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Federal law is clear; illegal immigrants aren’t entitled to benefits that exclude citizens, immigration policy spokesperson says
A federal judge recently blocked Kentucky from enforcing a law that allows illegal immigrants to qualify for in-state tuition prices at public colleges and universities – a ruling that one immigration reform leader told The College Fix clearly aligns with federal law.
However, a Mexican American legal organization is appealing the ruling, arguing that students who graduate from Kentucky high schools should have the same, lower tuition rate benefit as their peers.
U.S. District Judge Gregory Van Tatenhove sided with the U.S. Department of Justice in his March 31 ruling, agreeing that the Kentucky Council on Postsecondary Education policy conflicts with federal law regarding who is eligible for state education benefits.
Quoting the law, the Justice Department lawsuit argues that Kentucky’s provision is illegal because “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a state for any post-secondary education benefit unless a citizen or national of the United States is eligible for such a benefit … without regard to whether the citizen or national is such a resident.”
Ira Mehlman, spokesperson for the Federation for American Immigration Reform, outlined the legal precedent for the judge’s ruling in a recent interview with The College Fix.
“In 1996, Congress enacted legislation that states that any state that offers subsidized in-state tuition to illegal aliens must make that same benefit available to any U.S. citizens regardless of what state they reside in,” Mehlman said via email.
“The intent of the law could not have been clearer,” he told The Fix.
But Kentucky and other states, several of which are battling similar lawsuits, used a “loophole” to offer the lower tuition benefit to illegal immigrants if they graduate high school in the state, he said.
“Several courts have now ruled that states offering in-state tuition to illegal aliens are in violation of federal law, and a number of states have ended these benefits,” Mehlman said.
These include Nebraska, Texas, and Oklahoma. Virginia also was on the verge of settling with the federal government until its attorney general’s office changed hands from Republican to Democrat in January, The Fix reported.
Mehlman explained that states are required to offer a taxpayer-funded K-12 education to any child in the country under the U.S. Supreme Court ruling Plyler v. Doe.
However, he said: “There is no similar requirement for postsecondary education. In fact, there is no requirement that states provide reduced tuition to anyone. They do so because they view subsidized higher education for their citizens as an investment that will pay long-term benefits once these kids enter the labor force.”
Mehlman does not believe illegal immigrants are entitled to special tuition benefits. He mentioned the burden to taxpayers and the denial of similar benefits to legal residents and citizens of other states.
“There are a finite number of seats available at the University of Kentucky and other public colleges and universities,” Mehlman said.
“That means that a seat filled by an illegal alien, at a subsidized tuition rate, is a seat that is not available to someone else who is seeking to continue his or her education. For most families, the cost of a private college or university is prohibitive, meaning that their kid will have to borrow heavily or forego college,” he told The Fix.
However, a key supporter of Kentucky’s policy, the Mexican American Legal Defense and Educational Fund, believes ending it would make higher education less accessible for students who have lived and attended school in the state for years.
The legal organization filed an appeal challenging the judge’s ruling in April. It is representing the Kentucky Students for Affordable Tuition, “an unincorporated association of college students without lawful immigration status who qualified for regular tuition rates under the long-standing Kentucky policy,” according to a news release.
“There is no supportable legal basis for the court’s approval of the collusive consent decree agreement between the state and the Trump administration,” its president and general counsel, Thomas Saenz, stated in the release. “The consent decree violates the right of Kentucky to set its own policies in this area.”
The Fix reached out to the legal organization and the Attorney General of Kentucky’s office twice via email over the past two weeks to ask about the appeal. Neither responded to requests for comment.
Similar debates about illegal immigration and higher education are playing out in other states.
Earlier this year, a federal judge allowed Minnesota’s in-state tuition benefits for illegal immigrants to stand. The Department of Justice recently filed an appeal, according to a page tracking the cases at Higher Ed Immigration Portal.
Meanwhile, the Florida Department of Education recently introduced a rule that would require proof of citizenship to attend a public university in the state, The College Fix reported earlier this month.
MORE: Federal judge ends in-state tuition for Nebraska’s illegal immigrants
