Friday, September 12, 2008

Arkansas' AG Says Higher Education is Open to All

Opinion No. 2008-109

September 10, 2008

The Honorable Rick Green

State Representative

1807 Bunker Hill Drive

Van Buren, Arkansas 72956-2836

Dear Representative Green:

I am writing in response to your request for an opinion on the following:

Would you please opine on whether or not undocumented

individuals may enroll in Arkansas’s public colleges and

universities? Do the schools have a duty to verify the citizenship of

[their] admittees?

RESPONSE

In my opinion, the answers to these questions are “yes” and “no,” respectively, in

the absence of a rule or regulation that has been adopted by a college or university

refusing admission and enrollment to undocumented individuals. I am unaware

whether any Arkansas college or university has adopted such a rule or regulation.

I should also note, however, that the answers to these questions depend to some

extent upon the proper interpretation of federal law. Questions of federal law are

generally outside the scope of an opinion from this office. You may consequently

also wish to contact the U.S. Attorney’s Office regarding these matters.

The issue regarding higher education for undocumented students requires an

analysis of both state and federal law.

1

With regard to your particular question

1

Reference to federal law is necessary in light of the dominant role of federal law in the immigration area.

The United States Supreme Court has recognized that the “[p]ower to regulate immigration is

unquestionably exclusively a federal power.”

DeCanas v. Baca

, 424 U.S. 351, 354 (1976).

The Honorable Rick Green

State Representative

Opinion No. 2008-109

Page 2

concerning enrollment, it appears that the most relevant state law on the topic

provides that:

Each board of trustees of each educational institution of higher

learning supported, in whole or in part, by the State of Arkansas,

shall have the right to adopt rules and regulations for the admission

and enrollment of students in the respective institutions of higher

learning under the control of such board of trustees, expressly

including the right to refuse admission and enrollment to any person

who comes to the State of Arkansas solely for the purpose of

securing admission, enrollment, and educational advantages at the

expense of the State of Arkansas.

A.C.A. § 6-60-201(a) (Repl. 2003).

This general statute invests each institution with authority to adopt rules and

regulations regarding admission to the institution. I have previously opined that

the statute invests colleges and universities with substantial discretion as to the

fashioning of any such rules and regulations.

See

Op. Att’y Gen. 2007-065. As IColleges and Universities

§ 31, citing

Lister v. Hoover

, 706 F.2d 796 (7th Cir. 1983). Id.2 If any institution has done so, a

2

I should note that I am aware of a memorandum that was issued by the Director of the Department of

The Honorable Rick Green

State Representative

Opinion No. 2008-109

Page 3

With regard to federal law in this area, there are two federal statutes that mention

immigration status in the context of higher education: 8 U.S.C. § 1623 (part of the

Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”)), and

8 U.S.C. § 1621 (part of the Personal Responsibility and Work Opportunity

Reconciliation Act of 1996 (PRWORA”). According to my research, there are

only a few cases addressing the application of these laws in relation to

postsecondary education admission criteria; and the cases are not in accord.

Compare Equal Access Education v. Merten

Higher Education to the presidents and chancellors of the state’s higher education institutions which

addresses the matter of offering in-state tuition to students not legally present in the United States.

Memorandum from Dr. Jim Purcell regarding “Compliance with federal immigration law” (May 22, 2008).

As explained further herein, however, it appears that eligibility for in-state tuition is a matter separate from

the matter of enrollment of undocumented individuals in the state’s public colleges and universities. Your

questions pertain solely to the question of enrollment, and this opinion is limited to that issue.

, 305 F. Supp. 2d 585, 601-08 (E.D.

Va. 2004) (policy of Virginia post-secondary institutions in denying admission to

illegal aliens was not preempted by federal immigration authority) with

League of

United Latin American Citizens v. Wilson

, 997 F. Supp. 1244, 1255-56 (C.D. Cal.See Lettersee 8 U.S.C. § 1103(a)(1) and Day v. Bond, 500th Cir. 2007) (only Secretary of Homeland Security haset seq.), I believe it is

1997) (California’s Proposition 187, barring undocumented students from

attending public colleges and universities, was preempted by PWRORA and

IIRIRA).

Significantly, however, the U.S. Department of Homeland Security has expressed

the view that it is left for states to decide whether or not to enroll out-of-status or

undocumented individuals in public institutions of higher education.

from Sheriff (Ret.) Jim Pendergraph, Executive Director, Office of State and Local

Coordination, U.S. Dept. of Homeland Security to Thomas J. Ziko, Special

Deputy Attorney General, N.C. Department of Justice (July 9, 2008) (stating that

“admission to public post-secondary educational institutions is not one of the

benefits regulated by [IIRIRA] and is not a public benefit under [PRWORA,]”

emphasis original, but noting that “any state policy or legislation on this issue

must use federal immigration status standards to identify which applicants are

illegal aliens.”)

Given that enforcement and administration of the PRWORA rests with the

Secretary of Homeland Security,

F.3d 1127, 1139 (10

standing to bring legal action to enforce 8 U.S.C. § 1621

reasonable to defer to this interpretation of the relevant federal law by Homeland

Security. Accordingly, in the absence of a rule or regulation adopted pursuant to

A.C.A. § 6-60-201, discussed above, it is my opinion in response to your specific

questions that undocumented individuals may enroll in Arkansas’s public colleges

and universities and that such schools are not obliged to verify citizenship as a

condition of enrollment.

The Honorable Rick Green

State Representative

Opinion No. 2008-109

Page 4

It should be recognized as a final matter, however, that ordinarily it is not the role

of this office to opine on questions of federal law. For further information about

the impact of federal law upon your question, it would be advisable to consult with

the Office of U.S. Attorney.

Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion,

which I hereby approve.

Sincerely,

DUSTIN McDANIEL

Attorney General

DM:EAW/cyh

ra

It is thus conceivable that an Arkansas college or university might have in place a

rule or regulation refusing admission and enrollment to undocumented individuals

and requiring verification of citizenship. I am unaware, however, whether any

institution has adopted such a rule or regulation.

definitive answer to your questions would require review of such.

observed in that opinion, “[i]t has been stated that ‘In general, admission to a

school is a privilege and not, standing alone, a constitutional or property right,

subject to the exception that the rules and regulations for admission are not

discriminatory, arbitrary, or unreasonable.’ 14A C.J.S.

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Note to Arkansas State Legislature: Require all public schools to verify the immigration status of students and parents and report suspected immigration violations to U.S. Immigration & Customs Enforcement, it being understood that, while illegal alien students may not be denied K-12 public education, the State of Arkansas has the right and duty to ensure that those students receiving public education benefits are lawfully present in the United States.

Posted by: Susan Goya | Sep 12, 2008 6:21:09 PM

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