In-State Tuition for Undocumented Students: 2017 State-Level Analysis

NASPA’s Public Policy Agenda, adapted from NASPA’s guiding principles, directly supports the success of undocumented members of the campus community. Due to recent mixed messaging within the new administration regarding the future of Dreamers, and a potential lawsuit brought on by Texas Attorney General Ken Paxton and state officials from nine other states regarding the continuance of the Deferred Action for Childhood Arrivals (DACA) program, undocumented students, faculty, staff, and the student affairs professionals who work with them may require supplemental support at this time. While many states with higher immigrant populations, upwards of 21 with the inclusion of University of Maine last week, provide in-state tuition for undocumented students, either at the state or institutional level, recently proposed legislation in some states would rescind these policies. This post provides background on current in-state tuition policies and an in-depth analysis of 2017 state legislative sessions as they draw to a close.

Background on In-State Tuition Policies for Undocumented Immigrants

There are many sound economic and public good incentives to provide in-state tuition to undocumented immigrants for states.  As detailed in a 2010 data-driven study by Stella M. Flores of Vanderbilt University, foreign-born students in states with in-state tuition policies, in this case, specifically Latinx/a/o students who represent a significant portion of undocumented students, are more likely to enroll in college than those in states without these policies in place. Efforts to increase college enrollment for marginalized students, may economically increase the wealth of the state, and support efforts to close the gap in high school graduation rates. Further, in-state tuition access for undocumented students increases college affordability for these students, which has been an issue widely connected to college completion rates for racial minorities.

Opponents of state-based in-state tuition policies argue that undocumented students without a work permit through the DACA program have little chance of finding work after graduation. However proponents argue that the Development, Relief, and Education for Alien Minors (DREAM) Act, or a policy like it that offers a pathway for citizenship for undocumented children will eventually pass, especially in light of the positive impacts immigrants bring to the local economy and the role of immigrant teachers in the classroom. Congress introduced the DREAM Act 2017 on July 20, and the Migration Policy Institute offers a factsheet detailing projected beneficiaries should the bipartisan legislation move forward.

While immigration policy is typically considered within the responsibilities of the federal government, tuition at state postsecondary institutions falls squarely within state jurisdictions. The 1996 passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) specifically denied state residency status to undocumented individuals in section 505, which reads, “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.” However, states have argued that in attempting to stipulate tuition requirements, the federal policy infringes on a fundamental right of the states, and a number of states have instituted policies which determine state residency regardless of immigration status, using instead location of high school attendance as the primary indicator.

According to the National Council of State Legislatures, as of 2015, 17 states had at some point since 2001 passed statewide in-state tuition legislation for undocumented immigrants. This analysis included Wisconsin, which revoked its policy in 2011. In addition, at least five state university systems have adopted in-state tuition policies - University of Hawaii, University of Michigan, Oklahoma State, Rhode Island, and now University of Maine - bringing the count of states with inclusive tuition policies up to 21.

State-level Policy Analysis for the 2017 Legislative Session

In the 2017-2018 state legislative session, NASPA’s Policy and Advocacy Team tracked 21 pieces of legislation regarding in-state tuition for undocumented students in 12 states. Currently 10 pieces of legislation are still pending, while 11 pieces of failed to pass (see map below).

While movement on nearly all pending legislation is slow, the type of policies introduced exemplify a few trends in measures in both states with current in-state tuition policies in place, and in those without. Overall, legislation introduced, majorly seeks to enhance in-state tuition policies in place, while policymakers within certain states, such as Texas, continue to push back against these policies.

Measures to Increase Inclusivity

California, Texas, New York, Maryland, Florida, and Connecticut all currently have statewide in-state tuition policies in place that extend to undocumented immigrants. During this legislative session, pending California bills, CA AB 1307 and CA AB 21, make no substantial change to the existing policy, but reassert that the in-state policy for undocumented individuals who qualify for in-state residency is the withstanding law. Several pieces of Florida legislation (FL HB 1341, FL SB 1732, FL SB 82, and FL SB 700) would have increased eligibility for those undocumented individuals qualifying for in-state tuition, but all failed to move forward. Similarly, Maryland legislation, MD HB 1508 and MD SB 1000, which sought to create additional exemptions for undocumented individuals from paying out-of-state tuition, also failed. New York legislation, NY S 1350, still pending, though without movement in committee since January 2017, aims to provide state-aided scholarship opportunities for undocumented students within their state universities and community college systems. Likewise, despite a pull from Governor Cuomo, undocumented students are not eligible for New York’s statewide tuition-free scholarship, the Excelsior program.

Rhode Island which currently only has in-state tuition policies in place through the Board of Governors for Higher Education, introduced statewide policies through RI HB 5237 and RI SB 466. Neither bill is expected to progress through the legislature, and RI HB 5237 has been recommended to be held for further study before committee reconsideration.

Lawmakers in Indiana, which currently bans in-state tuition eligibility for undocumented individuals, introduced a bill to allow localities to refrain from using immigration status to determine in-state residency, IN HB 1149, but this bill died in committee.

Iowa, Mississippi, Pennsylvania, and Tennessee do not yet have in-state tuition policies in place, at the state or institutional level. Iowa (IA HF 27), Mississippi (MS HB 212), and Pennsylvania (PA SB 825) all introduced straightforward legislation to extend in-state tuition to undocumented state residents. While the Mississippi legislation died in committee, Iowa and Pennsylvania bills are both currently pending. Pending legislation in Tennessee (TN HB 660 & TN SB 635) would give public institutions discretion in determining eligibility for state residency status.

Measures in States Aimed at Rescinding Inclusive Policies

Connecticut (CT HB 5639) and Texas (TX SB 2171, TX SB 2059, and TX HB 393) both introduced legislation which sought to revoke the in-state tuition policy in place, but all four bills failed to make headway.

Despite the introduction of this exclusionary bill, Connecticut has largely been a part of New England advocacy efforts to extend equal access to colleges and universities to undocumented students. The state universities and community college systems in Connecticut currently offer undocumented students scholarships from states which ban in-state tuition eligibility through the Dream.Us Scholarship program. Further, Immigration advocates intend on re-introducing legislation aimed at expanding institutional financial aid opportunities during the 2018 legislative session.

Texas was the first state to create an inclusive in-state tuition and financial aid policy for undocumented students in 2001 through SB 1403, but has been met with considerable pushback ever since. In 2009, the Immigration Reform Coalition of Texas sued the Lone Star College system for providing undocumented students with state aid, and respective bills to revoke the 2001 policy have been introduced in each of the last four state legislative sessions.

The analysis provided in this post includes a rundown of bills introduced within the 2017-2018 state legislative session, and does not include a breakdown of judicial proceedings that have also affected in-state tuition eligibility, such as a recent Arizona appeals court ruling which denies in-state tuition to DACA recipients.  Please look for future blogposts on federal and state immigration policy for additional analysis.

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