In the monthly "Ethical Inquiry" series, we examine ethical questions, highlighting a broad array of opinion from journalism, academia, and advocacy organizations. Our intent is to illuminate and explore the complexity of some of the most vexing ethical questions of our time.

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Ethical Inquiry: April 2010


Should Undocumented Students be Eligible for In-State Tuition Rates?

Update
As of November, 2012, the Massachusetts Governor Deval Patrick issued a directive to the state Board of Higher Education stipulating that undocumented students be charged at the in-state tuition rate. The method of implementation and the future evolution of the directive remains to be seen. To read more about the issue, start here.

Lawmakers and voters in Massachusetts are currently debating the question of whether immigrant students who are state residents and enrolled in Massachusetts state public colleges and universities should be allowed to pay the discounted in-state tuition rates, or if they should continue to be charged the out-of-state price.

There are no laws barring anyone from applying to or enrolling in these schools, but the amount a student will pay in tuition fees depends upon their residency and documentation status. Massachusetts residents who are American citizens or in possession of a green card are charged rates ranging from, on average, $4,305 to $9,704 per year for state community colleges and universities, respectively. Comparatively, out-of-state tuition costs  (which also apply to international students) range from $10,811 to $22,157.

If passed, the In-State Tuition Bill (House 1175 [PDF]/Senate 603 [PDF]) would allow any resident who has lived in Massachusetts for at least three years, who has graduated from a Massachusetts high school, and (if not an officially-documented resident) who vows to pursue documentation as soon as he or she is able, to pay in-state tuition rates at the Commonwealth’s public colleges and universities.Massachusetts State House

Despite being a relatively small bill, estimated to immediately apply to only 400 to 600 Massachusetts residents [PDF], it has elicited a firestorm of controversy over the six years since it was first proposed to the legislature. In total, 65,000 undocumented students graduate from high school each year in the U.S. [PDF] ("In-State Tuition for Undocumented Immigrants: States’ Rights and Educational Opportunity," a 2007 policy brief from the American Association of State Colleges and Universities, by Alene Russell), many of whom cannot afford to pay the high out-of-state tuition costs.

Proponents of the bill, such as the Massachusetts Taxpayers Foundation, point towards a possible $2.5 million of revenue [PDF] generated for the state through the passing of this legislation, due to increased revenue through increased full in-state cost tuition payers. Increased revenue is an attractive feature in these times of extreme budget cuts.

But the question remains: is passing this bill the right thing to do?

The Case of In-State Tuition in Texas

Similar debates have taken place in many other states, resulting in the passage of legislation similar to that proposed by the Massachusetts Legislature in a total of eleven states.

Texas State Capitol BuildingTexas was the first to address the issue, signing an in-state tuition bill into law in 2001. Notably, the tuition policy in Texas is much more generous than the Massachusetts proposal, offering scholarships to undocumented immigrant students and even recruiting across the border to bring Mexican students into Texas schools.

Critics of the policy argue that undocumented immigrants and Mexican citizens are flooding the Texas school system — a major concern echoed in the Massachusetts debate.

In the fall semester of 2009, more than 12,000 students were known to have benefited from the Texas in-state tuition policy, making up about 1 percent of all college students in the state.

Critics in Texas worry that this 1 percent will be unable to find legal employment in professions that justify their higher education after graduation, in light of their undocumented status in the eyes of federal immigration law – an equally applicable concern in Massachusetts.

The hope of these newly-degreed immigrants is that Congress will pass the Development, Relief and Education for Alien Minors or "DREAM" Act, a piece of legislation that would provide a pathway to citizenship for American-educated immigrant minors. The first version of this bill was introduced to Congress in 2001 and it has come before both the House and the Senate almost every year since. Currently, the DREAM Act is co-sponsored by 108 representatives and 34 senators.

Rewarding Lawbreakers? A Problem of Fairness

A major concern of opponents to the Massachusetts in-state tuition bill is whether it is fair to allow students who are in violation of established United States immigration law, to receive a benefit from the state. In a 2007 opinion article published in The Examiner, Representative Steve King (R-IA) illustrated this issue with an analogy to kindergarten children waiting in line for snack time:

"'Children, get in line. Wait your turn,' are lessons learned on the first day. Now imagine the reaction if, instead, the teachers said, 'Don’t cut in line,' and went on to say, 'You can keep your treats while you return to the end of the line to wait your turn.'

"Who would respect a teacher who claimed to have rules but rewarded the rule-breakers? The classroom environment would deteriorate into anarchy. The same is true when it comes to immigration policy."

In other words, undocumented immigrants should follow the legal process to obtains citizenship in order to receive the same benefits as citizens.

The immigration system in the United States is a complicated one, however, full of waiting periods and visa expiration dates that can result in the deportation or loss of documentation of immigrants pursuing legal compliance. As illustrated in this diagram, legal immigration diagram from Reason Magazinedeveloped by the Reason Foundation in collaboration with the National Foundation for American Policy, current immigration law is constructed in a confusing manner that does not encourage compliance or understanding.

Additionally, there are currently no legal provisions for an immigrant minor, brought into the United States by his or her parents, to apply for documentation or citizenship. Many undocumented immigrant children had no hand in their situation. Arriving in the U.S. as minors, some were brought as infants. Regardless of how old a child is when he or she immigrates, the child’s legal status is entirely dependent upon his or her guardian’s ability to navigate immigration law. Should these children be denied opportunities because of choices they did not make?

It is for this reason that some immigrant students do not know that they are undocumented or understand what that means until they attempt to apply to college after high school and find that they do not have a social security number or a visa. And for those in the process of applying for permanent residency or here under temporary protected status, the length of their stay in this country is uncertain. In an interview with The Cape Cod Times, Cape Cod Community College president Kathleen Schatzberg sympathized with the plight of immigrant students in Massachusetts.

"These are young people who came here at an age when they didn't make the decision," she said. "I recognize that [the larger solution to the issue lies with the federal government], but in the meantime we've got these young people who are capable and talented. They're Americans for all intents and purposes."

Who is Responsible for the Education of Immigrants in the United States?

In 1982 the United States Supreme Court struck down a Texas statute denying public education funding for undocumented immigrant students (Plyler v. Doe). In forming the majority opinion, Justice William J. Brennan wrote that such laws impose a "discriminatory burden on the basis of a legal characteristic over which children can have little control."

"In sum," the opinion continues, "Education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests."

This decision, however, is limited to the education of children from kindergarten to the 12th grade. While this has enabled immigrant minors to obtain an education through the high school level, Justice Brennan’s reasoning is not applied after that point.

Framingham State CollegeSince a college degree is not provided for citizens by the state and is not compulsory, unlike primary and secondary education, it would follow that state responsibility for scholastic education ends after the 12th grade. However, the immigrant students are not asking for a free education—by all accounts, they will pay more than most of their peers in Massachusetts by meeting the in-state tuition alone without the benefit of state grants or loans. What they request is that the same residency benefits be applied to them as they are to their citizen peers.

A 2007 joint research report, “Reconnecting Massachusetts Gateway Cities: Lessons Learned and an Agenda for Renewal,” [PDF] prepared by MassINC and The Brooking Institution found that, analyzing economic trends over the past two decades, the Massachusetts economy is increasingly turning to “high-value, high-paying, knowledge-based industries.” While this has many financial and social benefits for the state, it does indicate that having a college education is necessary to be competitive in this job market.

Returning to the words of Justice Brennan, might charging undocumented students the more costly out-of-state tuition be considered a "discriminatory burden on the basis of a legal characteristic over which children can have little control”?University of Massachusetts Dartmouth campus

Diverting Resources from Taxpayers?


Concerned that the government is not only failing to enforce its own laws with regards to illegal immigration but also rewarding offenders through generous amnesty policies, opponents of the in-state tuition bill feel that public resources are being diverted into programs catering to foreigners.

Among some citizens, there is a sense of being neglected by the government for which they have voted and support through taxes. If undocumented immigrants do not pay taxes and are a drain on public funding, policies that might encourage increased illegal immigration seem irrational.



In fact, counter to popular perception, on the federal level, roughly 8 million of the nation's 12 million undocumented immigrants pay taxes through Internal Revenue Service-issued tax identification numbers.

Without Social Security numbers, however, they are unable to reap the benefits of Social Security or Medicare. In a 1997 National Research Council report, "The New Americans: Economic, Demographic, and Fiscal Effects of Immigration," it was estimated that the average immigrant pays $105,000 more than he or she receives from the benefits of taxes. On the state level, almost all undocumented immigrants pay taxes in some form such as sales, consumption, or rent taxes. A 2005 study by the Immigrant Learning Center, "Massachusetts Immigrants by the Numbers: Demographic Characteristics and Economic Footprint," found that 16.4 percent of all taxpayers in Massachusetts were immigrants of all documentation statuses despite the fact that immigrants only make up 14.1 percent of the total state population.

Considering the facts about undocumented immigrants and taxes, the fairness issue takes on a new face. Is it fair of the government to accept money through taxes and bar certain taxpayers from their benefits? The justification for charging Massachusetts residents a lower rate for tuition at state schools is that they already support these institutions through taxes.

It would follow that any Massachusetts taxpayer could reap that benefit, but as the law now stands the qualifying factor for paying in-state tuition is documentation and residency, rather than taxpaying status.

Conclusion

As the 2010 Massachusetts legislative session nears its end, there has been significant pessimism concerning the In-State Tuition Bill’s chances of passing this time around. Governor Deval Patrick, who has expressed support for the issue in the past, has been quoted  saying the in-state tuition bill “isn’t going anywhere” this session. Despite the negative prospects, immigrant student activists are confident that reform—whether it occurs on the state or the federal level, will eventually come to pass. (For more on immigrant student activism in Massachusetts see the Student Immigrant Movement website.)

Opponents of immigration reform, on the other hand, have seen a number of previous successes in their opposition to legislation such as the In-State Tuition Bill and the Federal DREAM Act. Motivated by concerns about fairness and justice, citizens such as Monique Thibodeaux (in an interview with The New York Times in 2007) are becoming increasingly active and politically vocal in order to uphold their beliefs. Speaking about the 2007 attempt to pass the DREAM Act and her decision to become involved on the grassroots level, Ms. Thibodeaux declared, “In my heart I knew it was wrong for our country.”

Whether immigrants will see the reforms some seek, or whether the requirements of the immigration system will be made more stringent remains to be seen.

Suggestions for additional content that looks at the ethical issues surrounding immigration?  Let us know:

This inquiry was researched and prepared by Vanessa Kerr '11 and Morgan Manley '11, students in the newly-created Legal Studies course "Advocacy for Policy Change" (LGLS 161b), taught by Professor Melissa Stimell. The course is the centerpiece of a new initiative launched by the Ethics Center designed to encourage citizens to bring moral and ethical insights to the process of making and revising laws. The Advocacy for Policy Change initiative is supported by generous multi-year commitments from Center International Advisory Board member Norbert Weissberg and his wife, former Board member Judith Schneider.