Access and the Undocumented Student

The passage in Arizona last November of Proposition 200 energized the debate over the extent to which government resources should be available to undocumented citizens.

As previously reported, the Arizona Attorney General opined that, by their terms, the laws enacted as a result of Prop. 200 are narrow in scope, and do not have the effect of restricting access by such individuals to public education. (See In Brief, Fall 2004)

Should either the Arizona legislature or the voters ultimately seek to limit that access, however, the US Constitution will necessarily define the limits of such a measure.

Any proposal to bar the children of undocumented persons from public K-12 institutions would no doubt violate the Constitution's Fourteenth Amendment under the US Supreme Court's 5-4 ruling in Plyler v. Doe.

That decision struck down a Texas statute that required the withholding of state funds from local school districts for education of children who were not "legally admitted" into the US. Speaking for the majority, Justice Brennan observed that, while public education is not a fundamental right under the Constitution, it "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."

While Plyer applies to state efforts to bar undocumented students from public elementary and secondary institutions, courts and legal scholars have deemed it inapplicable to public postsecondary education.

Recently, federal courts in California and Virginia addressed state measures expressly intended to prevent undocumented citizens from being admitted to public colleges and universities. Those challenges yielded wholly opposite results.

In 1997, California plaintiffs argued that the state's Proposition 187-which purported to deny public postsecondary education to anyone not "authorized under federal law to be present in the United States"-violated the Supremacy Clause of the US Constitution.

A federal court agreed, holding that Congress had clearly intended to "occupy this field" of immigration law. Regulating immigration, according to the court, is exclusively within the power of the government in Washington, and not that of the states.

Seven years later, residents of Virginia leveled a similar claim against policies various public colleges and universities in that state had adopted. The policies-urged by Virginia's attorney general-suggested that those schools report to federal authorities any "student on campus . . . not lawfully present in the United States."

According to the federal court in Virginia, however, the policies did not violate the Supremacy Clause. Their intent, the court reasoned, was not to change federal standards as to whether an individual is present in the country illegally.

Rather, the court concluded that the policies merely established the basis of the institutions' admissions standards, and did not invade Congress's authority over immigration law.

Published in the Summer 2005 Edition of In Brief