In-State Tuition for Illegal Aliens
Illegal aliens are foreign nationals who either entered our country without U.S. government authorization, or overstayed a period of authorized admission. Since they reside in our nation unlawfully, illegal immigrants are not eligible to receive certain federal benefits, including assistance in pursuing education beyond high school. Yet, according to the National Conference of State Legislatures (NCSL), 16 states – including Texas, California, Illinois, Florida, and Maryland – have laws allowing them to pay in-state tuition rates. In the map below, hover over your state to learn more about its in-state tuition laws:
Other states, such as Oklahoma and Rhode Island, grant in-state tuition rates through Board of Regents decisions. Still others do not have automatic in-state tuition laws but allow individual universities to give in-state rates to illegal alien students (e.g. Michigan, Nevada, Kentucky) or Deferred Action for Childhood Arrivals (DACA) beneficiaries (e.g. Virginia, Ohio, Massachusetts, Delaware, Hawaii, Idaho, and Maine).
However, several states either ban in-state tuition (Arizona, Georgia, and Indiana) or prohibit illegal aliens from enrolling in most public state colleges (Alabama and South Carolina).
What Federal Law Says About In-State Tuition
Granting illegal aliens in-state tuition rates is a violation of federal law. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 (8 U.S. Code § 1623) is clear: “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.”
In other words, states/public colleges are prohibited from offering in-state tuition rates to illegal immigrants if they do not extend the same discount to out-of-state American citizens. However, the prohibition does not extend beyond public universities. In fact, every private university is able to create its own policy regarding admission and eligibility for internal financial assistance for illegal alien students.
Universities that grant illegal aliens in-state tuition (and other benefits) usually claim – quite disingenuously – that enforcing immigration law is outside of their purview. This does not prevent universities from adhering to other federal laws (public universities are obligated to obey all federal laws). Most commonly, many universities make in-state tuition conditional upon residing in a particular state and/or graduating from a high school located in that state, willingly turning a blind eye to the fact that some of those students may be illegal aliens.
Activist judges have also contributed to the problem. In 2007, the 10th Circuit U.S. Court of Appeals dismissed a lawsuit by FAIR and 24 out-of-state students (Day v. Sebelius) challenging the Kansas law permitting in-state-tuition to be given to illegal aliens. The Court maintained that the plaintiffs lacked necessary standing to challenge the law. In 2010, California’s Supreme Court upheld the “Golden State’s” own in-state tuition law. Typically, it is difficult for individuals to demonstrate standing, so the better plaintiff to bring a suit challenging in-state tuition laws would be the Departments of Justice and Education. Unfortunately, the U.S. government has so far failed to act.
In-State College Costs for Illegal Aliens
In-State Tuition for Illegal Aliens is Unfair to American Citizen and Legal Immigrant Students
This issue is important to U.S. citizens, legal immigrants and permanent residents because the difference between in-state and out-of-state tuition rates for most public institutions is substantial. During the 2018 – 2019 academic year, the average in-state tuition rate in the U.S. was $10,230, while the average out-of-state tuition was $26,290. That is a difference of just over $16,000, which is cost-prohibitive to many applicants.
Furthermore, in-state tuition is a legally unjustified extension of the benefit of primary and secondary education funded by U.S. taxpayers that illegal alien students receive under current law.
In 1982, the U.S. Supreme Court ruled in Plyler v. Doe that states could not deny illegal aliens access to taxpayer-funded K-12 education on the basis that not providing a proper education would likely contribute to “the creation and perpetuation of a subclass within our boundaries.”
Today, in-state tuition proponents continue to seek to extend Plyler v. Doe to higher education. Many activists and supporters assert that illegal aliens require financial assistance due to the challenges of coming from low-income families and being forced to pay tuition out-of-pocket (as a result to being ineligible for federal student loans). They also minimize the negative impact on American students (e.g see the website of the National Immigration Law Center) and claim that such policies will benefit the U.S. economy (e.g. Núñez & Holthaus, 2017). All of this ignores the fact that many Americans from low-to-modest income backgrounds also have dreams of attending college – and they should take precedence over foreign nationals who are in our country unlawfully. In addition, any kind of assistance provided by a university to an illegal alien cannot, since it is a finite resource, be simultaneously granted to an American citizen or legal immigrant student.