Evading "Residence": Undocumented Students, Higher Education, and the States
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The author provides an overview of the challenges undocumented students face with regard to higher education, surveys recent state efforts to legislate in the area of postsecondary education, and analyzes state-level statutory wording in the context of IIRIRA. The author also examines the tension between the congressional power to regulate immigration and the right of states to set tuition rates and determine residency. From a policy standpoint, because states bear the substantial cost of providing for their undocumented populations, they should have greater power to pass laws when they seek to impart, rather than deny, opportunities to undocumented students. In sum, carefully drafted state-sponsored efforts to extend in-state tuition to undocumented students should survive a legal challenge.