GLEN COVE, NY — Federal law as invented by the
courts requires that elementary and high school education be offered
to children who are in the United States without a legal basis. This
policy has raised the question of how these children should be treated
when they attend public universities. California, New Mexico, and Texas
at times treat them as residents. Arizona, in contrast, always treats
them as non-residents.
In Texas, for example, such students pay the so-called “resident” tuition
if they have spent at least three of their four years of high school
in Texas or a neighboring state. The resident tuition is considerably
lower than the tuition Texas charges hippies from Brookline, Scarsdale,
Chevy Chase, Cherry Hill, New Trier, or Grosse Pointe who come to party
at a state university for four years. The reason for this distinction
is that Texan residents have typically been paying taxes (at least
sales taxes) that help support the state universities, while the out-of-state
students often have paid nothing to Texas and should bear a greater
part of the expense of their education.
Two conflicting considerations become immediately obvious. On the
one hand, it is not just to charge someone who has lived in Texas for
the past 10 or 15 years the same tuition rate as someone who has never
set foot in the state. On the other hand, tuition should be neither
a reward for illegal immigration nor an incentive to engage in it.
Texas and Arizona have clearly dealt with these competing concerns
We can exclude the idea that no child of illegal immigrants should
ever benefit from a state university. We can only imagine how the alumni
of the University of Texas would react if the potential star running
back of the Longhorns were denied his football scholarship because
his parents came to Texas illegally.
Does in-state tuition act as an incentive to illegal immigration?
It probably does in California, but it is not clear that it does in
Texas. It is not probable that people come to Texas in the hope that,
three years later, their children would get the lower rather than the
higher college tuition bill. Texas chose three years. Some states might
find five or six years a better precaution against college tuition
being an incentive to illegal immigration. Still other states might
find an intermediate tuition level to be the proper precaution.
Does in-state tuition reward illegal immigration? In a small number
of cases in which the parents pay the tuition, it clearly does. In
most cases, however, the tuition is paid by student loans. In those
cases, the question is more complicated. It depends in part on the
age at which the children were brought to the United States. If the
children were below the age of reason, typically around seven or eight
years of age, they have no moral responsibility for being in the United
States illegally. The conduct of children below the age of criminal
responsibility or the minimum age for emancipation is morally excused
because of their duty to obey their parents.
It does not seem proper to punish children below the age of 16 for
being here illegally. The requirement of three continuous years of
Texas high school seems one acceptable means of keeping the tuition
category from rewarding the guilty, although a maximum age limit of
migration to the United States might be an alternative.
Clearly, more than one formula to determine which students should
get in-state tuition is morally acceptable. How best to deal with the
alternatives is a policy question that should be left to each state.
That is the American way.
The Confederate Lawyer column is copyright © 2011
by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com.
All rights reserved.
Charles G. Mills is the Judge Advocate or general counsel for the
New York State American Legion. He has forty years of experience in
many trial and appellate courts and has published several articles
about the law.
See his biographical sketch and additional columns here.
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