The Promise of Plyler : PublicInstitutional In-State Tuition Policiesfor Undocumented Students andCompliance with Federal Law

Table of ContentsI. Introduction 2340II. In-State Tuition Law and Policy 2343A. Current State Law 2343B. Shifting Toward Institutional Policy 23461. Rhode Island Board of Governors 23502. Michigan: The University of Michigan 23513. Colorado: Metropolitan State University of Denver 2351III. Federal Statutory Obstacles to Institutional Policy.....2354A. IIRIRA Section 505 2355B. PRWORA Section 411 23571. The Text of Section 411 Indicates Reduced Tuition Is Not a "State or Local Public Benefit" 23592. Case Law Evaluating Section 411 Supports This Interpretation 23623. Denying Reduced Tuition Under Section 411 is Inconsistent with Congressional Intent........23654. Denying Reduced Tuition Under Section 411 Is Inconsistent with the Supreme Court's View of Public Education 2366IV. Federal Courts Will Not Hear a Section 411 Claim 2370A. Statutory Enforcement of Personal Rights 23711. Implied Private Rights of Action and § 1983 Claims 23712. Application to Other Cases Indicates No Implied Private Right of Action Under Section 411 23733. The Text of Section 411 Indicates No Private Right of Action 2376B. Sovereign Immunity and Standing Limitations 2377C. Constitutional Claims 2379V. A Possible Challenge: State Attorney General Enforcement of Section 411 Under State Consumer Protection Law 2380A. Consumer Protection Law Generally 2382B. Relationship to Violations of Federal Law in Higher Education 2383C. The State Attorney General as an Enforcement Mechanism 2386VI. Conclusion 2388I. IntroductionWhile federal policymakers loudly combat the rapidly surging cost of higher education in the United States, consider a group of students who soundlessly remain outcasts: those who cannot establish their residency status in the United States. These students are ineligible recipients in the federal government's massive higher education funding push-the federal student aid programs-and therefore remain bereft of a resource relied upon by nearly half of the nation's undergraduate students.1 Undocumented students thus face a prohibitive complication to their education: operatively, the limitation concludes the education of many students once promisingly educated in the nation's public primary and secondary schools.* 2In the past decade, states answered these concerns with legislation allowing such students to receive in-state tuition rates at public colleges and universities in the state regardless of residency status.3 A majority of states, however, do not have such laws, and the 2012 failure of the federal Development, Relief, and Education for Alien Minors (DREAM) Act,4 which aimed to alleviate the financial burden on undocumented students, levied additional urgency to resolve this limitation. With a nod to this pressure, public colleges and universities and state educational boards enacted institutional policies to provide in-state tuition to undocumented students without affirmative approval from the state legislature.5This Note examines federal impediments to institutional or state policy delivered without affirmative state legislation. This Note argues that Section 411 of the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA),6 in its own right, poses no bar to institutional policy of this nature because it plainly does not encompass reduced tuition in its prohibitions. …