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The Anglo-Saxon Model and Higher Education in the United States

State Budget Crises and Access to College for Undocumented Students in the United States

La crise des budgets d’Etat et l’accès à l’université pour les étudiants irréguliers aux Etats-Unis
Fanny Lauby

Résumés

La crise financière a intensifié les inquiétudes concernant la disponibilité des aides financières pour les étudiants du supérieur aux Etats-Unis. Même dans des contextes économiques plus propices, l’aide financière et l’accès aux frais d’inscriptions réservés aux résidents de l’Etat déterminent souvent si un étudiant pourra ou non s’inscrire à l’université. Cela est tout particulièrement le cas pour les étudiants issus des minorités et des familles aux revenus modestes, parmi lesquelles se trouvent des étudiants en situation irrégulière. L’article étudie la relation entre la crise financière de 2007-2008 et les lois des Etats concernant l’accès des étudiants irréguliers aux frais d’inscriptions préférentiels et aux aides financières dans le supérieur. Tout comme les autres immigrés en situation irrégulière qui vivent actuellement aux Etats-Unis, ces jeunes font aujourd’hui face à de fortes attaques de la part des législatures des Etats qui prétendent réduire les dépenses du gouvernement. Malgré une décision récente de la Cour Suprême de Californie favorable à l’accès aux frais d’inscription préférentiels, plusieurs législatures ont adopté des lois qui excluent ces étudiants. La crise a durci la relation qui existe entre les gouvernements des Etats et les institutions publiques d’enseignement supérieur. L’article montre que la crise économique a accéléré la modification du rôle des universités publiques, et tout particulièrement leur instrumentalisation par les législatures des Etats dans leur opposition à l’immigration irrégulière.

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1The global financial crisis has intensified concerns over the availability of financial aid for all students in the public higher education system of the United States. Even in better economic times, financial aid and access to in-state tuition often determine whether a student is going to be able to attend college. In the United States, funding for higher education is primarily the responsibility of the individual states, and while the federal government handles most of the aid going to students, it has progressively changed its format from grants to guaranteed loans. Each state is sovereign in terms of financing their higher education system and federal interventions are rare – often related to civil rights violations. This division in financial and legislative responsibilities is all the more relevant for minority and low-income students, among whom are some undocumented immigrants. While education policy falls primarily under the responsibility of the states, only the U.S. Congress can make laws regarding immigration and naturalization. Undocumented youths are thus caught between the two levels of government, each of which having the ability to legislate on major aspects of their lives – their status and their education.

2This paper examines the relationship between the 2007-2008 financial crisis and state laws related to undocumented students’ access to in-state tuition and state financial aid. Using data from state legislatures and the U.S. Congress, it shows that along with the rest of the unauthorized population living in the United States, these youths have had to face a serious backlash from states claiming to cut costs for their own governments. They have also suffered from the influence of anti-immigrant advocates in Congress while this institution has been considering comprehensive immigration reform, unsuccessfully, over the last few years. The paper shows that the crisis has toughened the relationship existing between state government and public institutions of higher education. By focusing on competition and costs, universities have been turned away from their egalitarian mission to be exploited into further marginalizing undocumented immigrants.

Financial aid : the key to college access

Federal aid

  • 1 John R. Thelin, “Higher Education and the Public Trough : A Historical Perspective.” in (...)
  • 2 Idem.

3The federal government has had a longer presence in higher education than the states. Federal financial aid is much more important in volume than state financial aid, and it reaches a greater number of students. In 1947, after a demand by President Truman, a Higher Education Commission published a report entitled Higher Education for American Democracy. Many of its ideas were used as models for the federal aid which was developed in the 1960s. According to John Thelin,1 the report denounced occurrences of inequality and unfairness due to racial discrimination in education. Most federal aid – including income-based grants – was developed between 1945 and 1970, which many call the “Golden Age” of federal financial aid, especially because of the prevalence of grants over loans. However until the end of the period, federal aid was very specific, and was mostly attributed to advanced research and the development of federal agencies. In 1972, many grants were created to reach out to a greater number of students. Among them were the Basic Educational Opportunity Grant (BEOG), quickly named the Pell Grant, the Supplemental Educational Opportunity Grant (SEOG), and the State Student Incentive Grant (SSIG). The system which emerged relied on two principles. First, a grant was an inalienable right for any student whose application matched recognized criteria. Second, federal aid was “portable,” meaning that the student could use it in the institution of higher education of his or her choice.2 This element was very important, since the choice did not rest with the federal government, but with the individual student, who was probably the son or daughter of a happy voter and taxpayer.

  • 3 James C. Hean and Janet M. Holdsworth, “Federal Student Aid : The Shift from Grants to L (...)
  • 4 Phil Izzo, “Congratulations to Class of 2014, Most Indebted Ever”, The Wall Street Journ (...)
  • 5 Sandy Baum and Marie O’Malley, “College on Credit : How Borrowers Perceive Their Educati (...)
  • 6 Jennie H. Woo, Degrees of Debt : Student Borrowing and Loan Repayment of Bachelor’s Degr (...)

4However, starting in the 1980s, many voices started arguing against this system, because it favored students from low-income families rather than those from middle-class families. From that time on the growth of federal loans, which had already started in the 1970s, was inevitable. Hearn and Holdsworth note that in the 1990s the aid from loans increased by 125 percent, whereas the aid from grants only increased by 55 percent.3 This phenomenon has several explanations. On the one hand, the global number of students had increased since the 1970s. In spite of that, Congress had refused to grant more funds to federal grants or other aid programs. From then on, the greater demand for student grants had turned into a greater demand for student loans. In 2014 for example, about 70% of students graduating with a Bachelor’s degree had taken on student loans.4 The government has encouraged this trend by making loans more accessible, since for some people loans represent not only a social good – by allowing low-income youth to gain access to higher education – but also an economic good by stimulating the credit market. Data indicates that while in 1987 about 3.6 million college students borrowed an average of 2,500 dollars, by 2001 that figure rose to 4.7 million students borrowing an average of 4,100 dollars.5 Between 1993 and 2008, the average amount borrowed by each cohort also increased from 15,000 to 24,700 dollars.6

  • 7 Terry W. Hartle, “How People Pay for College : A Dramatic Shift.” Chronicle of (...)

5Thanks to this new trend the federal government has been able to limit its role to guaranteeing the credits granted and subsidizing the interests paid to banking institutions. The main conclusion that one can make from this is the shift in the economic responsibility of parents towards students in regards to college. By letting student loans grow, the state has helped the development of a system in which parents no longer pay for the education of their children, but where children themselves take on debt to pay for their own education. According to Hartle, “the United States, in effect, has decided to shift the burden of financing higher education to students themselves. The social compact that assumed that the adult generation would pay for the college education of the next generation has been shattered”.7 The transition from grants to loans is not therefore an easy transition and seems to compromise the egalitarian mission of public universities. In the case of undocumented students, as non-citizens and non-residents, they do not qualify for loans guaranteed by the federal government, which seriously limits their capacity to attend college.

  • 8 Anthony P. Carnevale and Richard Fry, Economics, Demography, and the Future of (...)
  • 9 Robert Haveman and Timothy Smeeding, “The Role of Higher Education in Social Mobility.” (...)

6The transition from grants to loans presents several problems. According to many scholars it adds an additional barrier to low-income students. In 2000, Carnevale and Fry already noted that federal loans favored students from the middle class.8 According to them, the adoption of the Middle Income Student Assistance Act of 1978 marked the point where federal aid shifted toward middle-class students. This law widened the eligibility criteria of the BEOG by eliminating income as a criterion for federal loans. In a parallel development, state and institutional aid was increasingly granted based on academic criteria, which also favored the middle class. In 2006, the same trend was observed by Haveman and Smeeding. According to them, in 2001 student loans made up almost 40 billion dollars, “more than five times the resources of the Pell grant program that was meant to be the primary sources of assistance to low-income students”.9 It would therefore seem that resources given to student loans are much larger than those granted directly to students through income-based aid.

  • 10 Ibid.
  • 11 Maria E. Zarate and Harry Pachon, Perceptions of College Financial Aid Among California (...)

7The other reason which explains the stagnation of academic-based grants compared to loans is the growth of merit-based grants. For Haveman and Smeeding, this new trend once more favors middle-class students. First, low-income students or minority students are often less informed about the real cost of higher education, and tend to overestimate the price of a college degree.10 This lack of knowledge increases if students or their parents are immigrants. A study conducted by the Tomas Rivera Policy Institute in 2006 showed the link between student status and lack of knowledge of available aid. According to Zarate and Pachon,11 only a small number of polled students – less than 17 percent –could rightly estimate the price of an education in a public university. For them, students often miscalculate the amount they would need in financial aid because they overestimate the price of college tuition. This can be particularly discouraging for students who come from low-income or immigrant families.

  • 12 James C. Hean and Janet M. Holdsworth, “Federal Student Aid : The Shift from G (...)
  • 13 The Scholastic Aptitude Test measures academic readiness for college by testing high sch (...)
  • 14 Michael Kramer, “Stresses in the Student Financial Aid System” in Hauptman, Arthur (...)
  • 15 C. Bruce Johnstone, “The economics and politics of cost sharing in higher education : co (...)

8The other problem created by merit-based grants lies in the conditions of attribution. The underlying philosophy of these grants is that state money should go to deserving students, and not simply to those who cannot afford to go to university. Based on Hearn and Holdsworth, in the United States income-based aid represented 80% of all aid at the beginning of the 1990s, but only 60% at the beginning of the 2000s.12 Merit-based aid is given according to academic criteria, that is to say based on how well the student is doing before going to college. Success is most of the time measured based on national standards such as the Scholastic Aptitude Test (SAT)13 in high school. However, these standards tend to favor middle-class or wealthy students rather than low-income students. Indeed, low-income students tend to attend low performing high-schools which often lack the material means to prepare their students for national standardized tests. Because of this, academic grants tend to favor those students who can afford to attend high schools which will offer a better preparation for college. Kramer, as early as the beginning of the 1990s, noted the discrepancy between the university community’s commitment to an egalitarian mission on the one hand, and the greater reliance on student loans on the other : “grant programs reduce inequality of resources, but loan programs perpetuate it when low-income graduates owe more than their affluent contemporaries”.14 Just as it has been done in other countries such as the United Kingdom and Australia,15 the federal government has progressively disengaged itself from direct financial aid, by keeping constant the resources made available for grants in spite of the increase in the number of students, and by limiting its own role to guaranteeing student loans. Low-income students, including undocumented students, are therefore turning increasingly to the states to help finance their higher education.

Variations in state financial aid

  • 16 Deborah Stone, Policy Paradox : the Art of Political Decision Making, New York: W. W. (...)
  • 17 The Urban Institute, The Dispersal of Immigrants in the 1990s. Immigration Studies Program (...)
  • 18 U.S. Supreme Court, San Antonio Independent School District v. Rodriguez 411 U.S. (...)

9State financial aid is controlled by state legislatures, which creates great diversity among states. Based on the policy literature, we know that relying on state and local administrations rather than the national government to manage a program tends to solidify the differences between communities.16 A 2002 report by the Urban Institute showed that in the absence of federal immigration reform, the states tend to individually take on a problem rather than wait for a regional or national solution : “Where the program costs are not shared between state and federal governments there is extraordinarily wide variation in the states’ willingness to provide safety net services to immigrants”.17 If the federal government does not adopt legislation mandating states to offer services to immigrants other than health and incarceration, each state is free to adopt its own laws. This is particularly the case in higher education since each state is sovereign in this particular domain and the federal government cannot intervene in a state’s budget. This was upheld in the Supreme Court decision San Antonio v. Rodriguez of 1973 : no one can interfere in the state’s power to tax their residents for the goal of supporting local interests such as public universities.18 The federal government cannot therefore intervene in state financial aid for higher education, since they are free to determine the amounts and the beneficiaries of this aid. In the case of undocumented students, the federal government could only intervene in regards to their immigration status –for example by granting them a temporary resident status so they could be considered residents for financial aid considerations.

  • 19 The Urban Institute, The Dispersal of Immigrants in the 1990s, 2.

10Immigrants had developed new settlement schemes in the early 2000s, which means that new states have become immigration states. However, these are states which have less experience dealing with immigrants and are therefore less likely to accommodate this population’s needs. A 2002 Urban Institute report details the characteristics of this new immigration, and of new immigration states. These trends follow contradictory routes. On the one hand, more recent immigrants generally have lower income, speak English less well, and are less qualified for the American labor market since they are less likely to have graduated from high school and to have received a college degree. The report concludes that these immigrants would therefore require more services on the part of the state such as interpreters, English services, and medical insurance. However, “these new growth states have less experience settling immigrants and many have a less developed service infrastructure. [...] Many new growth states restrict legal immigrants’ access to the social safety net”.19 Financial aid in higher education is also considered as a service which is not essential, unlike healthcare and law enforcement, and many states therefore limit this aid to legal residents and citizens only. Since the higher education budget is one that is particularly sensitive to variations in revenues, immigrants’ access to higher education is rarely considered a priority for the state’s lawmakers.

  • 20 This law exempted some undocumented students from non-resident tuition fees if they had at (...)
  • 21 Government Accountability Office, Illegal Alien Schoolchildren. Issues in Estimati (...)
  • 22 This proposition limited access to various state services and aid programs (such as in-sta (...)

11This situation is sometimes made worse by the variation in revenues and public spending on education between states. It is interesting to compare two neighboring states, such as California and Arizona. Some states such as California have a tradition of guaranteeing access to university to their high school graduates. In the 1950s and 1960s, the state made it clear that it would not make its residents pay for tuition if they registered at a public university. Each student would obtain a grant to pay for college, and the increasing number of students allowed public universities to perform better. Today, California has kept its approach to higher education by opening the doors of public universities to undocumented students thanks to the AB 540 legislation of 2001.20 In secondary education, a U.S. Government Accountability Office (GAO) report of 2004 notes that for the 1999-2000 school year the average spending of California for each student was about 6.000 dollars. However, in the neighboring state of Arizona, the average spending per student for the same year was only 5.000 dollars per year.21 In higher education, the state has clearly limited financial aid to citizens and legal residents only by having voters approve Proposition 300 in 2006.22 The school-age population of Arizona – children under the age of 18 – has increased largely in the 1990s, partly due to increases in immigration. However, its growth rate remains close to that of California, at about 30 percent. The decision to financial limit access to higher education for some students is therefore more related to political choices made by the state than by its economic or demographic situation.

  • 23 Robert Haveman and Timothy Smeeding, “The Role of Higher Education in Social Mobility,” op (...)
  • 24 Anthony P. Carnevale and Richard Fry, Economics, Demography, and the Future of Higher Educ (...)

12State financial aid represents about a third of the aid available to college students. It essentially relies on the differentiation in tuition fees between residents and non-residents, as well as on state grants. Once again, there has been a shift from direct income-based grant toward merit-based grants, which fits in with the American model of capitalism and its reliance on competition. According to Haveman and Smeeding, it would seem that “the share targeted on low-income students has been falling as needs-based assistance has been increasingly replaced by merit-based aid”.23 This has led to a shift of available funds towards middle-class and wealthy students since these students tend to perform better on secondary-level national standards. Undocumented students are therefore also the victims of both the erosion of state aid, and of the shift toward merit-based aid which favors wealthier students. In addition there has also been a decrease in the real impact of income-based aid. For Carnevale and Fry (2000), changes in income-based aid have failed to match the increase in tuition fees in universities. As a consequence, “the real value of need-based student aid has fallen far behind the increase in college costs and even farther behind the amounts necessary to close the gap between low-income families’ needs and college costs”.24 State aid therefore follows the same trend as federal aid, by shifting toward merit-based aid, which hinders the egalitarian mission of public universities. Since undocumented students belong to a category of students who are primarily low-income and at-risk of dropping out of high school, the disengagement of the federal government and of the states in the domain of financial aid limits their ability to gain access to college or to remain in college after they have enrolled.

Financial crisis and backlash

Backlash in state legislatures and in the U.S. Congress

  • 25 Arizona State Legislature, Senate Bill 1070 : Support our Law Enforcement and Safe Neigh (...)
  • 26 Fanny Lauby, « Les étudiants sans papiers aux Etats-Unis : une menace pour les universit (...)

13The economic crisis has led to a decrease in revenues for states and to a tightening of the budget for the federal government. States have therefore looked for ways to limit their own spending, and have increasingly turned to a rhetoric blaming undocumented immigrants for budget-related issues. During the spring of 2010, Arizona made the news by adopting a new law related to undocumented immigration, SB 1070. Even if this law is not directly related to education, it is a significant example of the treatment of undocumented students in time of fiscal strain, as was the case in the early and mid-1990s in the United States. The new law stated that “a law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States”.25 The new law was the cause of much debate, especially because of the possibilities for discrimination due to the vagueness of the text, which fails to define what constitute the “probable cause” which would lead to an arrest. The news that the state had adopted such legislation renewed the debate in the United States regarding the role of states and of the federal government on immigration. Indeed, states such as Arizona justify their laws by saying that the federal government has failed to implement immigration law, to adopt a comprehensive immigration reform, and to effectively curb unauthorized immigration. The official speeches which accompanied the adoption of these laws presented undocumented immigrants as criminals threatening the sovereignty of the American territory, and as a considerable burden for the finances of the state.26 This type of narrative takes a predominant role in the media and curtails the potential support for laws that would favor the integration of undocumented immigrants through higher education.

14The economic context is related to the rejection of undocumented immigrants by American society. The costs – real or imagined – of unauthorized immigration have been a source of contention for years between the states and the federal government. This conflict materializes itself in the context of higher education, where the competition for seats in college and for financial aid is already fierce, and where the increase in the number of potential candidates who are undocumented creates tensions. This type of reaction toward undocumented immigrants has already been seen in the United States and in the policy arena related to education. In the early 1990s, as the country was also experiencing a budget crisis, several states including California enacted legislation which prevented unauthorized immigrants from accessing state benefits in several domains, including public primary and secondary education (California’s Proposition 187 in 1994 being the most notorious example). Most of the provisions of these laws were struck down by the courts as unconstitutional, but they constitute a historical example of backlash against undocumented immigrants.

  • 27 See H.R. 1868 Birthright Citizenship Act of 2009 and S. 723 Birthright Citizenship Act o (...)
  • 28 The Reconstruction Amendments, adopted after the Civil War between 1865 and 1870, were e (...)

15In the case of the current crisis, the backlash against undocumented immigrants has gone further, and several representatives in Congress have even asked for a revision of the 14th amendment in order to prevent children of undocumented immigrants born in the United States from being granted American citizenship. The 14th Amendment reads : “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”. In 2009, a Representative from Georgia introduced a bill which would have amended federal law to grant U.S. citizenship only to those born in the U.S. whose parents are also U.S. citizens or legal permanent residents. In early 2011, a group of House Representatives from states such as Pennsylvania and South Carolina, where undocumented immigration has grown greatly over the past ten years, announced that they would promote state legislations that would eventually force the Supreme Court to review the 14th Amendment. Also in 2011, a Senator from Louisiana also introduced a proposal to amend the Constitution so that children born to undocumented parents could not qualify for American citizenship.27 The backlash on undocumented immigrants in times of fiscal strain has taken a new turn, and has led to the promotion of legislation which would in effect create “state citizenships” and a two-tier birth system in the United States, eventually throwing out the lessons and the heritage of the Civil War and the Reconstruction Era.28

  • 29 Julia Preston, “Senators Offer a Bipartisan Blueprint for Immigration”, The New York (...)

16Congress has also attempted since the early 2000s to adopt a comprehensive immigration reform, and those efforts had culminated in 2013 with the introduction of the Comprehensive Immigration Reform bill by a bipartisan group of U.S. Senators.29 However since the beginning of the financial crisis the money flowing into Congress from anti-immigration groups has also increased tremendously. Table 1 shows the amount of money spent by the Federation for American Immigration Reform (FAIR), one of the many anti-immigration lobbies registered in Congress, on lobbying efforts in the House of Representatives and in the U.S. Senate between 2007 and 2014.

Table 1. Money spent by the Federation for American Immigration Reform in lobbying in the U.S. Congress, 2007-2014.

Filing


Year

Amount spent in the House of Representatives (in dollars)

Amount spent in the U.S. Senate (in dollars)

2007

120,000

200,000

2008

190,000

190,000

2009

350,000

460,000

2010

160,000

160,000

2011

80,000

80,000

2012

100,000

120,000

2013

180,000

160,000

2014

200,000

200,000

Source : Table created by the author based on data provided by lobbying reports filed by FAIR by January 2015 with the Office of the Clerk of the House of Representatives and the Secretary of the Senate in accordance with the Lobbying Disclosure Act of 1995.30

  • 31 Ashley Parker and Jonathan Martin, “Senate, 68 to 32, Passes Overhaul for Immi (...)

17The table shows that since 2007 lobbying groups that oppose comprehensive immigration reform – including a path to citizenship or greater access to college for undocumented students – have spent an increasing amount of money in promoting their views in the U.S. Congress. The spikes in spending in 2009 and 2013-2014 correspond to the introduction of large-scale immigration reform in Congress : the Development, Relief, and Education for Alien Minors Act of 2009, and Comprehensive Immigration Reform in 2013. The DREAM Act was ultimately defeated in the Senate in December 2010, and while the latest attempt at comprehensive immigration reform was approved by the Senate in June 2013,31 the House of Representatives has yet to vote on it.

18The mobilization of these groups prevents the realization of positive legislative outcomes in Congress, and also discourages support for undocumented immigrants. The momentum gained in the spring and summer of 2013 was lost due to the delay caused by the October 2013 government shutdown. Since then, the victory of the Republicans in the 2014 midterm elections has also led many to question the ability of the U.S. Congress to ever adopt the reform.

Immigrant-friendly states also cut costs

19Even states which usually tend to adopt legislation that is more accommodating to immigrants have started to cut costs and to limit the benefits they usually extend to non-citizens. Since 2005, the number of laws enacted at the state level in relation to immigration has skyrocketed. The states of Arizona and New York, which provide a comparison of states which tend to be more restrictive or more accommodating to immigrants, have both participated in this new trend. Table 2 offers a summary of this evolution, with a breakdown of the type of laws (positive, neutral, restrictive) adopted in each state. In the table, “positive” laws are those statutes which enable non-citizens to participate more easily in economic and educational activities. On the other hand, restrictive laws are those which restrict benefits or participation to certain categories of persons only, or which limit financing to agencies and organizations based on the immigration status of their clients.

Table 2. Typology of state laws related to immigration for Arizona and New York, 2005-2014

Number of laws/resolution enacted in…

State

Arizona

New York

All states

2005

  • Positive

  • Neutral

  • Restrictive

9


-


2


7

0

45

2006

  • Positive

  • Neutral

  • Restrictive

7


-


2


5

3


2


1


-

90

2007

  • Positive

  • Neutral

  • Restrictive

16


2


6


8

6


4


2


-

240

2008

  • Positive

  • Neutral

  • Restrictive

6


1


2


3

8


6


1


1

206

2009

  • Positive

  • Neutral

  • Restrictive

13


-


8


5

2


1


-


1

353

2010

  • Positive

  • Neutral

  • Restrictive

13


3


4


6

5


2


1


2

346

2011

  • Positive

  • Neutral

  • Restrictive

15


-


5


10

2


2


-


-

321

2012

  • Positive

  • Neutral

  • Restrictive

10


2


6


2

5


2


1


2

262

2013

  • Positive

  • Neutral

  • Restrictive

2


-


1


1

4


2


-


2

436

2014

  • Positive

  • Neutral

  • Restrictive

13


1


7


5

5


2


2


1

288

Source : data compiled by the author based on National Conference of State Legislatures data for state laws related to immigration, 2005-2014.

20Most of the laws enacted in Arizona over the 2005-2014 period dealt with employment, public benefits, and law enforcement issues, while the New York legislatures enacted laws generally related to health, services to migrant workers, and employment in certain professions such as physicians and veterinarians. For example, New York enacted two laws in 2007 which allowed permanent residents and aliens in the process of applying for citizenship (which can take years) to acquire permanent certification as a teacher ; and another one granting a one-time three year waiver of citizenship or permanent resident status for those in the process of applying for citizenship to receive a veterinary license. The fact that most laws enacted in New York over this period were more positive than restrictive does not mean that nothing has been attempted in the legislature to curb immigrants’ rights, especially in terms of education. In 2006, four years after New York opened access to in-state tuition for undocumented students, two bills were introduced that would have denied social and health services to undocumented immigrants and required service agencies to report “persons reasonably suspected of being in the U.S. illegally”. Another bill was introduced barring undocumented students from attending postsecondary institutions in the state. However, none of these bills were enacted.

21We can therefore see a trend in the type of legislation enacted in each state. Arizona is much more productive than New York in terms of laws and resolutions related to immigrants and immigration, which seems to indicate that the impact of immigrants on the state may represent a greater concern for the administration of that state. On the other end, the laws and resolutions adopted by the state of New York tended to be more favorable to non-citizens at the beginning of the period under study, with the state providing access to health services and naturalization processes for example, but have more recently turned more on law enforcement and restriction of state aid to citizens and legal permanent residents only. For example in 2010, New York did not enact immigration-related laws concerning health or education, but did adopt a law related to budget so that minority group members would be defined in the law as U.S. citizens or permanent resident aliens. Another bill complementing a state program encouraging women business owners specified that those businesses receiving support had to be owned by someone who is a U.S. citizen or a permanent resident alien. Finally another 2010 law related to the budget required that persons seeking real estate licenses be legally allowed to work in the United States. New York state legislation related to immigration has therefore joined the national trend in specifying which benefits immigrants are entitled to, and which ones are limited to citizens and legal permanent residents. Thus even in a state which has a history of accommodating immigrants, including undocumented immigrants, the legislature has tightened available opportunities for certain categories of immigrants. The new trend in state legislating toward immigrants has fully focused on the situation of undocumented students and on their relationship to state legislatures. Indeed, increased competition in higher education for seats and financial aid has directed the backlash toward this particularly marginalized group.

Targeting undocumented students

  • 32 General Assembly of the State of Georgia, 2008, Senate Bill 169, Atlanta, Georgia.
  • 33 General Assembly of the State of Georgia, 2008, Senate Bill 492. Determination of (...)
  • 34 Legislature of the State of Utah, 2008, House Bill 86 : Funding of Inmate Postseco (...)
  • 35 National Conference of State Legislatures, 2012, 2011 Immigration Related Laws and Resolut (...)

22Since 2008 undocumented students have faced a multiplication of laws similar to Proposition 300 in Arizona, i.e. which limit public benefits in higher education to citizens and legal permanent residents only. Reports from the National Conference of State Legislatures show the great increase in the number of state laws introduced and enacted related to immigration (see right-hand column in table 1). Generally, most states try to limit their educational services to citizens and legal permanent residents only. In Georgia two laws were adopted in 2008 : the first limits access to student loans, including those granted on academic and income-related criteria, to citizens and permanent residents only.32 The second states that non-citizens can only be considered residents of the state for tuition fee purposes if they are legally present in the United States.33 Utah followed a similar trend : in 2008 the state enacted a law which limited state prisoners’ access to educational services to those who were legally present in the United States.34 In 2009 Wisconsin became the 11th state to offer in-state tuition to students who met certain criteria, based on the Texas and California models, only to revoke the law in 2011. Other states which currently have legislation allowing undocumented students to qualify for in-state tuition have seen legislative attempts to end this situation. In 2011, this was the case in California, Kansas, Nebraska, New York, Oklahoma and Texas.35

  • 36 Ibid.

23In 2011, 13 states considered 22 bills which dealt with limiting in-state tuition to citizens and legal permanent residents only, while 12 states considered 19 bills which would have granted them in-state tuition. None of the latter were enacted however. Of the former, a few were passed. Indiana adopted HB 1402 stating that students must be lawfully present in the US to qualify for in-state tuition. Montana enacted HB 638, which proposes a referendum to take place in 2012 asking voters whether the state should deny undocumented immigrants access to public universities and financial aid. Alabama adopted HB 56 which denies undocumented students access to public universities and financial aid.36 Undocumented students therefore face increasing restrictions in higher education, and even the small gains they were able to obtain in the past can be taken away. The available support for these students is becoming smaller each year as more states take on the issue of immigration.

The financial arguments against access to higher education

  • 37 Jack Martin and Ira Mehlman, 2005a, The Costs of Illegal Immigration to Texans. Federati (...)
  • 38 This law categorized as residents of the state for educational purposes those students w (...)
  • 39 Jack Martin and Ira Mehlman, 2005a, The Costs of Illegal Immigration to Texans (...)

24These types of laws have been introduced since 2003, but their adoption has accelerated with the advent of the financial crisis. Their proponents often present ending in-state tuition for undocumented students as a means to reduce the number of “incentives” to immigration. This argument was again used in 2011 and 2012 in the United States on the occasion of the Republican primary and the debates which took place among candidates for the 2012 presidential election. Opponents to in-state tuition for undocumented students see them as a form of incentive, encouraging more undocumented immigrants to come in order to obtain a free education for their children. Anti-immigration organizations such as the Federation for American Immigration Reform (FAIR) thus present in-state tuition among those measures which should be included in the costs of unauthorized immigration to states. A study of such costs to the state of Texas published in 2005 included the state’s practice of giving in-state tuition to some undocumented students. The authors present as a cost “subsidized tuition in the state’s higher education institutions borne by the taxpayer under a policy that allows illegal aliens to enroll as state residents”.37 The report refers to a law adopted in 2001 by the state of Texas.38 The authors also list several examples of local and state policies which “undermine federal immigration law enforcement efforts and encourage illegal immigrant settlement”.39 Among these are policies which provide other benefits to unauthorized immigrants, such as translation services and medical care. For organizations such as FAIR, state public policies should reflect their willingness to efficiently fight unauthorized immigration. Without such a stand their claim for reimbursement from the federal government for costs incurred from undocumented immigration will go unheard.

  • 40 Jack Martin and Ira Mehlman, 2005b, The Costs of Illegal Immigration to Floridians. Fede (...)
  • 41 Associated Press, 2004, “Governor Bush Backs Driver’s Licenses for Immigrants Illegally (...)
  • 42 Jeffrey S. Passel and Wendy Zimmermann. 2001. Are Immigrants Leaving Californi (...)
  • 43 Legislature of the State of New Mexico, 2004, Senate Bill 582. Prohibiting Den (...)

25Another report from the organization points to Florida, because in 2003 a state law allowed state and local governments to use identification papers issued by Mexico.40 Additionally, former Governor Jeb Bush had for a long time supported the idea that undocumented immigrants should be able to obtain drivers’ licenses.41 Florida was nevertheless one of the few states which sued the federal government in the 1990s for costs incurred from unauthorized immigration. Anti-immigrant organizations such as FAIR point to what they consider discrepancies in the state’s policies and judicial pursuits. The reproach made to states such as Texas and Florida is based on the “welfare magnet theory” which states that undocumented immigrants are attracted by states with generous public policies. This theory has however been countered by several reports on recent immigrant settlement patterns.42 At the time when New Mexico adopted legislation that allowed undocumented students to qualify for in-state tuition, the fiscal note which accompanied the bill stated that the measure should not be understood as an exoneration of tuition fees for non-residents. For those who wrote the bill, “there [was] no assumption for increases in the number of undocumented residents over time, i.e. no significant increases in undocumented immigration to the state for any reason”.43 For states granting in-state tuition to undocumented students, the goal is therefore not to encourage more immigration, but simply to deal with a category of students already present in the state.

  • 44 Michael Fix, Wendy Zimmermann and Jeffrey Passel, 2001, The Integration of Immigrant Fam (...)
  • 45 Jeffrey Passel and D’Vera Cohn, 2011, Unauthorized Immigrant Population : National and State (...)
  • 46 Jeffrey S. Passel, D’Vera Cohn, and Molly Rohal. 2014. Unauthorized Immigrants Totals Ri (...)

26The welfare magnet theory itself was contradicted by recent reports on new immigration patterns. A report from the Urban Institute from 2001 shows that “the states to which immigrants migrated during the period 1995 to 1999 were not the states that extended more generous benefits to noncitizens following welfare reform”.44 Such an observation can lead us to question the strength of welfare magnet theory since the new pattern of immigration seems to be guided more by the strength of local economies than by the generosity of local public policies. Additionally, the number of unauthorized immigrants has declined since the beginning of the economic crisis in the United States. Reports from the Pew Hispanic Center indicate that the number of undocumented immigrants has gone down since its peak of 2007, when roughly 12 million immigrants were assumed to be in the U.S. illegally. This number declined to 11.6 million in 2008, and 11.1 million in 2009. The number of undocumented immigrants in the workforce has also declined, from a high of 8.4 million people in 2007, to about 8 million in 2010.45 The economic slump in the United States may have made the U.S. less attractive to potential immigrants, and led to a decrease in the number of undocumented immigrants in the country. By 2012, the number of undocumented immigrants in the United States totaled 11.2 million individuals, showing that even after the end of the Great Recession unauthorized immigration has slowed down.46

  • 47 The Urban Institute, The Dispersal of Immigrants in the 1990s, op. cit., 1.
  • 48 Idem, 2.

27Immigrants therefore seem more attracted to areas which are doing well economically. Another report from the Urban Institute indicates that immigrants have changed their settlement patterns after the 1990s. The authors of the report note that the slowing down of the California economy has encouraged immigrants to settle in other, more attractive areas of the Rockies or the Southeast of the United States. The study shows that “public benefits do not appear to have driven these migration choices”.47 It also notes that those states where immigration has slowed down, such as California, Illinois, or New York States, have been among the most generous in terms of public benefits to non-citizens. However, the authors add that “most of the ‘new growth’ states have relatively weak safety nets for immigrant families”.48 In fact, in spite of a section of the welfare reform law in 1996 indicating that states could individually choose to replace federal aid to immigrants with their own funds, few of the new immigration states chose that option. On the contrary, most of them chose to restrict access to public benefits to citizens and legal permanent residents, as we have seen before. Access to public benefits therefore does not seem to be the main source of attraction for immigrants, whether they are coming to the United States through legal means or not.

The exploitation of public universities

28Public universities have become the focal point of the states’ search for funding cuts. In Arizona, when the state denied access to in-state tuition for undocumented students in 2006, the rhetoric that accompanied the proposition was already related to financial concerns. Public universities have a peculiar relationship to undocumented students. On the one hand, it is in their interest to increase the number of international and minority students, since these types of measures are used by national and international ranking systems. These students also pay higher tuition fees, which can compensate the progressive loss of financial support from the state. On the other hand, public universities are usually endowed with an egalitarian mission of providing better knowledge and training to all who qualify in order to prepare them for an increasingly competitive job market. In a 2010 interview with the Associate Vice President for Student Affairs at a large public university in the state of Arizona, these two goals were presented in competition with each other. Indeed, increasing the number of out-of-state students may increase competition with local, low-income students. Due to budgetary constraints related to financial crises, but also to political choices made in the state legislature, public universities are therefore forced to make a choice in their enrollment strategy, which may question their ability to serve the public at large.

  • 49 Interview with the Associate Vice President for Student Affairs and Dean of Ad (...)
  • 50 Ibid.

29The interview with the university official revealed the shift in the mission granted to public institutions of higher education due to the implementation of policies which restrict access to in-state tuition, and therefore to public universities altogether for most undocumented youth. His explanation describes the message which is sent to young undocumented immigrants by these policies : “I think there’s still widespread belief […] that we are here to serve the public. It’s just in this particular instance, the peculiarity of our state’s populace would be that in […] an isolationist […] fashion, we want to decide which part of the public we’re going to serve”.49 The message to students who are not present lawfully in the United States is that they are not part of the group of students for which the state considers that in has an interest in guaranteeing access to college by affording them in-state tuition. These public policies construct undocumented students as less deserving than their documented and citizen peers, and impose penalties to allow them access to college. For this particular official, the primary consequence of Proposition 300 in Arizona was the loss of students who could not find the necessary funding to pay the out-of-state tuition rate imposed on international and non-resident students : “I know that at the point where the Proposition was instituted, we lost several dozen students, but we also retained a few dozen students who managed to find their own resources to pay for their education. So I know that I lost some, I don’t think there was any recovery there”.50 Finding sources of private funding can be time-consuming and overwhelming for students who have very little resources. At the time that the policy was implemented, very little information circulated about those funding sources which were available to undocumented students. Even today, in spite of the efforts of groups such as United We Dream, DreamActivist, Act on a Dream at Harvard College, or the New York State Youth Leadership Council to advertise scholarships available to undocumented youth, finding information on scholarship can be a challenge.

  • 51 Id.
  • 52 See Douglas S. Massey and Magaly R. Sánchez, 2010, Brokered Boundaries : Creating Immigr (...)

30According to the Vice President for Student Affairs, the most surprising aspect of the policy was that it did not even help state officials recognize which students were actually undocumented, but simply forced those youths who could not produce certain documents to pay the out-of-state tuition rates : “Because you know, the interesting thing about Proposition 300 is that it doesn’t actually discover that you’re unlawfully present, it just makes you pay nonresident tuition”.51 This indicates that the goal of these policies is not to stop undocumented immigrants or detain them for future deportation. These policies have a double goal. On the one hand, they present the sponsors of the Proposition and its supporters as “tough” on immigration. For example, Dean Martin, then State Treasurer and supporter of Proposition 300, followed the adoption of the proposition by an announcement of his candidacy for the gubernatorial campaign of 2010. The other goal of these policies is to make life more difficult for undocumented immigrants in the hope that they will leave the state. This ignores the fact that most of those trying to gain access to college have lived in the United States for most of their lives, have graduated from high school, and live in mixed-status families.52 These propositions therefore affect more people than the actual targets of the law, including U.S.-born citizens.

  • 53 Interview with the Associate Vice President for Student Affairs, op. cit.
  • 54 Ibid.

31The problem with policies like the one adopted in Arizona in 2007 is that they may discourage students from even trying to get a college education. This was the assumption of the Vice President for Student Affairs at the Arizona-based University in 2010: “I will venture to guess that there are literally thousands of students in the state of Arizona who have opted out of a college education because their family didn’t have the means to pay for nonresident fees […], or they were concerned that the Proposition […] would expose them to potential deportation”.53 The backlash from state legislatures may instill fear among the undocumented population of the state, especially among those who have until then been treated as any other youth while pursuing their high school education. The decision not to go to college can have an effect on one’s personal development and financial situation, but as the Vice President for Student Affairs pointed out, it can also have an effect on the state’s revenue levels: “we likely have thousands of talented students […] that would [be] potentially much bigger taxpayers, if they had gone on to get their Bachelors, Masters or PhD, but […] aren’t paying those kinds of taxes because their aren’t earning those kind of wages because their didn’t get that kind of degree”.54 For him, the rhetoric around these types of policies misleads voters as to the real danger the state is facing. Voters are told that undocumented immigrants take advantage of the system established by the state, and in this way are encouraged to vote for policies which will ultimately diminish the state’s capacity to increase revenues. Public universities are those exploited by the state in order to implement policies which will marginalize undocumented immigrants and diminish the capacity of these institutions to serve the public at large.

States limiting access for undocumented students

  • 55 Legislature of the State of Oklahoma, 2007, House Bill 1804 : Oklahoma Taxpayer and Citizen (...)
  • 56 See Public Law 104-193 : Personal Responsibility and Work Opportunity Reconciliation Act (...)

32Several states have used the excuse of the financial crisis to follow the example set by Arizona and limit access to various benefits for undocumented immigrants. In 2003 Oklahoma adopted a law which granted in-state tuition to undocumented students. However, in 2007 the state reneged on its law and passed the Oklahoma Taxpayer and Citizen Protection Act (the name once again linking the economic and security realms). Section 2 of the law states that unauthorized immigration is the cause of numerous financial difficulties and disrespect for the law in the State, and that it is encouraged by the benefits offered by public agencies without verifying the status of their clients.55 The law reminds us that federal law mandates public agencies to check the status of persons claiming state and local benefits.56 The law also establishes that a report be drawn up each year by each public agencies distributing state benefits in order to check that they follow the new regulations. This provision is similar to the one imposed by Proposition 300 approved by Arizona voters in 2006. However, the 2007 Oklahoma law protects the rights of those undocumented students who had been qualifying for in-state tuition since 2003. The new law applies to those students registering in public universities starting in the 2007-2008 school year.

  • 57 General Assembly of the State of Missouri, 2008, House Bill 1463. Prohibiting (...)

33Another state which has showed its opposition to undocumented students’ access to in-state tuition is Missouri. In 2008, the state adopted several amendments to already existing laws. The restriction of access to public universities occurred in two steps. First, the General Assembly adopted House Bill 1463, according to which undocumented immigrants cannot register at Missouri public universities. The law also mandates registrars’ offices in all campuses of the University of Missouri to draw up a report each year certifying that the campus did not knowingly admit any unauthorized immigrants.57 Once again, this particular provision is similar to the one adopted in Arizona in 2006, and reinforces the hierarchy between public universities and the administration of the state. The text of the law reminds us that public universities are partially financed by the revenues collected by the state, and therefore the state has the right to limit access to higher education and to state benefits to citizens and legal permanent residents only.

  • 58 General Assembly of the State of Missouri, 2008, House Bills 1549, 1771, 1395 & 2366. 94(...)

34The second step in those restrictions was also introduced by a series of amendments, this time in order to include a definition of the term “public benefits” in Missouri state law that matches that of the federal welfare reform of 1996. The text references Title 8 of the US Code, Section 1621, as does the law adopted in Oklahoma in 2007. A public benefit is therefore defined as “any grant, contract, or grant given by an agency of the state or of the local government ; or any aid […] for higher education, grant or assistance from the state […] for which one is granted a payment, aid, credit, or in-state tuition”.58 Missouri thus prevents universities from trying to circumvent the law, by allowing undocumented students to qualify for in-state tuition by claiming that it does not consist in a direct payment, and is therefore not a public benefit. Public universities are thus being transformed into a forward position of various states’ governments in their fight against undocumented immigration. The financial crisis and the economic downturn have provided new favorable listeners to those who advocate for a change in the function of public universities. State legislatures however are not the only venue through which undocumented immigration is being fought, and in keeping with the adversarial nature of American political culture, the courts have provided opportunities for further restrictions on undocumented immigrants.

Intervention of the courts

  • 59 Superior Court of the State of California, 2006, Martinez et al v. Regents of the (...)
  • 60 U.S. Supreme Court, De Canas v. Bica, 424 U.S. 351. Washington, D.C. 1976.

35The first complaint against Assembly Bill 540 adopted in 2001 in California was made in 2006. A group of students filed a lawsuit against the Regents of the University of California and several university associations such as Improving Dreams, Equality, Access and Success (IDEAS) at UC Davis and UCLA. The plaintiffs claimed that the law was a violation of their constitutional rights, and mainly of the Equal Protection Clause of the 14th Amendment to the Constitution. In October 2006, the court noted that this lawsuit was a reflection of the national debate on immigration and of the role of undocumented immigrants in communities across the United States. The court refused the fact that there was a federal preemption of the national government in regards to the California law.59 Indeed, since the De Canas v. Bica decision of 1976,60 states are allowed to adopt legislation dealing with immigrants residing in their states as long as these laws do not attempt to regulate immigration. Moreover, the court noted that the fact that students were asked to attend a high school in California in order to qualify for in-state tuition did not require them to reside in the state, since nonresidents can register in high schools located in California. The law therefore did not classify persons based on their nationality or resident status, as the plaintiffs had claimed. Finally, the court added that the last criteria for qualifying for in-state tuition, which was the obligation for undocumented immigrants to sign an affidavit certifying that they would apply for legal status as soon as it would be possible for them to do so, constituted an additional step for these students, who could not therefore be said to be privileged in comparison to others.

  • 61 Court of Appeals of the State of California, 2008, Martinez et al v. Regents of the Univ (...)
  • 62 U.S. Congress, 1996, Public Law 104-208 : Illegal Immigration Reform and Immig (...)

36In 2008, the Appeals Court for the Third District of California struck down the 2006 decision,61 The Court sided with a report from the committee which studied section 505 of IIRIRA in 1996,62 and which had declared that the section meant that undocumented students could not be eligible for in-state tuition in public institutions of higher education. The Regents of the University of California, as the defendants, had attempted to show that section 505 only made reference to sums of money which could not be given to undocumented immigrant students, rather than a specific tuition fee. The court rejected this line of defense.

  • 63 Court of Appeals for the Third Circuit, 2007, Lozano et al. v. City of Hazleton No. 07-3531, (...)

37According to the Appeals Court, imposing attendance in a California high school as a criterion for in-state tuition created a form of residence in the state. Since the law requires that students be registered in a California high school prior to qualifying for in-state tuition at the university level, then the state has effectively created a criterion of substation for obtaining residency status. The Court concludes by citing the lacks in the legislation adopted by the state of California. First, according to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, in order for an unauthorized immigrant to benefit from state aid in high education, this state must adopt a law that specifically mentions this category of immigrants as well as their rights. Second, according to the 2007 Lozano v. City of Hazleton decision,63 state laws related to unauthorized immigrants must make reference to federal laws related to the same subject. The Court ended its examination of the case by explaining that the California law did not meet any of these two conditions, and therefore reversed the decision which had been made by the Superior Court in 2006. It therefore reinstated the suit brought on by the original plaintiffs against the Regents of the University of California.

  • 64 California Supreme Court, 2010, Martinez et al. v. Regents of the University of (...)

38The California case continued beyond the Appeals Court decision. The case was brought to the California Supreme Court, which issued a decision to dismiss the suit, as the trial court had done in 2006. Once again, the judicial branch reminded the public of its powers, but also of its limitation. The Court thus stated that “it does not make policy. Whether Congress’s prohibition or the Legislature’s exemption is good policy is not for us to say”,64 The Supreme Court of the state decided that the California law adopted in 2001 did not violate federal legislation, mainly section 505 of the 1996 IIRIRA, because the decision to award in-state tuition turned on where the student had gone to high school, rather than his or her place of residency. The Court also ruled that the plaintiffs did not meet the proper criteria to continue with the lawsuit. The conclusion of the court was therefore to reverse the 2008 decision of the Court of Appeals.

Conclusion

39Along with the rest of the unauthorized population living in the United States, undocumented students now have to face a serious backlash from state legislatures claiming to cut costs for their own governments. Along with other nations, the United States has progressively decreased its support for higher education, and has shifted the responsibility for college costs from government – whether at the federal or at the state level – onto students and their families. In spite of a recent ruling by the California Supreme Court favorable to in-state tuition for undocumented students, several state legislatures have enacted policies which will inevitably marginalize them even further. The crisis has in fact toughened the new relationship existing between state government and public institutions of higher education. Just as the withdrawal of federal support has encouraged states to compete against one another, public universities are now becoming the locus of an intense competition among individuals. Due to financial pressure mounted by state legislatures, public universities are encouraged to serve a particular section of the public at the expense of undocumented youths, which further questions the egalitarian mission of public institutions of higher education.

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Notes

1 John R. Thelin, “Higher Education and the Public Trough : A Historical Perspective.” in Edward St. John and Michael D. Parsons (Eds.), Public Funding of Higher Education. Changing Contexts and New Rationales. The Johns Hopkins University Press, Baltimore and London, 2004, 21-39.

2 Idem.

3 James C. Hean and Janet M. Holdsworth, “Federal Student Aid : The Shift from Grants to Loans.” in Edward St. John and Michael D. Parsons (Eds.), Public Funding of Higher Education. Changing Contexts and New Rationales. The Johns Hopkins University Press, Baltimore and London, 2004, 40-59.

4 Phil Izzo, “Congratulations to Class of 2014, Most Indebted Ever”, The Wall Street Journal, May 16, 2014.

5 Sandy Baum and Marie O’Malley, “College on Credit : How Borrowers Perceive Their Education Debt”, Journal of Student Financial Aid, 33(3), 7-19.

6 Jennie H. Woo, Degrees of Debt : Student Borrowing and Loan Repayment of Bachelor’s Degree Recipient 1 Year After Graduating : 1994, 2001 and 2009, U.S. Department of Education, October 2013, NCES 2014-011.

7 Terry W. Hartle, “How People Pay for College : A Dramatic Shift.” Chronicle of Higher Education, n° 41, November 1994, A52, 52.

8 Anthony P. Carnevale and Richard Fry, Economics, Demography, and the Future of Higher Education Policy. Educational Testing Service. Washington, D.C., 2002.

9 Robert Haveman and Timothy Smeeding, “The Role of Higher Education in Social Mobility.” In Woodrow Wilson School of Public and International Affairs at Princeton University and The Brookings Institution, The Future of Children. Vol. 16, No. 2, 2006, 137.

10 Ibid.

11 Maria E. Zarate and Harry Pachon, Perceptions of College Financial Aid Among California Latino Youth. Tomás Rivera Policy Institute, University of Southern California, Los Angeles, California. June 2006.

12 James C. Hean and Janet M. Holdsworth, “Federal Student Aid : The Shift from Grants to Loans.” op. cit.

13 The Scholastic Aptitude Test measures academic readiness for college by testing high school students on reading, writing and math. Students take the test during their junior year of high school and send the results as part of their college or grant application.

14 Michael Kramer, “Stresses in the Student Financial Aid System” in Hauptman, Arthur M. and Robert H. Koff (Eds.), New Ways of Paying for College, New York: American Council on Education – Macmillan, 1991, p. 25.

15 C. Bruce Johnstone, “The economics and politics of cost sharing in higher education : comparative perspectives,” Economics of Education Review, 23(2004), 403-410.

16 Deborah Stone, Policy Paradox : the Art of Political Decision Making, New York: W. W. Norton, 3rd edition, 2012.

17 The Urban Institute, The Dispersal of Immigrants in the 1990s. Immigration Studies Program. November, Brief N° 2. Washington, D.C. 2002, 37.

18 U.S. Supreme Court, San Antonio Independent School District v. Rodriguez 411 U.S. 1, Washington, D.C., 1973.

19 The Urban Institute, The Dispersal of Immigrants in the 1990s, 2.

20 This law exempted some undocumented students from non-resident tuition fees if they had attended a high school in the state for at least 3 years and graduated from a high school in the state. Beneficiaries also had to fill an affidavit indicating that they would file an application to legalize their status as soon as they would be eligible to do so.

21 Government Accountability Office, Illegal Alien Schoolchildren. Issues in Estimating State-by-State Costs. Report to the Committee on the Judiciary, House of Representatives. Washington, D.C. 2004.

22 This proposition limited access to various state services and aid programs (such as in-state tuition in public higher education) to citizens and legal permanent residents only. Higher education employees were also required to report to the state the number of individuals who had been turned away because of lack of legal status.

23 Robert Haveman and Timothy Smeeding, “The Role of Higher Education in Social Mobility,” op. cit., 137.

24 Anthony P. Carnevale and Richard Fry, Economics, Demography, and the Future of Higher Education Policy, op. cit., 10.

25 Arizona State Legislature, Senate Bill 1070 : Support our Law Enforcement and Safe Neighborhoods Act, Phoenix, AZ, 2010.

26 Fanny Lauby, « Les étudiants sans papiers aux Etats-Unis : une menace pour les universités publiques ? » Civilisations, N° 11 : ‘Le Rejet’ Pp. 165-180, Presses de l’Université Toulouse 1-Capitole, 2011.

27 See H.R. 1868 Birthright Citizenship Act of 2009 and S. 723 Birthright Citizenship Act of 2011.

28 The Reconstruction Amendments, adopted after the Civil War between 1865 and 1870, were essential in abolishing slavery (13th Amendment), establishing a national citizenship (14th Amendment), and granting voting rights (15th Amendment) from which certain groups – such as African Americans – could not be excluded.

29 Julia Preston, “Senators Offer a Bipartisan Blueprint for Immigration”, The New York Times, published January 28, 2013, <http://www.nytimes.com/2013/01/28/us/politics/senators-agree-on-blueprint-for-immigration.html>, accessed in October 2015.

30 These reports are available through an online search engine, <http://disclosures.house.gov/ld/ldsearch.aspx>, for the House of Representatives, and <http://soprweb.senate.gov/index.cfm?event=selectfields>, for the U.S. Senate (both accessed in September 2015).

31 Ashley Parker and Jonathan Martin, “Senate, 68 to 32, Passes Overhaul for Immigration”, New York Times, June 27, 2013, <http://www.nytimes.com/2013/06/28/us/politics/immigration-bill-clears-final-hurdle-to-senate-approval.html?pagewanted=all>, accessed in September 2015.

32 General Assembly of the State of Georgia, 2008, Senate Bill 169, Atlanta, Georgia.

33 General Assembly of the State of Georgia, 2008, Senate Bill 492. Determination of resident status of students for tuition or fees, Atlanta, Georgia.

34 Legislature of the State of Utah, 2008, House Bill 86 : Funding of Inmate Postsecondary Education. Salt Lake City, Utah.

35 National Conference of State Legislatures, 2012, 2011 Immigration Related Laws and Resolutions in the States, Immigrant Policy Project, Washington, D.C.

36 Ibid.

37 Jack Martin and Ira Mehlman, 2005a, The Costs of Illegal Immigration to Texans. Federation for American Immigration Reform. April, Washington, D.C., 4.

38 This law categorized as residents of the state for educational purposes those students who had lived in the state of Texas for three years and had graduated from a high school in the state, thus offering undocumented students the possibility to pay in-state tuition. Beneficiaries also signed an affidavit saying they would legalize their status as soon as they would be eligible to do so.

39 Jack Martin and Ira Mehlman, 2005a, The Costs of Illegal Immigration to Texans. Federation for American Immigration Reform, op. cit., 14.

40 Jack Martin and Ira Mehlman, 2005b, The Costs of Illegal Immigration to Floridians. Federation for American Immigration Reform. Revised in October. Washington, D.C.

41 Associated Press, 2004, “Governor Bush Backs Driver’s Licenses for Immigrants Illegally in the US”, The New York Times, published April 7, 2004, <http://www.nytimes.com/2004/04/07/national/07FLOR.html>, accessed in October 2015.

42 Jeffrey S. Passel and Wendy Zimmermann. 2001. Are Immigrants Leaving California? Settlement Patterns of Immigrants in the Late 1990s. Washington, D.C.: The Urban Institute.

43 Legislature of the State of New Mexico, 2004, Senate Bill 582. Prohibiting Denial of Admission of Eligibility for Education Benefits on Account of Immigration Status. 47th Legislature. Santa Fe, New Mexico.

44 Michael Fix, Wendy Zimmermann and Jeffrey Passel, 2001, The Integration of Immigrant Families in the United States. The Urban Institute. Washington, D.C., 10.

45 Jeffrey Passel and D’Vera Cohn, 2011, Unauthorized Immigrant Population : National and State Trends, 2010. Pew Hispanic Center, Washington, D.C.

46 Jeffrey S. Passel, D’Vera Cohn, and Molly Rohal. 2014. Unauthorized Immigrants Totals Rise in 7 States, Fall in 14. Decline in Those from Mexico Fuels Most State Decreases. Washington, D.C.: Pew Hispanic Center.

47 The Urban Institute, The Dispersal of Immigrants in the 1990s, op. cit., 1.

48 Idem, 2.

49 Interview with the Associate Vice President for Student Affairs and Dean of Admissions of a large public university in Arizona, February 2010.

50 Ibid.

51 Id.

52 See Douglas S. Massey and Magaly R. Sánchez, 2010, Brokered Boundaries : Creating Immigrant Identity in Anti-Immigrant Times. New York: Russell Sage Foundation ; and Mae M. Ngai, 2004, Impossible Subjects : Illegal Aliens and the Making of Modern America. Princeton and Oxford: Princeton University Press.

53 Interview with the Associate Vice President for Student Affairs, op. cit.

54 Ibid.

55 Legislature of the State of Oklahoma, 2007, House Bill 1804 : Oklahoma Taxpayer and Citizen Protection Act of 2007. 51st Legislature. Oklahoma City, Oklahoma.

56 See Public Law 104-193 : Personal Responsibility and Work Opportunity Reconciliation Act, Washington, D.C. August 1996.

57 General Assembly of the State of Missouri, 2008, House Bill 1463. Prohibiting the admission of aliens unlawfully present in the United States at public institutions of higher education. 94th General Assembly. Jefferson City, Missouri.

58 General Assembly of the State of Missouri, 2008, House Bills 1549, 1771, 1395 & 2366. 94th General Assembly. Jefferson City, Missouri.

59 Superior Court of the State of California, 2006, Martinez et al v. Regents of the University of California. Yolo County Superior Court, California. 2006.

60 U.S. Supreme Court, De Canas v. Bica, 424 U.S. 351. Washington, D.C. 1976.

61 Court of Appeals of the State of California, 2008, Martinez et al v. Regents of the University of California. September. Sacramento, California.

62 U.S. Congress, 1996, Public Law 104-208 : Illegal Immigration Reform and Immigrant Responsibility Act, Washington, D.C.

63 Court of Appeals for the Third Circuit, 2007, Lozano et al. v. City of Hazleton No. 07-3531, Philadelphia, PA.

64 California Supreme Court, 2010, Martinez et al. v. Regents of the University of California, 241 P.3d 855, San Francisco, CA.

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Fanny Lauby, « State Budget Crises and Access to College for Undocumented Students in the United States », Revue LISA/LISA e-journal [En ligne], vol. XIV-n°1 | 2016, mis en ligne le 23 février 2016, consulté le 23 avril 2017. URL : http://lisa.revues.org/8854 ; DOI : 10.4000/lisa.8854

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Fanny Lauby

Fanny Lauby est professeur agrégée et diplômée de l’Ecole Normale Supérieure de Cachan. Après avoir obtenu un double doctorat à la Sorbonne Nouvelle et à la City University of New York, elle enseigne les Sciences Politiques à l’Université William Paterson dans le New Jersey. Sa recherche porte sur l’incorporation politique des immigrés en situation irrégulière, notamment par le biais de leur participation dans l’enseignement supérieur.

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