Lawsuit challenges state law that provides college aid to undocumented students

EDINBURG — For Carmen, as for many people, a college degree represents an opportunity for a better future. But her future is far more difficult to ascertain than it is for most U.S. college students.

She is one of several thousand undocumented immigrants attending Texas universities and colleges, according to the Immigration Reform Coalition of Texas (IRCOT).

Carmen — who declined to give her last name for fear that her current employer could face repercussions — came to the U.S. from Chiapas in 1992 at age 14, unsure of what was happening or what her future held.

Now, at 32, she is pursuing a master’s degree at the University of Texas-Pan American with the peace of mind that even if she is forced to leave the U.S., the federal government cannot take away her college education and the hope of better employment in Mexico.

“If I stayed in Mexico, I don’t think I’d have a degree,” said Carmen, who lives in Edinburg. “That’s the difference. If you go ask a few hundred people (on campus), a number of them will have a similar experience.”

Texas is one of 11 states that allow undocumented immigrants to pay in-state tuition rates and receive state grants. IRCOT challenged that law in December, arguing that the state overstepped its authority and violated federal law.

The case was moved from state district court in Harris County to federal court on Jan. 19. It could decide the fate of Carmen and at least another 8,000 undocumented immigrants who are receiving in-state tuition and scholarships in Texas, according to the coalition.

FEDERAL VS. STATE RIGHTS

President Bill Clinton signed into law two immigration omnibus bills in 1996 that, among other things, disqualified undocumented immigrants from receiving many health, welfare and higher education benefits, such as federal student aid.

But five years later, Texas became the first state to enact a law that allowed undocumented immigrants to receive in-state benefits, such as a lower tuition rate than out-of-state students and eligibility for financial assistance like grants from the Texas Educational Opportunity Grant Program.

Michael A. Olivas, a University of Houston law professor who helped draft the measure in 2001, said that IRCOT’s lawsuit is based on a flawed reading of the Illegal Immigrant Reform Act. He has argued that a clause in the federal law allows states to enact their own laws that would give residency benefits to undocumented students, if they so choose.

“This is not a federal matter — this is a state matter because it’s state tuition,” Olivas said. “The technical immigration details are complex but the issues themselves are quite clear, and I think we will prevail on this.”

Steven W. Smith, a former Texas Supreme Court justice who is representing IRCOT, said the coalition is challenging the state’s ability to give cheaper, in-state tuition rates and grants to undocumented students but is not seeking to bar them from attending colleges or universities.

“They can pay their own way just like somebody from Kansas or North Dakota,” Smith said. “It’s not preventing them from attending college. It’s a matter of them getting a tax break.”

Smith scoffed at Olivas’ reading of the federal law, saying that Texas has to “fall in line.”

“(Texas) doesn’t have any right to do what they want,” Smith said. “Everyone understands the ‘supremacy clause’” of the U.S. Constitution, which holds that federal law trumps any conflicting state law.

To be eligible for in-state tuition in Texas — which could save a student thousands of dollars a year — a student needs to have graduated from a Texas public high school and to have been a state resident living with a parent or immediate relative for at least three years.

The undocumented population in the Rio Grande Valley has been estimated to be as high as 16.4 percent, making it by far the largest concentration in the state, according to a 2006 study by the Texas comptroller’s office.

Still, local colleges and universities say the number of undocumented students attending their schools and receiving state benefits is small compared to their total enrollment.

In the fall 2009 semester, about 300 of UTPA’s 18,337 students, or 1.6 percent, were undocumented, and about 500 of South Texas College’s 27,000 students, or 1.9 percent, were undocumented , according to the institutions’ admissions offices.

“We’re going to do what the legislation allows us to do,” said Maggie Hinojosa, dean of admissions at UTPA. “We have bright students and we don’t look at them as undocumented or not. It takes a bright individual to get into college and graduate, and we’re going to do everything within the law to help them get their education because that’s what helps our economy.”

Undocumented immigrants accounted for 6.9 percent of the Valley’s workforce in 2005 and contributed 6.8 percent to the regional gross domestic product, primarily through low-paying jobs, according to the 2006 study.

But Smith, the attorney representing IRCOT, argued that an undocumented student with a college degree wouldn’t, in fact, help the U.S. economy because once the student gets a diploma he cannot legally work in the U.S.

‘MY FUTURE HERE IS BLURRY’

Carmen, the UTPA grad student, faces that dilemma and is well aware of it.

Sitting in a classroom at the university late one night, she said she was unsure what she would do with her master’s degree in Spanish literature. She has no path to legal residency status here and does not want to return to Mexico — a country she barely knows anymore.

She may have no choice.

At the very least, she said, she can return to Mexico to teach at a private school like a former classmate of hers at UTPA, who is receiving better pay than her colleagues because of her U.S. degree.

“I don’t know how I would be able to get a job teaching (high school) here,” Carmen said. “My future here is blurry, honestly. I really don’t know what’s going to happen.”

But Carmen said she was grateful for the chance at higher education, something she said she certainly would not have been able to afford had her mother decided to stay to work on a banana farm in Chiapas 18 years ago.

She also would not have been able to afford it without financial help from a former Edinburg High School teacher and without the Texas law that allowed her to receive state grants and pay in-state tuition.

“If it was the out-of-state tuition, it would have been three times as much and there’s no way,” she said.

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Nick Pipitone covers McAllen, PSJA, the Mid-Valley and general assignments for The Monitor. He can be reached at (956) 683-4446.