The DREAM Act and the Right to Equal Educational Opportunity: An Analysis of U.S. and International Human Rights Frameworks as They Relate to Education Rights

By Feasley, Ashley | St. Thomas Law Review, Fall 2011 | Go to article overview

The DREAM Act and the Right to Equal Educational Opportunity: An Analysis of U.S. and International Human Rights Frameworks as They Relate to Education Rights


Feasley, Ashley, St. Thomas Law Review


  I. Introduction
 II. The DREAM ACT of 2011
     1. Legislative History of DREAM Act
     2. Provisions of the 2011 DREAM Act
     3. States' Response to the DREAM Act
        A. New York and California Dream Acts
        B. The Beason-Hammon Alabama Taxpayer and Citizen
           Protection Act
III. Overview of Education Law in the U.S
     1. The U.S. Does Not Guarantee a Fundamental Right to
        Education
     2. Plyler: Striking Down Discrimination of Undocumented
        Students
     3. After Plyler: Papasan and Back-Tracking
 IV. Application of U.S. Constitutional Framework to the DREAM Act
     1. Papasan's "Minimally Adequate" Standard is Inadequate
     2. Plyler's Relevance to the DREAM Act
     3. Denying Undocumented Students Equal Educational
        Opportunities in the Public School System and the Workforce
        A. Linguistic Barriers
        B. Cost Barriers
     4. Is Denying Higher Education Opportunities Denying an
        Opportunity to Participate in Society?
  V. The Intersection of Human Rights Law and U.S. Law as Related to
     Education Rights and the DREAM Act
 VI. International Human Rights Framework
     1. History of UDHR, ICCPR, ICESCR
     2. Protection of Children within the UDHR, ICCPR, ICESCR
     3. Convention on the Rights of the Child
VII. Right to Education Under Human Rights Framework
     1. Right to Education Under UDHR, ICCPR, ICESCR
     2. Right to Education Under the CRC
VIII. Applicability of International Human Rights Law Framework to the
DREAM Act
     1. U.S.'s Non-Ratification of the CRC and ICESCR
     2. U.S. Responsibilities under the UDHR and ICCPR
     3. The U.S.'s Discrimination on the Basis of National Origin
 IX. Conclusion

I. INTRODUCTION

   Over the past 14 years, I've graduated from high school and college
   and built a career as a journalist, interviewing some of the most
   famous people in the country. On the surface, I've created a good
   life. I've lived the American dream. But I am still an undocumented
   immigrant. And that means living a different kind of reality. It
   means going about my day in fear of being found out. (2)

The story of the Pulitzer-Prize winning journalist and undocumented immigrant, Jose Antonio Vargas, gives a face to the controversial and political debate about the educational rights of undocumented children who come as minors to live illegally in the U.S. with their parents. These undocumented children, approximately 65,000, (3) grow up as socially and culturally American as the American citizen children they sit next to in school. However, due to the undocumented and illegal status of these children, their future opportunities are much bleaker than their American citizen classmates. Under the current U.S. immigration laws, undocumented children face deportation and are frequently denied access to higher education, either through state legislation that prohibits their enrollment into college in their home state, or through the exorbitant costs for tuition they must pay, because they are denied access to federal aid and loans.

In 2001, American legislators introduced a bill called the Development, Relief, and Education for Alien Minors ("DREAM") Act. (4) The DREAM Act has never been made law and has been re-introduced in almost every subsequent federal legislative session. (5) The DREAM Act, as it stands today, would provide conditional permanent residency to certain illegal alien applicants who graduate from U.S. high schools, are of good moral character, arrived in the U.S. illegally as minors, and have been residing in the U.S. continuously for at least five (5) years prior to the bill's enactment. (6) The reaction to the proposed DREAM Act has been divisive and highly-politicized. (7)

Failure to pass a version of the DREAM Act at the federal level has opened the door for many state legislatures to address the issue of undocumented students and their access to higher education on a state-by-state basis.

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The DREAM Act and the Right to Equal Educational Opportunity: An Analysis of U.S. and International Human Rights Frameworks as They Relate to Education Rights
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