DACA Once Again Thrown Out by Federal Judge: Hundreds of Thousands of DREAMers Fear for Their Future

The need to protect DREAMers is an old and still urgent issue. DREAMers are adolescents and young adults who remain undocumented and were brought here as very young children by their non-citizen parents. They are members of every community; they attend our public schools; and in many cases, once they have grown up, they are teaching in our schools or working in our communities.  In most instances the United States has been home to these young people during almost their entire lives. English is likely to be their primary language, and they may not know anyone in their parents’ home country. But they remain undocumented and, these days, threatened with deportation if DACA, the program President Obama created to protect them, is eliminated.

These young people are called DREAMers because the protection they and their advocates have sought has been called the DREAM Act (Development, Relief, and Education for Alien Minors Act).  A 1982 U.S. Supreme Court decision in Plyler v. Doe protects their right to a public school education despite that they are not U.S. citizens, but until President Obama created DACA (Deferred Action for Childhood Arrivals) by executive order, they were left vulnerable. DACA was a temporary program intended to at least protect these young people’s right to work, to apply for a driver’s license and to avoid deportation. Some states still deny DREAMers access to in-state tuition at public colleges or to publicly funded scholarships.

The NY Times‘ Miriam Jordan explains who has been eligible for DACA  protection: “To qualify for DACA, applicants must have entered the United States before age 16, lived in the country continuously since June 2007, finished high school or enlisted in the military, and have a clean criminal record.”  Approximately 700,000 young people are currently protected.

A week ago, a federal judge in Texas ruled against President Obama’s DACA program, letting current protection stand for young people already in enrolled in the program, but banning the Department of Homeland Security from awarding DACA protection for any new applicants, including a huge backlog of applications already filed that the Department of Homeland Security has allowed to build up during this COVID-19 year.

Jordan reports: “A federal judge in Texas on Friday ruled unlawful a program that has shielded hundreds of thousands of undocumented young adults from deportation, throwing into question yet again the fate of immigrants known as DREAMers. The judge, Andrew S. Hanen of the United States District Court in Houston, said President Barack Obama exceeded his authority when he created the program… by executive action in 2012.  But the judge wrote that the current program recipients would not be immediately affected, and that the federal government should not ‘take any immigration, deportation or criminal action’ against them that it ‘would not otherwise take.’  The Department of Homeland Security may continue to accept new applications but is temporarily prohibited from approving them…”

For NPR, Rachel Treisman reports that in 2018, another lawsuit threatened the DACA program; the same judge, Andrew S. Hanen ruled against the program; and, in 2020, the program was upheld by the U.S. Supreme Court.  Now, “Some two years later, following the Supreme Court ruling and a series of motions and arguments in the Texas case, Hanen directed the involved parties to bring their claims before him again.”

CNN‘s Elie Honig explains the difference between the 2018 and the current case: “Just last year, DACA survived an existential legal challenge when the Supreme Court, by a five to four majority, rejected the Trump administration’s effort to repeal the Obama-era executive action that created the program. The Court ruled that while one president generally has broad authority to modify or repeal the executive action of a prior president, such action still must comply with certain administrative procedures. The Court found the Trump administration failed to follow these guidelines because it never offered a ‘reasoned explanation for its action’… (T)he… new case involves the underlying constitutionality of DACA itself. Judge Hanen ruled that DACA is unconstitutional because it was created by executive action rather than legislation.”

In the current case, the NY Times‘ Jordan reports, “Texas led the effort to terminate the program, and was joined by Alabama, Arkansas, Kansas, Louisiana, Mississippi, Nebraska, South Carolina and West Virginia.  Officials in those states had argued that the program was improperly adopted and left them with the burden of paying for education, health care and other benefits for immigrants who remained in the country under DACA’s protections.”

Judge Hanen’s decision last week will likely be appealed. Treisman reports for NPR, “One day after a federal district judge in Texas ruled against the Deferred Action for Childhood Arrivals program, President Biden said the Department of Justice intends to appeal the decision.”

The case could be overturned by a higher court on appeal or could become irrelevant if Congress were to agree on legislation to protect the rights of DREAMers. The National Immigration Law Center responded to last week’s ruling by federal Judge Hanen by pointing out that, “DACA is a hugely successful and transformative policy with overwhelming public support.” And despite dysfunction in a polarized Congress, it is possible that some agreement can be reached on DACA: “The House of Representatives already passed the bipartisan Dream and Promise Act in March, and this week Senate leadership included a pathway to citizenship as part of its budget resolution.”

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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.

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.”