Undocumented Students and the Law
Created by FindLaw's team of legal writers and editors | Last reviewed September 06, 2017
You may have heard of the Development, Relief and Education for Alien Minors (DREAM) Act – a controversial piece of legislation that was reintroduced, in various forms, over more than a decade in Congress without passing. The DREAM Act would greatly expand undocumented immigrants’ access to higher education.
However, the path to a pre-college (junior high and high school) education has already been paved, and not by legislation, but by a decades-old U.S. Supreme Court decision: Plyler v. Doe. The current state of the law is this: children are guaranteed a right to an elementary and secondary (K-12) education, regardless of immigration status.
A Guaranteed Chance for a High School Diploma: Plyler v. Doe
In 1982, the U.S. Supreme Court struck down a Texas statute that required undocumented (illegal) immigrants to pay tuition, and in the process, guaranteed all children the right to pursue a high school diploma, regardless of immigration status.
In the mid-1970s, the Texas state government passed a law that, instead of apportioning school funding on a per-head basis (without regard to immigration status), limited the body of students that would be counted for funding to those lawfully present in the country. A school district in Tyler, Texas responded by charging their undocumented students $1,000 tuition each per year to make up for the decreased funding.
This, as you might expect, all but deprived many of those students of any meaningful opportunity to pursue their education. The students filed suit and the case made its way to the Supreme Court. The Court held that the state’s treatment of undocumented students in regards to their right to an education was unconstitutional.
The high standard set by the Court in that case has made it nearly impossible for schools or other government agencies to restrict undocumented students’ access to a pre-college education absent a compelling state reason to do so. To date, no school or state has met that high standard.
DREAM Act and DACA: Only Minor Effects on Elementary and Secondary Education
Plyler v. Doe has essentially guaranteed a right to pursue a high school diploma to all students. Two other programs may affect or expand that right: the DREAM Act and Deferred Action for Childhood Arrivals (DACA), but the fate of both programs remains unclear.
The DREAM Act was first introduced in 2001. It repeatedly failed to pass both houses of Congress. Variants of the law would expand access to higher (post-high school) education, financial aid, and legal immigration status. While the DREAM Act would have little effect on the right to a high school education, the reverse is true: a high school diploma has been listed as a prerequisite for benefits under the DREAM Act for those seeking access to college and financial aid.
Similarly, DACA (a program rescinded by the Trump administration on Sept. 5, 2017) is tied into students’ pursuit of a high school diploma. In order to qualify for deferred action (a two-year work permit and exemption from deportation), an undocumented immigrant must have entered the country before the age of 16 and either be enrolled in high school or have already received a high school diploma or GED. Because of the education prerequisite, DACA could lead to additional undocumented students pursuing their constitutionally guaranteed right to pursue a high school diploma. But while DACA is shelved for now, congressional action could either revive or suspend the program indefinitely.
With DACA and the DREAM Act making headlines regularly, this is a constantly evolving field of law. If you need advice or help with an immigration matter, or feel that your child’s right to a high school education is being limited due to his or her immigration status, consult with a local immigration attorney or education law attorney to determine which steps to take.
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