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The Confederate Lawyer
October 7, 2011

Educating Texans
by Charles G. Mills
fitzgerald griffin foundation

GLEN COVE, NY — Federal law as invented by the courts requires that elementary and high school education be offered to children who are in the United States without a legal basis. This policy has raised the question of how these children should be treated when they attend public universities. California, New Mexico, and Texas at times treat them as residents. Arizona, in contrast, always treats them as non-residents.

In Texas, for example, such students pay the so-called “resident” tuition if they have spent at least three of their four years of high school in Texas or a neighboring state. The resident tuition is considerably lower than the tuition Texas charges hippies from Brookline, Scarsdale, Chevy Chase, Cherry Hill, New Trier, or Grosse Pointe who come to party at a state university for four years. The reason for this distinction is that Texan residents have typically been paying taxes (at least sales taxes) that help support the state universities, while the out-of-state students often have paid nothing to Texas and should bear a greater part of the expense of their education.

Two conflicting considerations become immediately obvious. On the one hand, it is not just to charge someone who has lived in Texas for the past 10 or 15 years the same tuition rate as someone who has never set foot in the state. On the other hand, tuition should be neither a reward for illegal immigration nor an incentive to engage in it. Texas and Arizona have clearly dealt with these competing concerns differently.

We can exclude the idea that no child of illegal immigrants should ever benefit from a state university. We can only imagine how the alumni of the University of Texas would react if the potential star running back of the Longhorns were denied his football scholarship because his parents came to Texas illegally.

Does in-state tuition act as an incentive to illegal immigration? It probably does in California, but it is not clear that it does in Texas. It is not probable that people come to Texas in the hope that, three years later, their children would get the lower rather than the higher college tuition bill. Texas chose three years. Some states might find five or six years a better precaution against college tuition being an incentive to illegal immigration. Still other states might find an intermediate tuition level to be the proper precaution.

Does in-state tuition reward illegal immigration? In a small number of cases in which the parents pay the tuition, it clearly does. In most cases, however, the tuition is paid by student loans. In those cases, the question is more complicated. It depends in part on the age at which the children were brought to the United States. If the children were below the age of reason, typically around seven or eight years of age, they have no moral responsibility for being in the United States illegally. The conduct of children below the age of criminal responsibility or the minimum age for emancipation is morally excused because of their duty to obey their parents.

It does not seem proper to punish children below the age of 16 for being here illegally. The requirement of three continuous years of Texas high school seems one acceptable means of keeping the tuition category from rewarding the guilty, although a maximum age limit of migration to the United States might be an alternative.

Clearly, more than one formula to determine which students should get in-state tuition is morally acceptable. How best to deal with the alternatives is a policy question that should be left to each state. That is the American way.

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The Confederate Lawyer column is copyright © 2011 by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com. All rights reserved.

Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.

See his biographical sketch and additional columns here.

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