While other states struggle with the issue, North Carolina alone is moving ahead with an interpretation of a federal law that the state says bars illegal immigrants from attending community colleges, even if the students pay more than the cost of their education.
The new policy, ( PDF
) approved May 13 by the North Carolina Community College System
, comes after six months of political and legal controversy on the topic, but it is unlikely to be the last word in an area where federal courts and immigration officials have offered little guidance to states.
Practically speaking, the decision's effect will be limited. It doesn't apply to students attending English as a Second Language classes or vocational training, for instance. Only 112 North Carolina community college students who pursued academic credit last year - out of a total of 296,520 - likely were illegal immigrants, according to the community college system.
But symbolically, the policy is "insulting" to Latinos, said Tony Asion, executive director of El Pueblo
, a Raleigh-based non-profit group focused on developing the Latino community. He pointed out that, before the change, undocumented students were allowed to enroll but had to pay out-of-state tuition, which is set at 40 percent above cost that the colleges spend to educate them. Other North Carolina residents get a discount.
Admitting undocumented students "isn't taking any money from anyone. It isn't taking any (class) space from anyone. The reason (for the change) is: 'We just don't want these people in our schools,'" Asion said.
Politically, the issue has been explosive, pitting outgoing Gov. Mike Easley
(D), who supports allowing undocumented immigrants in the schools, against the entire field of candidates vying to succeed him, both Democrats and Republicans. And the community colleges' position is now at odds with the policy of the 16-campus University of North Carolina
system, which still admits undocumented students.
Legally, the question of whether states are free to admit illegal immigrants to state colleges - or to give them in-state tuition, as 10 other states do - continues to confound state officials across the country.
Lawmakers in Virginia and Missouri unsuccessfully tried this year to prevent illegal immigrants from signing up for classes at any state college, and out-of-state students are suing Kansas and California for giving in-state status to illegal immigrant students.
On the one hand, children who are in the country illegally are entitled to free school from kindergarten through high school, according to a 1982 U.S. Supreme Court decision, Plyler v. Doe .
But a 1996 federal law
limits states from giving benefits to older undocumented students that they don't offer to U.S. citizens. The law bars states from "providing a postsecondary education benefit to an alien not lawfully present unless any citizen or national is eligible for such benefit."
What the law means when it mentions "a benefit" is not clear, lawyers say.
The best hope for settling the matter may be the Kansas case, now on appeal to the U.S. Supreme Court. In that case, called Day v. Bond
, a Missouri student is challenging
Kansas law for favoring in-state illegal immigrants over out-of-state U.S. citizens, an alleged violation of the 1996 law.
But two lower courts dismissed the challenges without considering that argument. Instead, they ruled that the student had no standing to bring the suit, because only the federal government could challenge the law. The high court has not decided whether to hear the dispute.
Richard Samp, as chief legal counsel for the Washington Legal Foundation
, a conservative legal think tank, is supporting the Kansas challenge. He said the foundation has tried to prod the federal government to confront states offering in-state tuition to illegal immigrants, to no avail.
The Bush administration has shown "absolutely no desire" to get involved, he said.
Pat Reilly, a spokeswoman for the U.S. Immigration and Customs Enforcement
(ICE) agency, said the federal government does not require schools or colleges to check the immigration status of students, as North Carolina plans to do. Likewise, the agency does not pursue additional disciplinary action against illegal immigrants for attending public colleges.
On the other hand, she said, the only way foreign nationals can attend college in the United States legally is through the agency's International Student Exchange and Visitors Program
. Illegal immigrants in the U.S. cannot qualify for that program, Reilly said.
Reilly cited several practical reasons for the agency's stance.
ICE is more worried about enforcing immigration law in the workplace, because it's the prospect of jobs that lures immigrants to the country illegally in the first place. ICE has drastically stepped up its job-site enforcement in the last two years - including the largest raid in the country's history last week (May 12), in which nearly 400 people were detained at a meat packing plant in Postville, Iowa.
ICE does not target schools, colleges or universities, mainly because of the increased likelihood that children could get caught up in the raids, Reilly said. (She stressed, however, that ICE officers may go after illegal immigrants at any time.)
Plus, it's less likely that a separate crime occurs when an undocumented student signs up for classes than when an illegal immigrant applies for a job. At the workplace, either the employer is knowingly hiring illegal immigrants or the job applicants are using fraudulent documents to get work, both of which are crimes beyond immigration offenses, Reilly said.
The North Carolina community colleges asked the state attorney general in November whether letting undocumented students take classes was a prohibited "benefit" under the 1996 law. The attorney general's office did not provide a definite answer, citing, in part, the U.S. government's lack of guidance.
Instead, the office told the community colleges they would be on safer legal ground if they didn't admit illegal immigrants, and that advice prompted last week's change.
As unusual as the community colleges' new prohibition is nationally, it's not new for North Carolina. Between 2001 and November 2007, the state restricted illegal immigrants' enrollment in community colleges, and no one challenged the rules.
North Carolina banned all undocumented students from academic courses in 2001, but, in 2004, it let individual schools determine whether to keep the prohibition. Out of 58 community colleges, 34 lifted the restrictions by April 2005.
Last November, the community college board tried to create one rule for the whole state, allowing all undocumented students to enroll. The open-door policy announced then touched off the current controversy.
In neighboring Virginia, a federal trial judge ruled ( PDF
) in 2004 that state universities and colleges could bar illegal immigrants from enrolling, as long as they deferred to the federal government in determining legal status.
But the case focused on whether the U.S. Constitution allowed the restrictive policy; it didn't address whether the 1996 federal law required the policy. Now, most Virginia state universities block the admission of undocumented students, but some schools let them enroll.
This year, the GOP-controlled Virginia House voted to prevent illegal immigrants from signing up for classes at any state college, but the measure died in the Democratic-controlled Senate. A similar measure in Missouri also stalled this year.
Samp, the lawyer from the Washington Legal Foundation, said the 1996 federal law doesn't require states to bar illegal immigrants from public universities.
As long as a U.S. citizen from New York could still enroll in North Carolina's community colleges for the same price as an undocumented resident of North Carolina, there would be no violation of the law, he said.
"Federal law doesn't prohibit (states) from providing a benefit. They just can't give it in a discriminating fashion," he said.