The battle over immigration policy has affected higher education in Florida. An article published in USA Today on Nov. 2, reported that five students sued the state in October for denying them in-state tuition even though they were born, raised, and attended school in the state. The students are arguing that state residency requirements, for educational purposes, are independent of citizenship status.
Some might argue that the students should not be punished for the actions of their parents. In most instances, this is certainly the case. These students, however, have received state resources (K-12 education) that their parents did not contribute to, and it would be unfair to those who have contributed to the state’s budget for these students to continue to receive state resources (in-state tuition).
In the instance of state benefits supported by taxpayer dollars, it is not only sufficient, but necessary, that Florida tailor legislation to curb these gross excesses by both individuals illegally in the U.S. and their dependents.
The crux of students’ argument rests on an opinion written by Colorado Attorney General John Suthers in 2007. Suthers argues that “Because it is the student…who is the legal beneficiary of in-state tuition status, the fact that the parents may be in the country illegally is not a bar to the student’s receipt of that benefit…”
Suthers indeed has a strong argument, and further, a powerful legal maneuver in his favor: Section 1 of the 14th Amendment to the United States Constitution. Essentially, what this section of the amendment affords these students is the right to be, whether by birth or naturalization, citizens of the United States and the state of residence, and further, to not have their rights and privileges infringed upon by the state.
However, Florida may indeed discriminate on the basis of citizenship. The major legal maneuver that the state can utilize is the 10th Amendment to the United States Constitution, which essentially gives Florida the power and authority to regulate in-state education, as this is not expressly delegated to Congress.
Florida Regulation 7.005 details “Residency for Tuition Purposes.” This regulation does three important things. First, Regulation 7.005(1) (b), in line with the federal income tax code, defines a dependent as a person who can be claimed by and receives more than 50 percent of his or her support from parents. Second, Regulation 7.005(1) (2) (a) affirms that the parents of a dependent student must have “established legal residence in the state of Florida for at least 12 consecutive months prior to the student’s enrollment in a university.” Third, Regulation 7.005 (2) (d) asserts that “The legal residence of a dependent’s…parents is…evidence of the dependent’s legal residence.”
Because the 10th Amendment gives Florida the power and authority to regulate in-state benefits, and further, because Florida Regulation 7.005 furthers an important government interest (public education) in a way that is substantially related to that interest (providing in-state tuition rates to state residents, as a benefit of state residency), Florida Regulation is not adverse to Section 1 of the 14th Amendment.
Florida grants residency for in-state tuition purposes independent of state residency. This is not only allowable but plausible and can be summarized in one word: taxes. Individuals with work visas, permanent residents and citizens pay income taxes at the federal level. The federal government then allocates monies to state educational initiatives, relative to state population and income taxes paid. Because Florida public institutions are funded by state monies, the state may craft legislation that restricts access to state benefits, of which in-state tuition qualifies.
The manner in which Florida Regulation 7.005 (1) (b) incorporates the federal tax code is the saving grace of Florida’s case. The federal income tax code does not reference individuals illegally in the U.S. because they do not pay income taxes. It follows then, that because individuals illegally in the U.S. do not contribute to the national budget and Florida’s budget, they should not be entitled to receive national and state benefits.
