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Latino Studies Undocumented College Students and the DREAM Act
by
Michael A. Olivas

Introduction

Decided by the US Supreme Court in 1982, Plyler v. Doe (cited under Litigation) has extended beyond its grades kindergarten to twelve origins, revealing that despite its many years, the well-established rights of immigrant children have not been fully resolved and have required additional litigation and additional vigilance to secure the Supreme Court’s narrow holding. The record reveals substantial and long-standing accommodation to the 1982 development of Plyler and stretches back to 1975, when Texas enacted the offending original state law that gave public school districts the authority to charge tuition to undocumented schoolchildren. The underlying legislative history was unclear and hidden from public view. Without public hearings at the time, certain school superintendents along the Texas border had urged the legislation, which was enacted without controversy as a small piece of larger, routine education statutes. In 1982 Mexican American Legal Defense and Educational Fund (MALDEF) attorneys prevailed in the US Supreme Court in a five-to-four decision authored by Justice William J. Brennan Jr. The court struck down the Texas statute, finding the state’s theory to be “nothing more than the assertion that illegal entry, without more, prevents a person from becoming a resident for purposes of enrolling his children in the public schools” (Plyler v. Doe, footnote 22). The justices determined that Texas could not enact legislation “merely by defining a disfavored group as nonresident” (Plyler v. Doe, footnote 22) but did not reach the issue of preemption, because they were able to strike down the statute’s provisions on more narrow, equal protection clause grounds. Justice Brennan’s written decision dismissed the three arguments that Texas had advanced: that it was preserving “limited resources,” that it had narrowly tailored the legislation “to stem the tide of illegal immigration” (Plyler v. Doe, [d]), and that the undocumented presence of these children meant that they might not remain in the state and use their educations to productive use for the state. In all Justice Brennan wrote that the provision did “not comport with fundamental conceptions of justice” (Plyler v. Doe, III-A). Since 1982, Plyler has controlled educational policy in the kindergarten through twelfth grade schooling of unauthorized children. Although the case did not address issues of college access, many of these children have grown up and now attend college, which presents an entirely different set of policy issues and legal constraints. This article summarizes these developments and analyzes state and federal efforts to accommodate or restrict undocumented college students. The national debate about immigration and comprehensive immigration reform has become contentious, particularly on the subject of postsecondary Plyler issues. This article details studies and resources in several areas: General Overviews, Research Studies and Data, Nongovernmental Organization Studies, Litigation, Statutes, Challenges at the State and Federal Levels, Postsecondary Plyler, Deferred Action Policy, the Politics of Plyler, Other Plyler Articles, Anti-Immigrant Sentiment, Conservative Immigration Perspectives, and College Students.

Introductory Works

The many facets of Plyler v. Doe (cited under Litigation) have been analyzed and recounted in Olivas 2005 and in much greater detail in Olivas 2012. In both of these studies the case is situated in the larger historical record and pattern of cases involving immigrant rights and benefits.

  • Olivas, Michael A. “Plyler v. Doe, the Education of Undocumented Children, and the Polity.” In Immigration Stories. Edited by David A. Martin and Peter H. Schuck, 197–220. New York: Foundation Press, 2005.

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    This book provides a useful “back story” to a dozen significant immigration cases that were decided by the US Supreme Court, including Plyler. This chapter about the case uses original Mexican American Legal Defense and Educational Fund (MALDEF) documents, including letters among the various parties, and shows how the organization mobilized internal support and external support for the case. It also suggests that the plaintiff children had “good fortune” (p. 211) that blew their way, citing several lucky breaks in the history of the case, such as that the administration of the newly elected president Ronald Reagan did not oppose the case when he first took office and that the luck of the draw in the choices of judges assigned to the case.

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  • Olivas, Michael A. No Undocumented Child Left Behind: Plyler v. Doe and the Education of Undocumented Children. New York: New York University Press, 2012.

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    Legal study of Plyler at the kindergarten through grade twelve and collegiate levels, including a detailed chronology and political theory of the failure to enact the federal Development, Relief, and Education for Alien Minors (DREAM) Act. It is the first full-length, single-authored study of the case.

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General Overviews

Considering how few undocumented students are in the United States and how the federal legislation has failed, an unusually large literature is available on this topic, including several full-length books that analyze the subject in some detail. The best works have integrated the issue of the Development, Relief, and Education for Alien Minors (DREAM) Act and postsecondary Plyler v. Doe (cited under Litigation) into larger studies that examine immigrant students or comprehensive studies that include college attendance policies. A growing marketplace exists for this work if the early works are any indication. Romero 2004, López and López 2009, and Olivas 2012 (cited under Introductory Works) all situate the DREAM Act issues in larger, more comprehensive works that touch on many facets of immigrant life and treat the fears and challenges, as the inevitable result of Plyler, of undocumented immigrant students who have gone to college. The three works by William Pérez (Pérez 2009, Pérez 2011, Pérez and Cortés 2011) all feature ethnographic case studies based on intensive interviews with undocumented college students in California across ethnicities but particularly focused on Latinos and Asians. Rincón 2008 centers particular attention on students in Texas, the first state to make a residency tuition status available to undocumented students. The author also analyzes two-year college students inasmuch as two large community college systems in the state actually made in-district tuition available to these students before the state law was enacted in 2001. Voss and Bloemraad 2011 is edited by the first scholars to study the public demonstrations by undocumented immigrants and to view the movement as a traditional protest stream that occurs in modern US discourse and immigration polity. Massey and Sánchez 2010 analyzes anti-immigrant discourse and notes how the general polity regards both authorized immigration and undocumented immigration.

  • López, María Pabón, and Gerardo R. López. Persistent Inequality: Contemporary Realities in the Education of Undocumented Latina/o Students. New York: Routledge, 2009.

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    A comprehensive study of Latino students at the kindergarten through twelfth grade and college levels and an analysis of other related issues, such as English-language instruction for bilingual children, and issues confronting those without authorization.

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  • Massey, Douglas S., and Magaly Sánchez. Brokered Boundaries: Creating Immigrant Identity in Anti-immigrant Times. New York: Russell Sage Foundation, 2010.

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    Sociological study of how immigrants identify themselves and are ascribed traits by others, particularly in restrictionist discourse.

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  • Pérez, William. We Are Americans: Undocumented Students Pursuing the American Dream. Sterling, VA: Stylus, 2009.

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    Case studies of undocumented college students making their way through public and private colleges, especially in Southern California.

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  • Pérez, William. Americans by Heart: Undocumented Latino Students and the Promise of Higher Education. New York: Teachers College Press, 2011.

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    Sociological studies of undocumented college students in Southern California higher education institutions and their families.

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  • Pérez, William, and Richard Douglas Cortés. Undocumented Latino College Students: Their Socioemotional and Academic Experiences. El Paso, TX: LFB Scholarly Publishing, 2011.

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    Ethnographic studies of undocumented college students particularly emphasizing their difficulties in integrating into postsecondary studies.

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  • Rincón, Alejandra. Undocumented Immigrants and Higher Education: ¡Sí, se puede! New York: LFB Scholarly Publishing, 2008.

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    A detailed study of undocumented college students in Texas and the start of the country’s first residency requirement legislation, signed into law by Governor Rick Perry.

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  • Romero, Victor C. Alienated: Immigrant Rights, the Constitution, and Equality in America. New York: New York University Press, 2004.

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    The first full-length book on this larger issue of the undocumented in US society, including several public domains, such as drivers’ licenses, schooling, and financial aid for college students.

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  • Voss, Kim, and Irene Bloemraad, eds. Rallying for Immigrant Rights: The Fight for Inclusion in 21st Century America. Berkeley: University of California Press, 2011.

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    A careful analysis of the explosive rallies in spring 2006 that first made the larger public aware of the issues confronting these undocumented students. This interdisciplinary collection of essays on the topic of mobilization, organizing theory, and political activism on the part of the undocumented largely made it possible for the DREAM Act to proceed in the US Congress and clear the House of Representatives, even though it stalled the next year in the Senate.

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Research Studies and Data

A 2006 Migration Policy Institute (MPI) study (Batalova and Fix 2006) estimated that approximately fifty thousand undocumented college students were enrolled, including full-time and part-time students. These data do not include persons who might be eligible for the DREAM Act’s military options for legalization. Additional studies or data include Redden 2009, Passel and Cohn 2009, Konet 2007, and Marquez and Witte 2009, which provide details and demographic data on this difficult to measure population.

Nongovernmental Organization Studies

Many nongovernmental organizations (NGOs) have undertaken research studies on the issue of undocumented children, including both those in kindergarten through grade twelve and those in higher education. Among these are studies by the Center for Public Policy Priorities (Center for Public Policy Priorities 2008), the Urban Institute (Chaudry, et al. 2010), and the College Board (Gonzalez 2009). These NGO studies review immigrant schooling and problems that arise for the undocumented.

Litigation

In addition to Plyler v. Doe, several other federal and state cases have been litigated that have influence on postsecondary residency, the issue of whether the undocumented may enroll, and the extent to which states may allow them to enroll or choose to restrict their enrollments: Vlandis v. Kline, League of United Latin American Citizens v. Wilson, Student Advocates for Higher Education v. Trustees of the California State University, Day v. Sebelius, Martinez v. Regents of the University of California, Mannschreck v. Clare, and Immigration Reform Coalition of Texas v. State of Texas et al.. The law has evolved to the point that it has become clear that states may take either approach and their decision will be upheld by courts.

Statutes

As detailed in Schrag 2000 (cited under Challenges at the State and Federal Levels), President Bill Clinton’s second term in office was accompanied by the rise of the Republican Party, which took both the House and the Senate in the 1996 elections. During this period Congress attempted to rescind Plyler v. Doe (cited under Litigation) by considering the Gallegly amendment and eventually traded that for significant cutbacks in immigration policy. Two pieces of restrictionist legislation were enacted: the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Provisions that became 8 USC §§ 1621 and 8 USC §§ 1623 originated in PRWORA and IIRIRA. These two sections affected the statutory manner in which states controlled college residency for the undocumented, and the litigation on this subject since 1996 has interpreted and applied these provisions.

Challenges at the State and Federal Levels

In 1994 Governor Pete Wilson of California, a Republican, backed a popular state referendum, Proposition 187, that would have denied virtually all state-funded benefits (including public education) to undocumented Californians. The initiative was passed by nearly 60 percent of the voters, and Wilson was reelected. Before Senator Robert Dole (Republican from Kansas) won his party’s presidential nomination, Wilson also mounted a presidential campaign on a get-tough-on-immigration platform. The Mexican American Legal Defense and Educational Fund (MALDEF) took the issue to federal court and was able to strike down almost all of Proposition 187’s provisions at the trial court level and ultimately reached an agreement with Wilson’s successor, Governor Gray Davis. These events have been analyzed in Baird 2006, especially the chapter on immigrants’ rights, welfare, and federalism, in which the author looks carefully at the line of immigrant cases and issues of federalism—that is, those in which immigration matters are reserved to the national government and those that can be undertaken by state governments. The year 1996 saw the reelection of President Bill Clinton, his move to the political middle that led to the enactment of restrictionist federal legislation—Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)—and the efforts of Representative Elton Gallegly of California to amend federal law and allow states to enact the type of legislation that Texas had passed in 1975 and that led to Plyler v. Doe (cited under Litigation). The Gallegly amendment drew sufficient negative attention that it was withdrawn from several other federal legislative proposals, but a number of restrictive amendments were adopted. However, the threat to Plyler at the federal level never gained much traction. Participant-observer Philip G. Schrag wrote authoritatively about these events, particularly the laws concerning political asylum seekers and refugees, in his case study of the 1996 immigration proposals (Schrag 2000). Because Schrag operated as a public-interest lobbyist during this period, his book is filled with many of the large and small issues that arose during the political process. Schrag notes in his reading of the threats to Plyler that the case has proven quite resilient, fending off litigative as well as federal and state legislative efforts to overturn it while simultaneously nurturing efforts to extend its reach to the college students who were allowed to stay in school by Plyler.

  • Baird, Vanessa A. Answering the Call of the Court: How Justices and Litigants Set the Supreme Court Agenda. Charlottesville: University of Virginia Press, 2006.

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    In this book the political scientist Baird shows how the US Supreme Court is not a passive but an active participant in soliciting cases and signaling to its many constituencies. Baird also employs the MALDEF challenge to Proposition 187 (League of Latin American Citizens v. Wilson, also known as LULAC v. Wilson) as a case study to show the tensions in federal immigration law and the ability of states to enact constitutional immigration statutes and policies. See in particular chapter 3, pp. 73–82.

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  • Schrag, Philip G. A Well-Founded Fear: The Congressional Battle to Save Political Asylum in America. New York: Routledge, 2000.

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    This full-length book is a case study of the struggles between President Clinton and the Republican Congress over the 1996 statutes affecting refugee and asylum law and the general restrictions enacted to “tighten up loopholes” in federal immigration policy.

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Postsecondary Plyler

The original DREAM Act was introduced by Senator Orrin Hatch (Republican from Utah) in 2001 and was reintroduced in bipartisan fashion in successive years. Yet neither chamber passed a version of the legislation, presented in varying formats, that offered certain undocumented college students the opportunity to regularize their status and earn legalization (termed “amnesty” by restrictionists) to become citizens eventually. In fall 2010, at the urging of Latino groups and to jump-start comprehensive immigration reform, Senator Harry Reid (Democrat from Nevada) brought forward a bill that for the first time appeared to be a legislative priority. Facing a substantial challenge in his reelection to the US Senate, Reid opted for a down payment approach, with the DREAM Act being the first building block toward future comprehensive reforms and the Agricultural Job Opportunities, Benefits, and Security (AgJOBS) Act as the likely next step. The DREAM Act became an amendment to Department of Defense bill S. 3454, the National Defense Authorization Act for fiscal year 2011. Even Republican supporters of the legislation in 2007 did not support the overall package in the 2010 effort, and two Democrats crossed party lines to vote against it as well. Once again the DREAM Act was tantalizingly close. After that, many stories about undocumented college students were publicized in the media, and these continued throughout the lame-duck session. But once again the votes were not there. The third time may be the mythical “charm,” but not on this subject. In the final days of the same congressional session, the greatest disappointment occurred when Democratic backers of the legislation fell short of the sixty votes required to move the DREAM Act legislation forward, with a vote of fifty-five to forty-one in favor. These complex issues are documented in Olivas 2009.

Deferred Action Policy

Following the stinging defeat of the DREAM Act, during which time hundreds of students revealed that they were undocumented immigrants, the Barack Obama administration drafted a discretionary deferred action (da) policy, employing dormant administrative authority to allow these students to stay in the country in an inchoate “holding pattern” that did not allow these young people to regularize their status or give them work authorization but also did not deport them back to their home countries. Although this policy was used across other categories of undocumented persons, such as spouses of undocumented military recruits and others with humanitarian considerations, it was imperfect, and the Obama administration averred that it would use it sparingly and not make it a blanket policy. Secretary of Homeland Security Janet Napolitano said it would be used for low-priority enforcement, but the details have never been clarified. In 2012 this status was continued, but Republicans inveighed against it. The 2012 Republican presidential candidates (except Governor Rick Perry of Texas, who was excoriated by other candidates for having signed such a state policy into law in 2001 and then defended it in the presidential primary debates) expressed disapproval over the policy. New York Times reporter Julia Preston carefully followed these issues. Several of Preston’s articles, such as Preston 2011 and Preston 2012, give substantial detail on the legal and legislative developments. In all of these stories Preston records the push by progressive advocates to expand the deferred action determinations and the push back by more conservative groups that oppose expanded discretion used to allow undocumented college students and others to remain in the United States. In November 2011 other developments occurred in the issue of deferred action and the extent to which the Obama administration would extend it to DREAM Act students and others in the country without legal status. The Obama administration announced it would review immigration cases in Baltimore and Denver to determine whether to freeze deportations of unauthorized residents who have no criminal records and then expand the program nationwide. The plan was to target those whose deportations could be put on hold under the test program, such as the elderly, children who have been in the country more than five years, students who came to the United States at younger than the age of sixteen and are enrolled in a college degree program, and victims of domestic violence. The deferred action policy, however advantageous, is not a true resolution of undocumented immigration status and will likely leave many “DREAMers” unaided and ineligible. In addition to the work by Preston, other useful accounts include Diamond 2012, Kaczor 2012, Scharrer 2012, Esquivel 2011, and Reich and Barth 2010.

Deferred Action for Childhood Arrivals

On the thirtieth anniversary of Plyler v. Doe (1982), in which the US Supreme Court ruled that states could not deny funds for the education of children of unauthorized immigrants, President Barack Obama announced a halt to the deportation of some undocumented immigrants who came to the United States as children. The policy change, Deferred Action for Childhood Arrivals (DACA) began in August 2012 and immediately changed the lives of tens of thousands of these young students. It is a technically difficult application with a number of criteria, but when the status is granted, along with employment authorization it allows additional access to benefits, such as drivers’ licenses, in-state tuition, and the ability to work legally in the United States. It does not reconstitute the underlying unauthorized presence of the DACA recipients and only lasts for two years, renewable if the program continues. Each DACA applicant’s history is considered along with other facts to determine whether, under the totality of the circumstances and on a case-by-case basis, he or she will be granted prosecutorial discretion.

The Politics of Plyler

A growing amount of literature is available on the politics of Plyler v. Doe (cited under Litigation) and case studies on individual state legislative histories. See, for example, Schuck 1984, Johnson 1995, Hebel 2001, Kaushal 2008, Reich and Mendoza 2008, McCormick 2009, and Flores 2010.

  • Flores, Stella M. “The First State Dream Act: In-State Resident Tuition and Immigration in Texas.” Educational Evaluation and Policy Analysis 32.4 (2010): 435–455.

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    This detailed case study analyzes the establishment of residency tuition for undocumented students in the state of Texas. Because it was the first state to offer such in-state tuition for this group of students and because there are large numbers of such students in the state, Texas is an important case study. Available online for purchase or by subscription.

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  • Hebel, Sara. “States Take Diverging Approaches on Tuition Rates for Illegal Immigrants.” Chronicle of Higher Education, 30 November 2001.

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    Analysis of multiple policies concerning undocumented college tuition, financial aid, and admissions. Available online by subscription.

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  • Johnson, Kevin R. “An Essay on Immigration Politics, Popular Democracy, and California’s Proposition 187: The Political Relevance and Legal Irrelevance of Race.” Washington Law Review 70 (1995): 629–673.

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    Comprehensive review of issues in Proposition 187. Available online for purchase or by subscription.

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  • Kaushal, Neeraj. “In-State Tuition for the Undocumented: Education Effects on Mexican Young Adults.” Journal of Policy Analysis and Management 27.4 (2008): 771–792.

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    This is an economic study of the enrollment measures of undocumented Mexican college students based on their residence in an accommodationist or restrictionist state. Available online for purchase or by subscription.

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  • McCormick, Elizabeth. “The Oklahoma Taxpayer and Citizen Protection Act: Blowing Off Steam or Setting Wildfires?.” Georgetown Immigration Law Journal 23 (2009): 293–363.

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    This detailed case study analyzes the establishment of residency tuition for undocumented immigrants in the state of Oklahoma, including the rescission of a portion of the original legislation that had also accorded financial aid. Available online for purchase or by subscription.

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  • Reich, Gary, and Alvar Ayala Mendoza. “‘Educating Kids’ versus ‘Coddling Criminals’: Framing the Debate over In-State Tuition for Undocumented Students in Kansas.” State Politics and Policy Quarterly 8.2 (2008): 177–197.

    DOI: 10.1177/153244000800800204Save Citation »Export Citation »E-mail Citation »

    This detailed case study analyzes the establishment of residency tuition for undocumented students in the state of Kansas. Available online for purchase or by subscription.

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  • Schuck, Peter H. “The Transformation of Immigration Law.” Columbia Law Review 84.1 (1984): 1–90.

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    Early and thorough review of constitutional law principles arising in Plyler v. Doe (cited under Litigation). Available online by subscription.

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Other Plyler Articles

Articles on other features of Plyler v. Doe (cited under Litigation) include Olivas 1995, Romero 2002, Romero 2003, Khatcheressian 2003, Olivas 2004, López 2005, and Olivas 2008. Each of these articles examines Plyler and situates the case in the college context or the elementary or secondary setting.

  • Khatcheressian, Laura. “FERPA and the Immigration and Naturalization Service: A Guide for University Counsel on Federal Rules for Collecting, Maintaining, and Releasing Information about Foreign Students.” Journal of College and University Law 29.2 (2003): 457–484.

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    The US Patriot Act enacted several changes in the law concerning international students and added many antiterrorism national security provisions. This article reviews those concerning student data and the various programs that monitored student and scholar immigration flows.

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  • López, María Pabón. “Reflections on Educating Latino and Latina Undocumented Children: Beyond Plyler v. Doe.” Seton Hall Law Review 35.4 (2005): 1373–1406.

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    This article usefully examines the many educational and policy issues that arise in public schools enrolling undocumented children.

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  • Olivas, Michael A. “Storytelling out of School: Undocumented College Residency, Race, and Reaction.” Hastings Constitutional Law Quarterly 22 (1995): 1019–1086.

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    This law review article was the first to address the comprehensive history of residency requirements prior to the 1996 federal laws that have since controlled what states may and may not do to address this issue.

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  • Olivas, Michael A. “IIRIRA, the DREAM Act, and Undocumented College Student Residency.” Journal of College and University Law 30.2 (2004): 435–464.

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    The US Patriot Act enacted several changes in the law concerning international students and added many antiterrorism national security provisions. This article reviews those concerning higher education, including admissions, research regulations, and border security. It also analyzes sections 1621 and 1623 regulating resident tuition and state policies. Available online for purchase or by subscription.

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  • Olivas, Michael A. “Lawmakers Gone Wild? College Residency and the Response to Professor Kobach.” Southern Methodist University Law Review 61.1 (2008): 99–132.

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    This article addresses specific policy proposals made by restrictionists and litigation undertaken by nativist organizations seeking to overturn Plyler and its application to colleges, particularly the various initiatives of the law professor Kris W. Kobach. Available online for purchase or by subscription.

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  • Romero, Victor C. “Postsecondary School Education Benefits for Undocumented Immigrants: Promises and Pitfalls.” North Carolina Journal of International Law and Commercial Regulation 27.3 (2002): 393–418.

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    This article examines the constitutional provisions of residency tuition policy, particularly the first policies instituted in Texas and California. Available online for purchase or by subscription.

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  • Romero, Victor C. “Noncitizen Students and Immigration Policy Post-9/11.” Georgetown Immigration Law Journal 17.3 (2003): 357–366.

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    This article examines the constitutional provisions of residency tuition policy, particularly the antiterrorism concerns that arose when it was discovered that several 9/11 terrorists had been students. Available online for purchase or by subscription.

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Anti-Immigrant Sentiment

A large amount of literature concerns the ebb and flow of anti-immigrant sentiment in the United States, including Ngai 2003, Chavez 2008, and Tichenor 2009.

  • Chavez, Leo R. The Latino Threat: Constructing Immigrants, Citizens, and the Nation. Stanford, CA: Stanford University Press, 2008.

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    This book describes the history of anti-immigrant attitudes and how these have been manipulated for economic gain and racist purposes.

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  • Ngai, Mae M. “The Strange Career of the Illegal Alien: Immigration Restriction and Deportation Policy in the United States, 1921–1965.” Law and History Review 21.1 (2003): 69–107.

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    Ngai’s work traces the history of anti-immigrant legislation and restrictionist discourse, including the social construction of the concept of “illegality” directed at immigrants of Mexican origin. Available online for purchase or by subscription.

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  • Tichenor, Daniel J. “Navigating an American Minefield: The Politics of Illegal Immigration.” Forum 7.3 (2009).

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    Analyzes the various and competing legislative issues that are contested in immigration reform, including polarization and nativism as deep-seated political dimensions. Available online for purchase or by subscription.

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Conservative Immigration Perspectives

Relatively few conservative immigration scholars publish in the scholarly journals. Chief among those who have is Kris W. Kobach (Kobach 2006–2007), who has undertaken much of the litigation that has sought either to strike down accommodationist policies or to impose restrictionist policies. See also Kasarda 2009.

College Students

A substantial outpouring of stories by the popular press and other media have focused on undocumented students, including those who have taken to “outing” themselves as civil rights protests. See Preston 2010, Tobar 2010, Stavans 2011, and Preston 2009 as examples.

LAST MODIFIED: 03/19/2013

DOI: 10.1093/OBO/9780199913701-0003

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