More States Consider In-State Tuition For Illegal Aliens

By Jeff Johnson | July 7, 2008 | 8:20 PM EDT

Capitol Hill ( - Several states are considering following the lead of California and Texas, which charge in-state tuition for illegal aliens attending taxpayer supported colleges and universities.

According to published reports, Minnesota, North Carolina, Utah, and Washington are among the states considering the move, following on the 1982 Supreme Court Plyler v. Texas decision that required states to provide taxpayer funded elementary and secondary education to illegal aliens through grade 12.

But immigration reform groups argue the in-state college tuition plans are a direct violation of federal law.

Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 states that:

"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."

Apparently, members of Congress intended the law to mean exactly what the immigration reform groups claim. House conference Report 104-828, referring to Section 505 stated, "this section provides that illegal aliens are not eligible for in-state tuition rates at public institutions of higher education."

But Texas and California circumvent the law by basing their in-state tuition policies for illegal aliens not on whether the alien is a "resident" of the state, but rather on whether or not the alien graduated from an in-state high school after three years of continuous attendance.

The Federation for American Immigration Reform (FAIR) says the issue can be reduced to a simple question of fairness.

"The tuition debate is really a question of a finite commodity whether you're talking about the limited number of seats available or the limited number of tax dollars available to subsidize tuition," according to David Ray, spokesman for FAIR.

"If you're saying that these funds and seats should go to illegal alien children, then you're saying, 'No,' to American children, children whose parents have paid taxes in this country for decades and who can legally hold a job in this country once they get a degree," he concluded.

FAIR believes that states offering in-state tuition to illegal aliens will entice greater numbers of illegal alien families to move to those states.

Proponents of the idea, such as State Rep. Rick Noriega (D) who sponsored the Texas bill that allows illegal aliens to pay in-state tuition rates, disagree.

"I am just happy that here in Texas we got it through when we did," he told the Chronicle of Higher Education in November 2001.

"For ... fear-mongers, these are perfect times to execute your agendas," Noriega added, referring to the aftermath of the Sept. 11 terrorist attacks.

But conservative Internet columnist Gregory Hand, who lives in California and opposes that state's illegal immigrant education subsidy, doesn't believe he's a fear-monger, just a pragmatist.

"Socialist supporters of subsidized higher education for law breaking immigrants blame the illegal-immigrant parents (and who can punish a child for the sins of the parents?), point out that these children have graduated from American public schools (again at taxpayer expense) and therefore somehow bizarrely deserve access to higher education subsidized by someone else's hard earned money," Hand writes in his online column at

In August 2001, Wisconsin Gov. Scott McCallum (R) vetoed a provision lawmakers inserted into the state's budget that would have provided an identical in-state tuition discount to illegal aliens as the ones in Texas and California.

"Until Congress changes the eligibility status of undocumented persons for this benefit," McCallum said announcing the veto, "the focus of taxpayer subsidized postsecondary education needs to remain on students who are legal residents of the state."

The Immigration and Naturalization Service (INS) believes the debate is irrelevant.

INS spokeswoman, Elaine Komis, told the Chronicle of Higher Education in November 2001 that the agency has "no reason" to issue regulations on whether someone who is in the country illegally could qualify for tuition benefits. The agency, she said, believes that person should be removed from the country.

But that message has apparently not been disseminated throughout the agency.

"It's not the role of the INS to tell the states how they should administer their educational system," another INS representative told

"Given our very limited resources, with only 2,000 agents, we just don't have the capability of going out to universities and checking papers," added the INS representative, who did not want to be identified.

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