Illegal immigration into the United States from neighboring countries, mainly Mexico, has caused public universities and colleges to decide whether students illegally residing within their state borders should be treated as in-state residents for tuition purposes. Currently, undocumented aliens cannot be abridged of their right to attend primary and secondary schools.1 However, after completing their education at these levels, federal policies limit their right to financial assistance and their right to qualify for state college and university benefits.2
In response to early increases in immigration, federal laws have established guidelines for admitting foreigners into the United States for business, social, and educational purposes.3 Several immigration statutes outline the entrance requirements for nonimmigrant workers and students.4 To regulate foreigners choosing to enter the United States through non-designated immigration channels,5 Congress enacted two federal mandates: the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA)6 and the Illegal Immigrant Reform and Immigration Responsibility Act (IIRIRA).7 This legislation limits the public benefits that may be afforded to illegal aliens.
The Supreme Court has already addressed the constitutionality of state policies affecting illegal aliens and education, striking down policies stripping illegal aliens of basic protections and needs.8 While present in the United States, illegal aliens receive protection of their fundamental rights, regardless of their legal status.9 The Supreme Court, however, has declined to classify education as a fundamental right10 or to label undocumented alien adults in the United States with a suspect classification.11 Therefore, a person who chooses to enter this country illegally will only receive protection for their basic needs that are necessary to take part in our society.12
Because there is no explicit answer as to whether illegal alien adults are entitled to higher education, courts rely on current federal mandates and Supreme Court precedent to decipher the relationship between U. S . immigration policies and undocumented aliens' rights. The precedent clearly distinguishes between U.S. citizens, nonimmigrants, legal immigrants, and undocumented aliens in affording benefits and rights.13 Political pressure is mounting to change the process for illegal aliens attempting to receive financial assistance for higher education institutions.14 These political forces are attempting to coerce Congress and the Court to disregard sound public policy initiatives and laws requiring the use of proper immigration channels.15 Some proposed initiatives have even suggested removing the federal government from determining the immigration status of aliens by awarding conditional residency to illegal aliens who are admitted to a public university.16
Several states differentiate between in-state and out-of-state residents for tuition purposes.17 In the current higher education system, the obstacles faced by undocumented aliens who have graduated from high school should be no different than those faced by legal residents who want to attend a college outside of the state where they have their residential status. In addition, foreign students who have legally obtained a visa generally pay a higher rate of tuition to attend a public college or university.18 This discrepancy gives illegal aliens an advantage over nonimmigrants who follow the legally prescribed guidelines to enter the United States.19
Many critics argue that tuition restrictions make it virtually impossible for undocumented aliens to attend higher education institutions,20 but this is simply not the case.21 Most public state universities admit undocumented alien students, but some refrain from providing in-state tuition rates for these individuals based on their understanding of IIRIRA.22 These students are not barred from attending a higher education institution; however, they must pay the same out-of-state tuition rate that nonresident students pay to attend these institutions. …