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Enact the DREAM Act

The National Law Journal
November 29, 2010

On Oct. 13, Georgia became the second state to bar illegal immigrants from enrolling in its public colleges; South Carolina has a similar ban. Although the Georgia prohibition extends only to schools with selective admissions policies, Republican lawmakers will most likely advance bills to broaden it to cover all state colleges. This radical move is not only mean-spirited, it also counters the generous intent of current efforts to enact legislation at the national level easing the plight of undocumented students who seek post-secondary education.

These young people, some of whom have lived virtually their whole lives in the United States, suffer from an unenviable lot. Brought to this country by parents who overstayed visas or skirted the legal process entirely, they have been taxed with the "sins" of their fathers. Since Plyler v. Doe, 405 U.S. 202 (1982), voided restrictive Texas laws as a denial of equal protection, states may not deprive such children of access to basic public education or charge them tuition. But once they obtain a high school degree and wish to pursue college and careers, the doors to opportunity slam shut in their faces.

As illegals, they may not, among other things, obtain a driver's license or licenses to practice skilled professions like law or teaching, and they can only work covertly. Further, except in 10 jurisdictions, they are ineligible for residents' tuition at institutions of higher learning; of the 50,000 to 60,000 who graduate from high school each year, few if any can pay full freight. (Some get help from private institutions; however, they may not receive public financial assistance.) Americans in all but official status, they are forestalled from realizing the American dream of advancement based on personal achievement — for no other reason than that their parents violated immigration laws, at a time when they had no say in the matter and, therefore, bear no moral onus.

To remedy the worst of these youths' problems, various versions of the "DREAM Act" have been introduced in Congress since 2001. (The name stands for Devel opment, Relief, and Education for Alien Minors.) Like its predecessors, the present bill, S.3827, sponsored by Sen. Richard Durbin (D-Ill.), a longtime supporter, takes a two-pronged approach.

First, it would repeal § 505 of the draconian Illegal Immigration Reform and Immigrant Responsibility Act, which forbids states that wish to extend resident tuition to undocumented students from doing so unless they are willing to provide the same benefit to their high school graduates who now live in other jurisdictions. It would not compel any state to treat such collegians equally with others, but would simply return that decision to a local rather than federal level. Purporting to read the restriction narrowly, 10 states, as previously noted, charge them only what residents pay. Yet litigation threatens to spike this liberal impulse. California's Supreme Court is currently reviewing a challenge to its law; oral argument was held in the case, Martinez v. Board of Regents, in October.

Second, more broadly, the act would furnish a pathway to permanent residency for any illegal alien who entered the United States before the age of 16, has lived here for at least five years immediately preceding the bill's enactment, is younger than 35 at the time and meets certain additional requirements. These call for the applicant to be "of good moral character"; to have earned a high school diploma or equivalent, or been admitted to an institution of higher education, in this country; not to be inadmissible or deportable on specific grounds; and to have never been under a final order of exclusion, deportation or removal. Otherwise eligible persons who have already fulfilled the act's prerequisites may gain its benefits retroactively.

The bill is not perfect. For example, an unexplained 2010 addition mandates that the alien apply for relief within a year of high school graduation or college admission. This provision, a trap for the unwary, appears at odds with the act's overall remedial intent.

Nonetheless, the case for enactment is overwhelming. Allowing these blameless youths to take their place in society rather than lead a shadow existence comports with expedience as well as morality: By letting them gain advanced education and then use it, in pursuit of legitimate careers, we would further both their interests and society's. However, the hot-button politics surrounding illegal immigration have thus far prevented the law's adoption, either as a stand-alone measure or as part of comprehensive reform. Meanwhile, at great personal risk, affected students are increasingly drawing attention to their predicament by demonstrating in support of the act.

The poet Langston Hughes asked: "What happens to a dream deferred?" Maybe, he suggested, it finally explodes.