Illegal Immigrants & Community College: What Does the Law Say?

An abridged version of this article appeared in the Wilmington Star-News.

If you are confused about the controversy over admitting illegal aliens to our state community colleges, you are not alone. Having changed its policy four times in seven years, the community college system is also confused. The attorney general’s office, though they’d never admit it, seems confused as well. They’ve changed their opinion on this matter twice in 3 months. For their part, the General Assembly is not confused. They seem to know what is at stake and so refused to act one way or another during the last session. This, of course, led to further confusion, with the result that the State Board of Community Colleges is being compelled to take up this question at its upcoming August 15 meeting.

No doubt, federal immigration law is confusing. Illegal immigration is, well, illegal – as is harboring or employing an illegal alien. Likewise, it is illegal for a foreign national to attend college in the United States without a student visa. Yet, here we are debating whether illegal aliens can attend community college in North Carolina.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 mandates that illegal aliens are not eligible “for any State or local public benefit.” Such benefits are defined as all grants, contracts and licenses and virtually all welfare, retirement and postsecondary educational benefits “for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.”

As far as our community colleges go, this means either one of two things: 1) all postsecondary educational benefits, including admission, are prohibited; or 2) only those benefits that entail “payments or assistance” are prohibited. Under the first reading, admitting illegal aliens to community colleges is against the law because such admissions depend upon “appropriated funds.” Under the second interpretation, only scholarships and other forms of direct financial aid are proscribed.

Here in North Carolina the broader interpretation of the law – prohibiting illegal alien admissions altogether – prevailed from 2001 to 2004. (The colleges continued to admit illegal aliens to continuing education programs, which cost the same as, if not more than, the curriculum courses.) In 2004, this policy was changed to permit each college “the discretion” to admit illegal aliens. Without citing a specific law or legal decision, the memo claimed to be based on “further clarification of federal statutes.” In November 2007, this optional policy became a requirement, to the consternation of much of the voting public. Then, just prior to the beginning of the legislative session in May 2008, the attorney general’s office advised the community colleges to return to their initial stance of prohibiting illegal alien admissions. 

 In May, the attorney general’s office also asked the Department of Homeland Security (DHS) for clarification. According to DHS official Jim Pendergraph (a retired sheriff from Mecklenburg County), federal law does not consider admission to a community college to be a public benefit. Pendergraph’s conclusion is buttressed by a 2004 federal district court ruling (Equal Access v. Merten) that determined that while college admission is not a public benefit, the state of Virginia was within its rights to prohibit illegal aliens from attending public colleges and universities.

By contrast, Garrett Roe, an attorney with the D.C.-based Immigration Reform Law Institute, argues that appropriations from state and local budgets to support community colleges do constitute a public benefit. “Pendergraph is ignoring a key part of the definition – ‘assistance … by appropriated funds of a State or local government,’” observes Roe. “If Congress wanted to only focus on ‘direct’ assistance to these groups, it would not have included the term ‘by appropriated funds of a State.’” Roe’s conclusion is also supported by Equal Access v. Merten, which suggests Congress intended to convey the message that “public post-secondary institutions need not admit illegal aliens at all.”

What all this means is that Sheriff Pendergraph’s letter does not settle anything. After all, while the Department of Homeland Security is charged with enforcing and administering immigration law, they do not possess the authority to interpret the law. This is a job for the courts. And if the case law is unclear on this issue, it is only a matter of time before additional legal challenges clarify things. The fact is that, not only the community colleges, but the UNC system has been quietly admitting illegal aliens for some time. In the case of schools like UNC-Chapel Hill, which has an acceptance rate of 34 percent, illegal aliens are surely taking spots that would otherwise go to American citizens. One of these days a disgruntled high school senior is going to notice this contradiction and file suit.

In the meantime, Congress would prefer that these kinds of questions be settled “through the enactment of a State law” (8 U.S.C. 1621) – thus belying the fallacy that “immigration is only a federal issue.” And that brings us back to the General Assembly. As opposed to South Carolina, whose legislature recently barred illegal aliens from public colleges and universities, the N.C. General Assembly seems content to let unelected officials handle this problem through administrative channels. In spite of strong public support – 68 percent of voters – for a ban on illegal immigrant admissions, the Legislature refused to consider several bills that would have settled the matter. Apparently legislators didn’t want this controversy to become a campaign issue. Thanks to their inaction, that is precisely what is happening.