Proposed Bill in Kentucky would bar undocumented students from attending public colleges and universities

A bill filed for the upcoming session of the Kentucky legislature would deny undocumented students admission to public postsecondary institutions.  The issue of permitting undocumented students to enroll at public colleges and universities has resulted in national debate and in pointed conflicts in several states.  Some states, such as California, have opted to allow admission and to permit qualifying undocumented students to pay in-state tuition.  Recently, in Martinez v. Regents of the University of California, the California Supreme Court held that the state’s policy did not violate federal law.  Other states prohibit undocumented students from receiving in-state tuition rates.  The proposed legislation in Kentucky would follow the approach taken in South Carolina and ban enrollment by undocumented students.  Federal legislation, the DREAM Act, to permit undocumented students a path to legal status through enrollment in postsecondary education or enlistment in the military has failed to gain traction in Congress for several years.

 In Plyler v. Doe, 457 U.S. 202 (1982), the U.S. Supreme Court held that a state could not deny a free public elementary or secondary education to undocumented students, but the decision did not apply to higher education.  Thus, a sharp legal contrast exists for undocumented students when it comes to access to higher education in comparison to elementary and secondary educational opportunities.  From my point of view, the proposed legislation in Kentucky represents ill-conceived policy.  Immigration policy in the United States is certainly in need of revision, but denying a higher education to students who were brought to this country by their parents, often at a very young age, and who consider this nation their home makes little sense and comes across as less than humane. Rather than solving any problems, the proposed legislation would only exacerbate the types of challenges we face with our national immigration policy.  

Comments

[Wayne D. Lewis]

Nice post Neal. I share your sentiments.

[Justin Bathon]

Kentucky got a lot of negative press for the Creation Museum thing, but this is a far, far worse black eye if this passes. I hope the economic minded individuals in the Legislature understand just how economically devastating this would be for Kentucky. States that are growing are also usually the states that are (relatively) welcoming to immigrants (and other minority population groups). There is a reason that California is what it is and South Carolina is what it is (see my earlier post on Charleston: http://goo.gl/NuoUP) . Hopefully between the economic-minded conservatives and the conscious-minded democrats this won't go anywhere in the Legislature. At least, (I think) I trust the Governor not to sign anything like this, even in an election year.

[Jason Block]

While I agree with Neal, I can certainly see the rationale behind the legislation. Constitutionally this is an interesting issue. If I remember correctly, the Plyler majority opinion (which as Neal notes does not apply to higher education) based its conclusion on the fact that Texas was penalizing children based their immigrant status, something over which they had no control. The Court also could not find any substantial state interest in discriminating against illegal alien children. The Court also noted that not allowing illegal immigrant children access to public elementary and secondary education would create a non-educated subclass in the country. So the question remains, would a court extend Plyler to higher education?
In theory when someone leaves high school they are no longer a child (although in my professional experience I would question that). Someone leaving high school should also have the basic skills to function in society. So is higher education as necessary and elementary and secondary education? Given the amount of money that a state puts into public higher education, would the perceived lack of necessity for higher education (which I disagree with), combined with majority status of the student create the justification for the state? I don't think so, but with a conservative Supreme Court, you never know!
The bottom line is that the US needs to reform its immigration laws and address these issues. Congress needs to step up. The Constitution made the federal government the ultimate decider when it comes to immigration law. While Kentucky might have good reason for adopting a law like the one proposed, and there may be constitutional ground for it, states should not be legislating around the issue of immigration or illegal aliens. Doing so could create dangerous inconsistencies across the country.