institutional rules regarding in-state tuition and the level of support permissible in your state and university system. In addition, students who have been granted DACA status might wonder if they are eligible for certain financial aid programs. Having a point-person in financial aid will also support students’ persistence and success. The College Board (Rincón, 2012) has created a useful guide to resources available to immigrant students in California, Texas, New York and a number of other states that provides information for staff and students.

Action Item #2: Advocate for a Federal Policy of Inclusion

The Development, Relief, and Education for Alien Minors Act (DREAM Act) would provide a mechanism for long-term resident immigrant students to apply for legal residency, provide work authorization, and a path to permanent legal status in the United States. Although the DREAM Act has obtained bi-partisan support, it has never passed both houses of Congress. Many institutions have sent in support of the DREAM Act to members of Congress (NILC, 2013). Undocumented students often refer to themselves as “dreamers” and many have worked tirelessly to try and pass the DREAM Act.

Action Item #3: Create a Climate of Inclusion

Some commentators have noted that “getting in” is often the easy part. Undocumented students face a range of additional obstacles once they are admitted to postsecondary institutions (Gildersleeve, Rumann & Mondragón, 2010; Gonzales, 2009, 2011; Pérez Huber & Malagon, 2007; Rincón, 2010). Lack of access to financial aid, hostile campus climate, and administrators and staff unfamiliar with the rules governing undocumented students are three of the main obstacles undocumented students and DACA students face after they are admitted to postsecondary institutions. Pérez Huber and Malagon (2007) provide concrete ways to improve campus climate, including calling on institutions of higher education to overtly support the DREAM Act. They argue that a “neutral” stance sends the wrong message. In addition, memos and documents within higher education, on occasion, include words that shun groups or frame the issue as an illegal activity. Correct others and documents that use terms such as “illegal” or “illegal alien.” These words are tendentious and unrepresentative of more inclusive educational goals.

Action Item #4: Develop a Program Educating Others About Obstacles that Undocumented Students Encounter.

Take this article and pass it along to others. Highlight portions of this article and inform your colleagues of these societal barriers for undocumented students. Consider what it means for undocumented students when they speak about financial challenges, obstacles to gain work, and what support they may need from others in terms of creating a positive climate for these under-supported students.

References

Alexio, M., Chin, J., Fennelly, K., & Shurilla, A.  (2012).  Analysis of policies toward
applications from undocumented immigrants at Big Ten schools.  Law and Inequality, 30, 1-16.

Batalova, J., & McHugh, M.  (2010).  Dream vs. reality: An analysis of potential DREAM Act
beneficiaries.  Retrieved from http://www.migrationpolicy.org

Carnevale, A., & Strohl, J.  (2013).  Separate and unequal: How higher education reinforces the intergenerational reproduction of white racial privilege. Washington, D.C.: Georgetown Public Policy Institute, Center on Education and the Workforce.

Educators for Fair Consideration  (2012).  Fact sheet: An overview of college-bound undocumented students.

Flores, S.M. (2010).  State Dream Acts: The effect of in-state resident tuition policies and
undocumented Latino students.  Review of Higher Education, 33(2), 239-283.

Gildersleeve, R. E., Rumann, C., & Mondragón, R.  (2010).  Serving undocumented students: Current law and policy.  New Directions for Student Services .

Gonzales, R.G.  (2009).  Young lives on hold: The college dreams of undocumented
students.  Retrieved from www.collegeboard.com/advocacypubs

Gonzales, R.G.  (2011).  Learning to be illegal: Undocumented youth and shifting legal
contexts in the transition to adulthood.  American Sociological Review, 76, 602-619. Doi: 10.1177/00031222411411901

Miksch, K.  (2005).  Legal issues in developmental education: Immigrant students and
the DREAM Act.  Research & Teaching in Developmental Education, 22 (1), 59-65.

National Immigration Law Center (NILC).  Letters in support of the DREAM Act from higher
education institutions.  Retrieved from http://www.nilc.org/dreamed.html

Pérez Huber, L., & Malagon, M.C. (2007).  Silenced struggles: The experiences of Latina and Latino undocumented college students in California.  Nevada Law Journal, 7, 841-861.

Olivas, M.A.  (2004).  IIRIRA, the DREAM Act, and undocumented college
student residency.  Journal of College & University Law, 30, 435-456.

Olivas, M.  (2009).  The political economy of the DREAM Act and the legislative process:
A case study of comprehensive immigration reform.  Wayne State Law Review, 55, 1757-1810.

Olivas, M.A.  (2011).  The good, the bad, and the undocumented college students: 2011
state and federal developments.Retrieved from http://www.law.uh.edu/ihelg/

Rincón, A.  (2012).  Repository of resources for undocumented students. Washington, D.C.:
College Board. Retrieved from http://professionals.collegeboard.com/profdownload/Repository-Resources-…

Rincón, A.  (2010).  Undocumented immigrants and higher education: ¡Si se puede! El
Paso, TX: LFB Scholarly Publishing.

Russell, A.  (2011).  State policies regarding undocumented college students: A narrative of unresolved issues, ongoing debate and missed opportunities.  Washington, D.C.: American Association of State Colleges and Universities.

United States Citizenship and Immigration Services (USCIS) (2013a).  I am a young person who arrived in the United States as a child: How do I request consideration for Deferred Action for Childhood Arrivals?Retrieved from http://www.uscis.gov/USCIS/Resources/daca.pdf

United States Citizenship and Immigration Services (USCIS) (2013b).  Deferred Action for Childhood Arrivals data report. Retrieved from http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies /Immigration%20Forms%20Data/All%20Form%20Types/DACA/daca-13-9-13.pdf

Notes

  1. Cal. Educ. Code § 68130.5 (2013).
  2. The law states –
    Notwithstanding any other provision of law, 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.
    42 U.S.C § 1623 (2013).
  3. Martinez v. Regents of the Univ. of California, 241 P.3d 855 (Cal. 2010).

About the Authors

Karen Miksch is an Associate Professor of Education and Law at the University of Minnesota. Her research focuses on the law of higher education and the transition to college.

Please e-mail inquiries to Karen Miksch.

Jeffrey C. Sun is an associate professor of educational leadership/higher education and affiliate associate professor of law at the University of North Dakota. He teaches and writes about legal issues pertaining to higher education.

Please e-mail inquiries to Jeffrey C. Sun.

Disclaimer

The ideas expressed in this article are not necessarily those of the Developments editorial board or those of ACPA members or the ACPA Governing Board, Leadership, or International Office Staff.

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