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Iceoffourcampus: the Liability and Responsibility of Colleges and Universities for the Educational Attainment of Dreamers David H.K

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Iceoffourcampus: the Liability and Responsibility of Colleges and Universities for the Educational Attainment of Dreamers David H.K Belmont Law Review Volume 5 Symposium 2017: Education Reform at the Article 7 Intersection of Law, Politics, and Policy 2018 #ICEOffOurCampus: The Liability and Responsibility of Colleges and Universities for the Educational Attainment of DREAMers David H.K. Nguyen University of Texas at San Antonio Follow this and additional works at: https://repository.belmont.edu/lawreview Part of the Legal Writing and Research Commons Recommended Citation Nguyen, David H.K. (2018) "#ICEOffOurCampus: The Liability and Responsibility of Colleges and Universities for the Educational Attainment of DREAMers," Belmont Law Review: Vol. 5 , Article 7. Available at: https://repository.belmont.edu/lawreview/vol5/iss1/7 This Article is brought to you for free and open access by the College of Law at Belmont Digital Repository. It has been accepted for inclusion in Belmont Law Review by an authorized editor of Belmont Digital Repository. For more information, please contact [email protected]. #ICEOFFOURCAMPUS: THE LIABILITY AND RESPONSIBILITY OF COLLEGES AND UNIVERSITIES FOR THE EDUCATIONAL ATTAINMENT OF DREAMERS DAVID H. K. NGUYEN, JD, PHD* INTRODUCTION ......................................................................................... 152 I. DREAMERS IN POST-SECONDARY EDUCATION ........................ 153 A. DREAMers: Who Are They? Distinguishing Between Undocumented and DACAmented Students ........................ 153 B. Plyler v. Doe and Educational Guarantees for DREAMers . 155 C. Post-Secondary Education Attainment of DREAMers ........ 156 II. FEDERAL AND STATE LAWS AND POLICIES IMPACTING EDUCATIONAL ATTAINMENT ...................................................... 157 A. Federal Laws ........................................................................ 157 1. Development, Relief, and Education for Alien Minors (DREAM) Act ...................................................................... 157 2. Deferred Action for Childhood Arrivals (DACA) ............... 159 B. State Laws and Institutional Policies .................................... 161 1. Laws and Policies on In-State Tuition and Enrollment ........ 161 2. Financial Aid ........................................................................ 164 3. Professional and Occupational Licensing ............................ 165 C. Legal Update in the Trump Era ............................................ 166 III. #ICEOFFOURCAMPUS: SANCTUARY CAMPUSES AND THE MOVEMENT FOR EDUCATIONAL SUCCESS ................................. 169 A. The Sanctuary Movement .................................................... 169 1. Sanctuaries: A Historical Background ................................. 169 B. The Birth of Sanctuary Campuses ........................................ 171 1. Legal Responsibilities of Sanctuary Campuses .................... 174 2. Legal Liabilities of Sanctuary Campuses ............................. 179 CONCLUSION ............................................................................................ 181 * Assistant Professor of Educational Leadership & Policy Studies, The University of Texas at San Antonio. Dr. Nguyen’s research interests include P-20 education law and policy issues, specifically laws and policies that impact educational access for underrepresented students. He would like to thank Alyse Gray Parker for her research assistance and the Belmont Law Review editorial board for a great symposium. 151 152 BELMONT LAW REVIEW [Vol. 5: 151 INTRODUCTION While sixty-five thousand undocumented students graduate high school annually,1 a dismal 49% of undocumented students drop out.2 Various laws and policies make higher education, and education generally, unattainable and difficult,3 especially since all undocumented students have a guaranteed right to a K-12 education.4 While President Obama’s executive orders have opened access and opportunities for undocumented students,5 the election of President Trump and policies of his Administration have sparked contentious political, societal, and litigious debates surrounding undocumented immigration and specifically for undocumented students. In response to President Trump’s remarks concerning the arrest and deportation of undocumented students and the fear of hundreds of thousands of immigrants and students being detained and deported,6 many municipalities and college campuses have declared themselves as “sanctuaries” – adopting policies to refuse to collaborate and cooperate with 1. Leisy J. Abrego & Roberto G. Gonzales, Blocked Paths, Uncertain Futures: The Postsecondary Education and Labor Market Prospects of Undocumented Latino Youth, 15 J. EDUC. STUDENTS PLACED AT RISK 144 (2010). See also Zenen Jaimes Pérez, Removing Barriers to Higher Education for Undocumented Students, CTR. AM. PROG. (Dec. 2014), https://www.luminafoundation.org/files/resources/removing-barriers-for-undocumented- students.pdf. 2. Jeffery S. Passel & D’Vera Cohn, A Portrait of Unauthorized Immigrants in the United States, PEW RES. CTR. (Apr. 14, 2009), http://www.pewhispanic.org/2009/04/14/a- portrait-of-unauthorized-immigrants-in-the-united-states/. See also Catherine Eusebia & Fermín Mendoza, The Case for Undocumented Students in Higher Education, EDUCATORS FOR FAIR CONSIDERATION 5, http://www.e4fc.org/images/E4FC_TheCase.pdf (2013). See also Daniella Abinum, Undocumented Student Beats Odds, Heads to Georgetown, USA TODAY, (Aug. 27, 2015), http://college.usatoday.com/2015/08/27/undocumented-student- georgetown/. 3. David H.K. Nguyen & Zelideh R. Martinez Hoy, “Jim Crowing” Plyler v. Doe: the Resegregation of Undocumented Students in American Higher Education through Discriminatory State Tuition and Fee Legislation, 63 CLEV. ST. L. REV. 355 (2015). See also Angela Adams & Kerry S. Boyne, Access to Higher Education for Undocumented and “DACAmented” Students: The Current State of Affairs, 25 IND. INT’L & COMP. L. REV. 47 (2015). 4. Plyler v. Doe, 457 U.S. 202 (1982). 5. Marisa Bono, When a Rose is Not a Rose: DACA, the DREAM Act, and the Need for More Comprehensive Immigration Reform, 40 T. MARSHALL L. REV. 193, 202 (2015). 6. Grace Huerta & Catalina Ocampo, Daring to Dream: Sustaining Support for Undocumented Students at The Evergreen State College, 5 LEARNING COMMUNITIES RES. & PRAC. 1 (2017) (A college student shared her heightened fear that she may be deported under the new Trump Administration. The student planned to cancel her plans to study abroad and instead save money for a safety fund for her family). See also Priscilla Alvarez, Trump’s Quiet Reversal on Deporting Young Undocumented Immigrants, THE ATLANTIC (Apr. 27, 2017), https://www.theatlantic.com/politics/archive/2017/04/trumps- quiet-reversal-on-deporting-young-undocumented-immigrants/524367/. 2018] #ICEOFFOURCAMPUS 153 federal immigration officials.7 #ICEOffOurCampus became the social media movement to create sanctuaries on campuses to protect undocumented students from deportation and provide a learning environment where students are safe. As a response, President Trump signed an executive order denying federal funds to sanctuary cities8 and Congress has explored the same for campuses.9 While states have introduced and passed laws prohibiting “sanctuary” cities and campuses,10 courts have ruled against Trump’s executive order withholding federal funds.11 The liability and responsibility of college campuses for the educational attainment of undocumented students unravels as these legal issues are debated. This law review article will: (1) examine the current state of affairs in educational attainment of undocumented students, (2) examine the federal and state policies that impact higher education access to undocumented students, including, but not limited to, state legislation, state action, institutional policies, and federal executive orders, and (3) provide a history of the sanctuary movement, an examination of various campus sanctuary policies, and an analysis of the legality of this debate. By understanding this policy maze and the lack of federal intervention for comprehensive immigration reform, this background forms the foundation to examine the liability and responsibility of college and universities in this sanctuary movement. While this hot topic movement has a direct impact with the educational attainment of students on campus, legal scholars have yet to closely examine the legal liabilities and responsibilities of campus administrators. This article is meant to provide this background and analysis. I. DREAMERS IN POST-SECONDARY EDUCATION A. DREAMers: Who Are They? Distinguishing Between Undocumented and DACAmented Students The lack of comprehensive and consistent immigration law and policymaking at the federal level has caused a duality among undocumented youth – some have been able to benefit from participating in the Deferred Action for Childhood Arrivals (DACA) program, while others either were 7. Daniel B. Braaten, Higher Education in the Age of Trump, 45 INTERSECTIONS 5 (2017). 8. Darla Cameron, How Sanctuary Cities Work, and How Trump’s Executive Order Might Affect Them, WASH. POST (Jan. 18, 2017), https://www.washingtonpost.com/ graphics/national/sanctuary-cities/. 9. Stephen Dinan, Congress Looks to Punish “Sanctuary Campus” Colleges that Protect Illegal Immigrants, WASH. TIMES (Jan. 18, 2017), https://www.washingtontimes.com /news/2017/jan/18/congress-looks-punish-sanctuary-campus-colleges/. 10. Mississippi law bars sanctuary jurisdiction; Texas mandates local jurisdictions to honor federal detainers; noncompliance is subject to criminal penalties.
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