In-state tuition for children of illegal residents rejected, despite federal law

Controversy over extending in-state college tuition to state residents who are U.S. citizens, but children of undocumented parents continues, as Florida's Higher Education Committee recently rejected a bill proposing to offer the benefit. The failed suit is the latest effort to force state compliance with federal law, which automatically grants in-state tuition rates to citizens, regardless of parentage.

According to current Florida law, children of undocumented residents, regardless of their legal status, must pay the out-of-state tuition fees, arguing that students are still dependents of their parents. Therefore if one parent or both parents are illegal residents, these students are disqualified from state educational assistance. Out of state tuition rates in most cases are between three hundred to four hundred percent higher than in-state tuition fees.

This is despite federal law outlined in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which states that "an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States..."

Last year several South Florida students filed a class-action lawsuit against the state, challenging Florida's in-state residency guidelines. Meanwhile Florida House of Representatives member Reggie Fullwood (D-Jacksonville), filed a bill to grant in-state tuition to citizens who are children of undocumented residents, provided they attend a Florida high school for four consecutive years and enroll in a Florida college within 12 months after graduation

The bill voted down last week, sponsored by Senator Rene Garcia (R-Hialeah) was even more favorable for immigrant families seeking educational opportunities for their children. The bill proposed extending in-state tuition to citizens of undocumented immigrants who lived in Florida for at least two years.

Florida students born outside the U.S. but brought here by undocumented parents have been campaigning for legal status under the DREAM Act, although the act was defeated in Congress last year. However, there is no pending Federal legislation that protects the educational funding of U.S. citizens who are children of undocumented parents.

Colorado has enforced a law similar to Florida. But in 2007, the Colorado attorney general overthrew the law, ruling that Colorado students who were born in the U.S. of undocumented parents could pay in-state tuition rates. The AG argued that students are the beneficiary of in-state tuition, not parents, so the parents' illegal status should have no bearing on eligibility.

A similar argument is made in the lawsuit against Florida's legislature. The lawsuit was filed by the Southern Poverty Law Center, which called Florida's policy a direct violation of the U.S. Constitution's equal-protection clause.

A financial aid administrator at a Miami-Dade college regards the Florida law as "wickedly unfair." She said there are extremely bright students born in South Florida being denied a college education and advanced career because their parents are undocumented. "These are U.S. citizens for Christ's sake, why should they be penalized?"

Maizie Fernandez of Kendall, who was previously undocumented, said her son born in Miami attained a 3.8 GPA from a South Miami high school, but because he couldn't qualify for in-state tuition, he hasn't been able to attend college. He is now a party to the filed lawsuit.

"This situation is very bad. Since I am now a legal resident, he should benefit, but this unfair law cannot be allowed to continue."