Arizona Supreme Court Denies In-State Tuition for Dreamers

This morning I am thinking about higher education for Dreamers, students who were brought here as young children by their undocumented parents, students who have grown up in our communities but who have been relegated to the shadows without protection of significant rights by law.  The term “Dreamer” comes from the name of the law to protect their rights—a law whose passage these young people have been seeking now for almost two decades, the Development, Relief and Education for Alien Minors (DREAM) Act.

I first learned about the academic challenges these students face nearly twenty years ago from a high school counselor in Arizona who explained to me that the valedictorian at her school could not qualify for in-state tuition or a college scholarship to a public community college or university in her state.  Neither could such a student qualify for a Pell Grant or a federally guaranteed college loan.  The counselor was beside herself; she didn’t know where to turn to find help for this student. At that time the lack of protection for these students was unknown to me, and I was shocked.

Since that time, eighteen or so states have created their own laws to allow these students to matriculate with their peers (and pay the same tuition) at their state colleges and universities. But the right is still regularly contested as legislators try to block these laws and as they are tested in court.

To protect undocumented young people from deportation, President Barack Obama established the Deferred Action for Childhood Arrivals (DACA) program in 2014. To qualify, a young person must have arrived in the United States before 2007 and have met several other conditions. Although President Obama protected Dreamers from deportation and created their right to drivers licenses and work permits, however, under federal law he was unable to establish their right to in-state college tuition or federal student loans or grants.

On Monday of this week, the problem of a state’s denial of in-state college tuition once again made the news.  The Arizona Supreme Court upheld an appeals court decision denying Dreamers’ right to Arizona in-state tuition.  The Washington Post‘s Samantha Schmidt reports: “The Arizona Supreme Court on Monday ruled that young immigrants protected from deportation under an Obama-era program will no longer be eligible for in-state tuition at the state’s public colleges. The court unanimously agreed with the Arizona Court of Appeals, which ruled that federal and state laws do not allow Maricopa Community Colleges to grant in-state tuition to Deferred Action for Childhood recipients, also known as ‘dreamers.'”

The difference between in-state and out-of-state tuition will prevent a number of students from continuing their education. Schmidt explains: “The decision means that Arizona college tuition costs could double or even triple for DACA recipients. In-state tuition for the next school year at Arizona State University, for example, is $9,834, while nonresident tuition is $27,618…. Arizona residents pay $86 per credit hour at the Maricopa Community Colleges, while nonresidents pay $241.”

In a short update from Fronteras, Jorge Valencia explained on Monday: “The unanimous ruling from the seven-member court stems from a lawsuit brought by the Maricopa Community Colleges District, which wanted to give in-state tuition to students who had been brought to the country illegally as children.”  Maricopa County encompasses greater Phoenix.

In a policy brief, Student Affairs Administrators in Higher Education (NASPA), explains federal law as it applies to in-state tuition for Dreamers. According to NASPA, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) denies the right to in-state tuition. The language is confusing: “(A)n alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or political subdivision) for any postsecondary education benefit unless a citizen or a national of the United States is eligible for such a benefit… without regard to whether the citizen or national is a resident.”  This statement would seem to mean that any state with different in-state and out-of-state tuition rates could not grant in-state tuition to a young person who is a resident of the state but who lacks U.S. citizenship.

NASPA then explains how a number of states states have justified their policies that do grant in-state tuition to Dreamers:  “(S)tates 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.”

The National Conference of State Legislators (NCSL) explains further: “Supporters of the legislation argue that the requirement to receive in-state tuition is based on high school attendance and graduation, not residency, and so it is not in conflict with IIRIRA.”

In a 2015 policy brief, NCSL identifies 18 states which have, since 2001 granted in-state tuition for undocumented graduates of their states’ public high schools: California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Jersey, New Mexico, New York, Oklahoma, Oregon, Texas, Utah, Washington, and Wisconsin.  In the same document, NCSL names three states that have at one time or another specifically prohibited the granting of in-state tuition for undocumented students who are graduates of their high schools: Arizona, Georgia, and Indiana.  NCSL adds, “Alabama and South Carolina go one step further and prohibit undocumented students from enrolling at any public postsecondary institution… At lest five states—California, Minnesota, New Mexico, Texas and Washington—allow undocumented students to receive state financial aid.”  Some states have given their Boards of Regents permission to grant in-state tuition; these include Rhode Island, Hawaii, and Michigan. Virginia’s attorney general has granted in-state tuition to students enrolled formally in DACA.

The National Conference of State Legislatures adds that the right to free public K-12 education was guaranteed in a 1982 decision of the United States Supreme Court: “Due to the landmark 1982 Plyler v. Doe U.S. Supreme Court decision, states are required to provide all students with K-12 public education, regardless of students’ immigration status.  Although the court did not declare education a fundamental right, it was determined that a ‘public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage; the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological well-being of the individual, and poses an obstacle to individual achievement.’ ”

I believe this is a moral issue. What kind of society would deny the kind of basic rights we all take for granted to young people who have lived for almost their entire lives in our communities? These young people are our own children’s peers.  In the language of the decision in Plyler v. Doe, doesn’t the deprivation of higher education also take an inestimable toll on the social, economic, intellectual, and psychological well being of the individual, and doesn’t higher education also play a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage?

The Washington Post‘s Schmidt reminds readers that the news about the Arizona Supreme Court’s denial of in-state tuition “also comes as the DACA program as a whole is in limbo. The Trump administration planned to phase out the program and rescind work permits for hundreds of thousands of DACA recipients beginning March 5.  But federal district judges in California and New York issued nationwide injunctions blocking these plans.” President Trump made full-funding for his border wall a condition Congress must meet before he claimed he would sign a bill extending DACA, but when Congress promised the funding, the President changed his mind and demanded all sorts of further restrictions on legal immigration. Dreamers face an unknown and precarious future.

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DACA Fight Symbolizes Fear that American Life Has Become a Mere Zero-Sum Competition

Why is the DACA crisis a topic for a blog on public education?

This is the impasse in Congress, exacerbated by President Donald Trump’s flip flops—saying he’ll sign any compromise Congress presents to him to protect so-called Dreamers from deportation—then rejecting any compromise that fails to include a number of other priorities of his own including the border wall and outright bans on other kinds of legal immigration long accepted as enriching our communities.

Young people who call themselves Dreamers were brought to the United States as young children without documentation. They have been raised in our neighborhoods and promised an education through 12th grade in our public schools.  In 1982, the U.S. Supreme Court upheld Dreamers’ right to a K-12 public education under the protection of the 14th Amendment in a decision known as Plyler v. Doe.  Many of these young people came to the United States as babies and toddlers; they may neither remember their parents’ native country nor speak its language.  These young people include high school valedictorians, honor students, musicians, athletes, artists and lots of school teachers.  Until 2012, when President Barack Obama established the Deferred Action for Childhood Arrivals—DACA—our society forced them to live in the shadows.

Access to higher education has been a major obstacle to these young people. It used to be hoped that the federal government would protect their right to in-state college tuition and access to Pell Grants and federally backed student loans. Lacking these protections, the 2012 DACA at least protected their right to avoid deportation and qualify for a two-year renewable work permit.  Last September, President Trump rescinded DACA protection, saying he would begin to phase out the program after six months—on March 5, 2018. Last month, however, on January 9, a federal court in San Francisco issued an injunction to reinstate the DACA program and at least stop the clock on its pending phase out.

Since last September, when he announced the phase out of DACA, the President has called on Congress to come up with a long term solution, claimed to “love” the DACA kids, promised to sign a compromise, and then bluntly refused to consider any of the plans on which Congress has shown signs of compromising. A danger is that any kind of solution is now lost in a tangle of Congressional chaos, dysfunction, and other pressing issues on the Congressional agenda.

I believe that the debate about DACA is an appropriate subject for this public education blog because it is about our society’s responsibility to the Dreamers who live among us, study in our public schools, and work among us.  According to Greg Sargent of the Washington Post, there may be 1.8 million of these Dreamers who wait in limbo as the President refuses to work with Congress to enact a compromise that would protect them.  While, according to Sargent, 81 percent of Americans favor protection for Dreamers, an extremist minority including key advisors to the President and many in the House Freedom Caucus hold tight to an ethos of individualistic competition and believe personal success is a zero sum game.  Somehow opponents of DACA believe recipients of DACA protection will be successful, and their success will limit the chances of native-born American young people.

Certainly the fathers of our system of public schools understood society and education very differently. Schools create educated citizens, they believed, and it is society’s responsibility to serve all children in order not only to enrich children’s personal lives, but also to benefit society as a whole.  Here is John Dewey from The School and Society, published in 1898: “What the best and wisest parent wants for his own child, that must the community want for all of its children… Only by being true to the full growth of all the individuals who make it up, can society by any chance be true to itself.”

Benjamin Barber, the political philosopher, explored the ideals that over time have been broadly accepted about the role of public schools in the United States.  In An Aristocracy of Everyone, Barber confronts those who believe that life is a competition of winners and losers— where another’s success might result in one’s own or one’s child’s failure: “This book…. assumes that every human being, given half a chance, is capable of the self-government that is his or her natural right, and thus capable of acquiring the judgment, foresight, and knowledge that self-government demands. Not everyone can master string physics or string quartets, but everyone can master the conduct of his or her own life. Everyone can become a free and self-governing adult… Education need not begin with equally adept students, because education is itself the equalizer. Equality is achieved not by handicapping the swiftest, but by assuring the less advantaged a comparable opportunity.  ‘Comparable’ here does not mean identical… Schooling is what allows math washouts to appreciate the contributions of math whizzes—and may one day help persuade them to allocate tax revenues for basic scientific research… The fundamental assumption of democratic life is not that we are all automatically capable of living both freely and responsibly, but that we are all potentially susceptible to education for freedom and responsibility. Democracy is less the enabler of education than education is the enabler of democracy.” (An Aristocracy of Everyone, pp. 13-14)

Barber would have appreciated Erica Green’s NY Times profile of Karen Reyes, an Austin, Texas preschool teacher who specializes in education for deaf children.  Ms. Reyes is a Dreamer: “Ms. Reyes was brought to the United States from Monterrey, Mexico, by her mother at age 2. When she thinks of home, she thinks of the only one she can remember, in San Antonio… where she and her grandmother would pick pecans from a tree in the front yard. Her childhood was ‘all-American,’ she said, recalling late afternoons at marching band practice, at the Y.M.C.A. or selling Girl Scout cookies…. (H)er mother was strict.  When she was 14, she found out why.  Her friends wanted to take a shopping trip to South Padre Island, then Laredo, on the Texas border with Mexico, but her mother forbade her from going because if she came upon an immigration checkpoint, she would not have the paperwork to pass.  ‘It changes the trajectory of your life,’ Ms. Reyes said.  The barriers of being undocumented became more apparent after that—especially in applying to college. But with teachers’ help, she secured private scholarships for a graduate school program for special education teachers who wanted to teach the hearing-impaired. She received her master’s degree from the University of Texas at San Antonio….”

Reyes is among at least 9,000 school teachers now contributing to our society, paying taxes, waiting for some resolution of the DACA crisis, and hoping for confirmation they will have a future here in the United States, the only country they know.

Government Confusion and Dysfunction Increases Insecurity for Children, Families, and Schools

Life is filled with unknowns and eventualities we cannot control, but it used to be that we could expect the core functions and protections of government to be more or less predictable.  For twenty years now, parents whose jobs did not provide health insurance but who earned too much to qualify for Medicaid have been secure, knowing they could cover their children through the Children’s Health Insurance Program, a federal program administered by the states.

And in 2012 President Obama created the Deferred Action for Childhood Arrivals (DACA) program to protect the young people who were brought here as babies or toddlers by their undocumented immigrant parents. DACA ensured these young people could at least qualify for a driver’s license, secure a work permit, and know they would not be deported as they matured into young adulthood.

We seem to live in a time of diminished expectations. Ten or fifteen years ago, the DREAM Act was additionally aimed at protecting the DREAMERS’ right to higher education—to qualify for in-state college tuition and be able to apply for a Pell Grant or a federally protected college loan. While those aims became politically unreachable, at least President Obama was able to ensure through DACA that the estimated 800,000 DREAMERS have been protected from deportation and granted the right to earn a living in the society where they have grown up and been educated in K-12 public schools.

Since last September, however, when President Trump’s Department of Homeland Security rescinded DACA protection, all this has become uncertain for DREAMERS. Days later President Trump himself tweeted his support for DACA, and announced: “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do).”  Today, despite much talk, the future of DACA remains in question. We watched Trump’s televised negotiation with Congress on Tuesday only to wonder what the President’s confusingly contradictory statements might mean, whether a hopelessly split Congress can possibly compromise, and how the policy confusion is affecting DREAMERS who are simply trying to live normal lives.  Education Week estimates that about 20,000 DREAMERS are employed today as school teachers.

Then, later on Tuesday night, we learned that a federal judge in San Francisco has blocked the Trump administration’s six-month phase out of DACA that began last September.  Here is Derek Hawkins of the Washington Post: “U.S. District Judge William Alsup… blocked the administration’s attempt to phase out Deferred Action for Childhood Arrivals, the Obama-era program that protects young undocumented immigrants from deportation.  Alsup was tasked with, among other things, determining whether it would serve the public interest to leave DACA in place while litigation over the decision to scrap the program proceeds. On this point, he had an easy answer: Trump himself had expressed support for DACA on Twitter in September, just days after Department of Homeland Security officials rescinded it. ‘Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!'”

The words Hawkins quotes from in Judge Alsup’s order seem to summarize where we are as a country—the new level of uncertainty with which DREAMERS are living—and a new level of dysfunction in the federal government:  “We seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended… For the reasons DACA was instituted and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation.”

Fortunately for DREAMERS, the Constitution provides checks and balances—in this case the judiciary. Hawkins continues his analysis: “In litigation over Trump’s executive actions, no ruling seems to be complete without a section explaining how Trump’s tweets and public statements undercut the administration’s legal arguments… This is new territory for federal judges, according to Niels Frenzen, an immigration law professor at the University of Southern California. ‘We’ve never had a president tweeting like this… You have these extreme public statements that are shedding light on the motivation of the president in regard to why he is directing Cabinet secretaries to engage in these actions. The courts are saying these are fair game.'”

So… DREAMERS can take a deep breath, at least while a legal challenge to the phaseout of DACA moves forward.

Does this mean that Congress will stop negotiating on a way to address the needs of the DREAMERS—that DACA will no longer be a bargaining chip in the contentious battle over the continuing budget resolution that must be passed in the next two weeks to keep the government running?  Does this mean Congress will forget about the 800,000 DREAMERS because Senators and Representatives have so much other chaos to deal with?  Probably. Nobody knows.

And now for low income families and children there is another unknown—this time due to Congress’s own dysfunction and inability to compromise. The Children’s Health Insurance Program (CHIP)—which Congress had allowed to lapse at the end of September—seems to be out of money even though everybody had been told it had been fixed for the moment. In December, when Congress passed an emergency continuing budget resolution, it added a relatively small infusion of cash to protect CHIP—until March when Congress would again try to find a way to keep CHIP alive. Last Friday, Kaiser Health News published this warning: “Some states are facing a mid-January loss of funding for their Children’s Health Insurance Program… despite spending approved by Congress in late December that was expected to keep the program running for three months, federal health officials said Friday. The $2.85 billion was supposed to fund state’s CHIP programs through March 31.  But some states will start running out of money after Jan. 19, according to the Centers for Medicare & Medicaid Services. CMS did not say which states are likely to be affected first. The latest estimates for when federal funding runs out could cause states to soon freeze enrollment and alert parents that the program could soon shut down.  The CHIP program provides health coverage to 9 million children from lower-income households that make too much money to qualify for Medicaid.”

The NY Times editorial board spoke to this issue on Tuesday: “CHIP was created in 1997 and has helped halve the percentage of children who are uninsured. It has been reauthorized by bipartisan majorities of Congress in the past. But Republican leaders in Congress all but abandoned the program last fall and devoted their time to trying to pass an unpopular tax bill that will increase the federal debt by $1.8 trillion over the next decade… By contrast, CHIP costs the federal government roughly $14.5 billion a year, or $145 billion over 10 years. Republicans have held children’s insurance hostage to force Democrats to accept cuts in other programs.”

What has become the norm in Washington—in the Trump administration and in Congress—is dysfunction and rancorous fighting  that makes life more uncertain for America’s most vulnerable families, young people, and children. This kind of uncertainty is a public school problem as well, as 50 million of America’s children—many of them living in poverty and financial insecurity—bring the anxiety they absorb at home with them to school each day.

Trump’s Cancellation of DACA Is Short-Sighted and Morally Reprehensible

President Donald Trump announced on Tuesday that he has cancelled DACA, the Deferred Action for Childhood Arrivals program which has protected young people brought to this country as children, children who, before DACA, had been forced to live in the shadows without any protection against deportation.  The majority of these young people arrived as preschoolers, have grown up in the United States, know no other country, and speak English as their primary language.

I first learned about the need for a DREAM Act ten years ago from a guidance counselor who had been trying to assist the valedictorian at her high school with college admissions.  This counselor had learned that her state barred undocumented adolescents from qualifying for in-state tuition at its state universities and made such students ineligible for college scholarships.

Dale Russakoff profiled the issue again last January in the NY Times Magazine.  Explaining that even President Barack Obama’s DACA program—instituted by executive order in 2012—failed to address the educational obstacles facing undocumented adolescents across many states, Russakoff profiles a student in Georgia, who, “was determined to go to college and medical school and fulfill her parents’ interrupted dream. In her junior year (of high school), Indira began researching college options… She was distressed to discover that Georgia barred undocumented immigrants from attending its top public universities and charged them out-of-state tuition at all others—triple the rate for citizen residents. She then turned to researching financial aid and learned that Congress barred her from accessing federal Pell Grants, loans, scholarships, and work-study jobs—the most common forms of assistance for low-income students.”  After a long struggle, this young woman finally located a path to college in another state and qualified for some financial assistance from a private foundation.

The DREAM Act, (Development, Relief, and Education for Alien Minors), which would have assisted the 800,000 children, adolescents and young adults who were brought to this country as children by their parents, has never passed Congress.  While the DREAM Act was intended to guarantee access to higher education, President Obama’s Deferred Action for Childhood Arrivals program, DACA, provided at least minimal protection: the promise that registered participants would not be deported, the right to hold a job, and the possibility eventually of citizenship.

Earning DACA protection was not easy. In a statement released from Randi Weingarten on Tuesday, the American Federation of Teachers lists the requirements established by President Obama’s executive order for young people to qualify for DACA: have entered the United States before an adolescent’s 16th birthday; pass a stringent background check; meet educational or training criteria; and pay a $495 application fee.  AFT explains: “DACA status is not permanent; it is not a green card or a pathway to citizenship. It’s a temporary protective status renewable every two years. The average current age of DACA recipients is 26; the average age they came to the United States is 4 years old.”

When Attorney General Jeff Sessions announced on Tuesday that DACA will be phased out beginning March 5, 2018, he is quoted by the NY Times , which explains, “he was driven by a concern for ‘the millions of Americans victimized by this unfair system.’  Mr. Sessions said the program had ‘denied jobs to hundreds of thousands of Americans by allowing those same illegal aliens to take those jobs.'”

Economists, however, have been quick to counter Sessions’ argument that DREAMERS are stealing scarce jobs in the U.S. economy.  Here is Nobel Prize winning economist Paul Krugman: “Trump’s decision to kill DACA… is, first and foremost, a moral obscenity: throwing out 800,000 young people who are Americans in every way that matters, who have done nothing wrong, basically for racial reasons.  But it’s also worth noting that Jeff Sessions just tried to sell it with junk economics, claiming that the DREAMERS are taking American jobs.  No, they aren’t…. DACA is very much a boon to the rest of the U.S. population, and killing it will make everyone worse off.”  DREAMERS’ “educational and behavioral profile… doesn’t resemble the average immigrant, let alone the average undocumented immigrant; they look like H-1B visa holders, that is, skilled immigrants we have specifically allowed in because they help the economy.  Beyond that, DREAMERS are young—which means that they help the economy… because they mitigate the economic problems caused by an aging population…. (A)s the population ages, there are fewer working-age members contributing taxes to pay for Social Security and Medicare. A cohort of relatively high-wage, highly motivated people mostly in their 20s, likely to pay lots of taxes for decades, is exactly what the doctor ordered to make that issue less severe… So this… will make everyone worse off.  There is no upside whatever to this cruelty, unless you just want to have fewer people with brown skin and Hispanic surnames around. Which is, of course,what this is really all about.”

Opposition to passage of a DREAM Act represents narrow, fearful and selfish thinking. The idea that life in the United States is a cut-throat competition among our children—that if your kid gets a good education, she might edge mine out of entrance to a particular college or out of a job later in life—represents an extreme form of the ideology of individualism. Educational opportunity and the American Dream are not a zero sum game. People who oppose the DREAM Act also are likely to blame children for the so-called sins of their fathers. The leaders of our nation’s religious communities released a joint statement on Tuesday castigating Trump’s cancellation of DACA on the most basic moral grounds.

Senators Dick Durbin (D-IL) and Lindsey Graham (R-SC) have introduced a bipartisan DREAM Act 2017.  Please contact your U.S. Senators and your Congressional representative and ask them to support this bill, which would reinstate basic protection for DREAMERS from deportation.  The American Federation of Teachers invites you to use AFT’s action alert.

In a New Yorker satire, Eight Hundred Thousand People with Dreams to Be Deported by One with Delusions, Andy Borowitz captures the irony of the President’s stated reason for canceling DACA: “‘The people I am deporting are parasites who have exploited our economy,’ the man, who has declared bankruptcy six times, said.”