Legislation Affecting Undocumented Students

FERPA

FERPA, or the Family Educational Rights and Privacy Act, was passed in 1974 and protects the privacy of students’ personal information and their academic and behavioral records.

One very important implication of FERPA for undocumented students is that any school or district that receives funds from the US Department of Education cannot inquire into the immigration or citizenship status of a student or parent as a means of establishing the student’s residency in the district.

The U.S. Department of Education states on their website: “Immigration or citizenship status is not relevant to establishing residency in the district, and inquiring about it in the context of establishing residency is unnecessary and may have a chilling effect on student enrollment.”

The effect of this law is that students can enroll in public K-12 schools without having to reveal their immigration status to school authorities, and therefore can attend school without fear that that information might be used as the basis for discrimination, intimidation, or deportation.

Plyler vs. Doe

A 1975 Texas law allowed local public school districts to deny enrollment to students who could not prove that they were born or legally residing in the United States, and shortly thereafter, one school district began charging tuition for those students not “legally admitted” to attend their public schools.

Affected families filed a case that worked its way to the Supreme Court, and, in 1982, the Court ruled that the Texas law was unconstitutional because it violated the Equal Protection Clause of the 14th Amendment. It also found that the law was "directed against children, and impose[d] its discriminatory burden on the basis of a legal characteristic over which children can have little control.” It further stated that denying these children a proper education would likely contribute to "the creation and perpetuation of a subclass within our boundaries."

The effect of this Supreme Court ruling is that no public K-12 school can deny a child access to an education based on immigration status. This ruling does not, however, address the issue of access to postsecondary institutions.

Illegal Immigration Reform and Immigrant Responsibility (IIRIRA) Act of 1996

IIRIRA vastly changed the immigration laws of the United States. There are hundreds of provisions, but some key implications include: increased border security and enforcement; a longer, more difficult process for undocumented immigrants to legalize their status; a lowered threshold for offenses that would trigger deportation; and more power given to INS (Immigration and Naturalization Services, now Immigration and Customs Enforcement, or “ICE”) to determine an immigrant’s lawful admissibility into the U.S.—power that used to be reserved for the court system. IIRIRA also permits the U.S. Attorney General to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions. So far, only a few states have entered into these agreements.

State Laws and Higher Education

While two states (Alabama and South Carolina) actually ban enrollment of undocumented students at their public universities, the majority of states allow undocumented students to enroll in their state schools, but then charge them out-of-state tuition rates. Four states have explicitly denied in-state tuition rates to undocumented residents through legislative action (GA, IN, MO, AZ).

However, as of 2015, there were 20 states that either through state law or through public university system polices allow undocumented residents to pay in-state rates. Five of the states that have laws on the books for tuition equity even offer financial aid through state funds as undocumented students are ineligible for federal loans and grants: California, New Mexico, Minnesota, Texas, and Washington.

These laws do not extend beyond public universities; every private university, like Marquette, creates its own policy regarding admission and eligibility for internal financial assistance for undocumented students.

DACA

In 2012, President Obama announced a presidential directive known as Deferred Action for Childhood Arrivals, or DACA, in which he exercised his prosecutorial discretion to delay deportation for the young undocumented people who were brought to the United States at a young age. Individuals may apply for DACA if they:

  • Were under the age of 31 as of June 15, 2012;
  • Came to the United States before reaching their 16th birthday;
  • Have continuously resided in the United States since June 15, 2007, up to the present time;
  • Were physically present in the United States on June 15, 2012, and at the time of making their request for consideration of deferred action with USCIS;
  • Had no lawful status on June 15, 2012;
  • Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  • Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Benefits of DACA include:

  • The ability to apply for a drivers’ license (which is renewable as long as their DACA status is current);
  • A social security card with a number that can be used for work authorization purposes only;
  • A temporary “reprieve” from deportation; and
  • The possibility of obtaining “advance parole”, or permission from the federal government to exit and re-enter the US lawfully during a specified period of time.

You can find more information about DACA and how to apply or renew on the U.S. Immigration page.

This educators’ toolkit provides useful tips for working with students who are trying to obtain DACA.

Post-Election Considerations

It is a time of great uncertainty for undocumented youth. This site provides important considerations and will offer updates as changes affecting undocumented students unfold.