Michael Olivas Discusses, What To Do About Undocumented Students?

Michael Olivas jokes that his forthcoming book Perchance to DREAM, A Legal and Political History of the DREAM Act was meant to introduce the new immigration policies, but he is concerned that it may actually serve as an eulogy as the debate over undocumented students continues to languish.

There are an estimated 50,000 undocumented college students in America—about the same size as Ohio State, points out Olivas. Although only a subset of a larger population of immigrants, undocumented students are a critical focal point in the debate over immigration law, and in this Campus Law Considered podcast, Olivas discusses how various colleges and states are handling in-state tuition and allowances for undocumented students.

Michael Olivas Discusses What to Do about Undocumented Students?

PB: Immigration law is obviously such a hot topic. And there seems to be a lot of tension between state and federal law. Do you have any opinion at what level the “solutions” should be enacted?

MO: Yes. Well, the suggestion that there's a tension is really very situation-specific. I would prefer to think of it not so much as these different applications, or implementations of various laws concerning immigration, to be a continuum. There are very specific federal responsibilities. You know, who gets to be a citizen? Who gets to come into the United States? Who can move from one category to the other? Those are, you know, we only have one immigration system, and it's entirely federal, and states have no real role in that.

On the other hand, we devolve or apportion a number of other immigration-related matters to the states, such as regulating the workplace. In some instances, we draw up a memoranda of understanding with police authorities to deal with noncitizens. In other instances, such as, say, driver's licenses, the states actually, you know, issue those within federal rules, so you'd have to think of the domain, in particular, that you're speaking of.

And in education, of course, because education is reserved to the states, those issues are, generally speaking, more at the state level, in, with respect to in-state tuition, with regard to state financial assistance, with regard to whether or not they pay for pre-K for undocumented children, etc. While the Supreme Court, of course, has ruled in Plyler v. Doe, that only, really, technically applies to public school enrollment. It doesn't apply to either pre-K, as we're finding out in some states, such as Missouri, which now preclude undocumented children, or even in some cases, citizen children whose parents are undocumented, from enrolling in pre-K programs.

And then, of course, some states regulate in-state tuition, and have ruled that even students with DACA, Deferred Action for Childhood Arrivals, which is an enhanced kind of status, that they don't get in-state tuition. So there's the whole range, and you'd have to really identify which of those various domains you mean before you could really ascertain this. And some states, by the way, are generous with some things and very, very tight with others.

Utah, for example, has been one of the early states to give in-state tuition, but at the same time, they have passed state laws concerning police presence, concerning driver's licenses, and so forth, that are much more restrictionist. And so sometimes within the same state, you have different domains that have different coalitions that led to different kinds of implementation issues.

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PB: Yeah, it would, immigration law would seem to be such a fascinating area of law to be watching and to be engaged in, I mean, because there is such a scatter shot and constantly evolving. I'd like to talk maybe some specifics. You just started to talk about Utah there. Within the arena of education, can you point out some, what you see as some state-level successes for immigration law? And then maybe counter that with a couple failures that you see.

MO: Well, it's interesting. Even there, states themselves change. California, for example, passed a statewide ballot measure in the 1990s that was very restrictionist. And you had a governor at the time, a Republican running for the presidency, who based his campaign, much like Mr. Trump, on just having dealt with immigration very specifically, and having supported the ballot initiative, much of which was struck down. Virtually all, in fact, was struck down by the courts after Latino advocate and other advocate groups who were pro-immigrant brought suit.

So but today, you can not only get in-state tuition, you can get loans from the state if you're undocumented. You can get financial aid from the state. You can get driver's licenses, of course, from the state, even if you're undocumented. And if you have DACA, you get even more particular privileges and benefits, enhanced status in the state. You could even become a lawyer if you're undocumented. They passed a specific statute. And so you can do that.

They're probably in the forefront, and, of course, probably between a third and 40% of all undocumented students or DACA students are in California, so as California goes, so goes the overall metrics. But even other states, such as Texas, which was the first state to have in-state tuition, struck down some restrictionist measures last legislative term that would've done away with the equivalent of in-state tuition. You now can get in-state, not only in-state tuition, but state financial assistance. And you can get driver's licenses if you have DACA, and so forth.

So a number of the states like that, Florida just passed a statute not only giving in-state tuition to the undocumented, but allowing DACA students to become lawyers. New York has a regulation now that, on a case-by-case basis, DACA law graduates who are, who pass the bar, and who navigate the moral character and fitness, can become lawyers in New York.

So there are, you know, the states that you would historically think of as pro-immigrant, or pro, even pro-migrant, or pro-refugee are stepping up. I would say the major state has not done that has been the state of Arizona, but even there, virtually all of their restrictionist measures have been struck down by the U.S. Supreme Court. Again, these groups bringing suits, and so they now have to give driver's licenses, are giving in-state tuition for DACA holders, but they still don't do anything for the undocumented. That's the only border state that really hasn't done a good job of that.

PB: And, Michael, in a recent article you wrote, you've written, you talk about there have been stutters and half steps on the topic of residency statues. It sounds like, though, you're, when you're tracing sort of the overall political and legislative path, that you are saying that it's going towards more allowances, at least that seems to be the direction when you're mentioning California, Texas, Florida.

MO: An example of a half step or a loss of step, for example, would be Wisconsin. When Governor Walker decided he was going to run for the presidency, he reversed his previous support for more pro-immigrant activities, and he led the state to rescind the in-state tuition provision, because after all, they'd been overrun by a total of 200 users in the first 2 years. You know, that's a political science intro class at the University of Wisconsin. In other words, it wasn't like it was a magnet to draw them there, plus they had to, you know, have graduated from high, state high school, and been there for three years, and so forth.

So losing Wisconsin, which historically has been a, you know, a very progressive sate, was sad. On the other hand, Maryland actually passed a statute, and then it was challenged, and so it went to a ballot measure, and the state voters passed it. They're the first ones that actually had voted on one that had passed. So there's steps forward, steps back. But over 20 states, and, as I said, the patchwork quilt needs to be filled in with some other states.

North Carolina, for example, really needs this, and as I said, Wisconsin should restore it, and I certainly think Arizona needs it. And then we would have probably 85 percent to 90 percent of all the undocumented students covered. So I don't really expect Maine to have it because there just aren't that many students, but I do hope someday that Arizona will have it. Subscribe to Campus Law Considered

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