October 3, 2008

California Needs “Dream Act” Now More Than Ever With Recent Court Decision

By Peter Schrag

The three-judge decision earlier this month that jeopardizes tuition breaks for thousands of California’s illegal alien college students may be legally correct. But it’s likely to lead to a self-defeating economic strategy the nation will regret.

The ruling, by members of the 3rd District Court of Appeal in Sacramento, upholds the contention of out-of-state students and their parents that under federal law, the University of California, California State University and the California community colleges may not give illegal alien students benefits they don’t grant citizens and legal residents from other states. They call it an “illegal alien tuition scheme.” UC and its co-defendants maintain that California’s tuition policy, enacted in 2001, doesn’t discriminate. It simply sets the same in-state fees for all California residents who graduated from a California high school and attended one the prior three years, regardless of their immigration status.

The judges weren’t buying it. The policy, they said, was intended to benefit illegal aliens, despite federal law that prohibits such benefits.

“The three-year attendance requirement at a California high school,” the court said, “is a surrogate residence requirement.” The California law’s requirement that the illegal alien student “will file an application (for legalization) as soon as he or she is eligible to do so,” the judges said, is meaningless.

Since in-state fees are far lower than those out-of-state students must pay, eliminating the break would make higher education nearly unattainable for many California students. More than 15,000 illegal alien community college students and several thousand more at the four-year institutions pay in-state tuition.

At UC, non-residents pay $20,600 a year above the $8,100 charged residents. At the community colleges, there’s an eightfold difference – $160 a unit as against $20 a unit for in-state students, bringing the annual fees to $4,800 rather than the $600 that resident full-time students pay. That’s in addition to the cost of books, transportation and other expenses that usually exceed in-state fees.

In effect, all three segments, but UC particularly, treat out-of-state students as profit centers, as do virtually all public universities in other states. If the appellate court’s decision is upheld, the colleges would have little choice but to charge illegal alien students the higher fees charged out-of-state students.

Which was Congress’ objective when it passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which prohibits fee breaks for illegal immigrants.

Texas, New York, Washington, Illinois, Kansas, Nebraska, New Mexico and Utah have had in-state tuition laws similar to California’s. Some, like Oklahoma, have reversed course; South Carolina recently banned illegal immigrants from its public institutions altogether. In Kansas last year, where the tuition policy was challenged on grounds similar to those in the California case, a federal appellate court threw the challenge out.

The California case, which is being appealed, has a way to go before the courts are done with it. But in a state struggling to keep students in school and to raise their achievement, any cloud on an already uncertain future is yet another invitation to give up and drop out.

For some, including the congressional majority that passed the ban on fee breaks for illegal students and the immigration restriction groups backing the California suit, that’s all good. Maybe it will drive some illegal aliens back to where they came from.

More likely, it will drive many more out on the streets, adding yet another time bomb of dependency, hopelessness and resentment that most of us would rather not deal with.

Since many illegal students were brought to this country by their parents at an early age, don’t know any other country or language, were educated in this country and have no desire to go back, they are for most purposes Americans. We have a huge investment in them. Do we now convert that potentially productive investment into a liability? Should they be punished for the acts of their parents in bringing them here? Last year, a bipartisan group of senators, among them California’s Dianne Feinstein, made another attempt to pass the Dream Act, which would have put many students on the track to legalization and would have repealed the federal ban on tuition breaks for illegal immigrants.

The same forces – including the Federation for American Immigration Reform, NumbersUSA and conservative radio talkers – that drove Congress to reject immigration reform and pushed the ban on in-state tuition helped kill the Dream Act.

If the California court’s decision is upheld, there will be suits in other states and more pressure to slam the college doors on illegal immigrant students elsewhere. At a time when millions of boomers are retiring and the nation badly needs skilled workers to replace them, slamming the door on ambitious, potentially productive people is crazy. The nation needs the Dream Act more than ever.

Peter Schrag is the former editorial page editor of the Sacramento Bee. This article is published with his permission.

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