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As early as 1982, the U.S. Supreme Court held that:
• Illegal aliens are included under the protections provided by the equal protection clause of the 14th Amendment to the U.S. Constitution.
• The discrimination inherent in a Texas statute, which withheld state education funding from school districts for illegal immigrants, and which allowed school districts to deny enrollment to such “illegals,” was not “rational,” unless it furthered a substantial state goal.
• The “illegal” status of the children in question, standing alone, was an insubstantial reason for denying them the same educational opportunities as other children in their communities.
• No national policy exists for denying such children an elementary education.
• The state's rationale—preservation of finite funding—was insufficient to sustain the statute against constitutional challenge.
[Plyler v. Doe, 457 U.S. 202 (U.S. 1982), accord Toll v. Moreno, 458 U.S. 1 (1982) (University of Maryland's policy of denying treaty organization aliens the opportunity to pay reduced, in-state tuition constituted a violation of the Supremacy Clause)]
While the right to attend public K-12 schools remains intact, in reaction to these decisions, the Congress passed statutes aimed at preventing these same students from advancing to public institutions of higher education. Meanwhile some seven states passed statutes of their own, permitting in-state tuition advantages for their illegal-alien residents. Out-state students, subject to much higher rates for attending the same state schools, have been challenging these statutes ever since. One example of such a challenge is Day v. Sebelius. [376 F. Supp. 2d 1022 (D. Kan., 2005)]
In Toll v. Moreno [458 U.S. 1 (U.S. 1982)], the Supreme Court declared that a Maryland statute, which denied residency status to non-immigrant aliens, thus also denying them the opportunity to pay the reduced rate at the University of Maryland, violated the supremacy clause of the Constitution.
Two statutes enacted within weeks of one another in 1996 are widely viewed as being, among other things, responses to the Supreme Court's 1982 rulings, which afforded the children of illegal aliens the right to attend public schools and required states to provide non-immigrant alien residents the same reduced in-state tuition rates available to resident citizens. These two statutes are:
1. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 [H.R. 3734], and
2. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) [Pub. L. No. 104-208]. Specifically, this statute states, “Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.” [8 U.S.C. § 1623] Note that this provision did not entirely overrule the Supreme Court's Toll decision, which in fact dealt with an alien presenting the United States under a non-immigrant visa, but the statute does limit the reach of Toll to the extent that it has been interpreted to afford the same benefits to illegal aliens.
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