Biden will allow undocumented students to access pandemic relief

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Tuesday, June 1, 2021

Education Secretary Miguel Cardona recently announced that undocumented and international college students will now be able to receive pandemic relief grants. This announcement reverses a Trump administration policy that narrowed eligibility for the $35 billion in emergency aid that Congress authorized over the last 18 months for students facing housing, employment and food insecurity. The Trump administration had barred these two groups from receiving aid, a policy choice that affected undocumented students across the nation.

Basic needs insecurity has been shown to be a significant factor in a student’s success, and nearly three in five students experienced some form of basic needs insecurity this past year. The Biden administration’s commitment to providing all students with needed assistance is an important step to making sure all can get back on track and expanding access to the American Dream in the wake of the pandemic.

Yet, this policy shift represents only the most recent skirmish in a 40-year battle over who has access to public education and the social safety net, including questions about where undocumented immigrants fit in our society. Students have often been at the forefront of this battle, and the Biden administration’s announcement signals an important reversal in a decades-long erosion of rights for undocumented students.

By the mid-20th century, the United States had an expansive social safety net. From their establishment during the New Deal, programs like Social Security and unemployment insurance had few restrictions on immigrants, and no federal law barred noncitizens from eligibility. When new programs like Medicaid were created in 1965, the same eligibility rules applied. That is, immigrants had access to most programs, regardless of their status.

The same was true of public education. Public schools had long been understood as an engine of immigrant assimilation, and by the time of the Great Society in the mid-1960s, access to integrated, funded public schools was understood to be a key component of American life.

Simultaneously, heading into the 1970s, questions were arising about whether the United States had become too generous, with its expanded welfare state and a variety of new benefits. This coincided with shifts in immigration policy and geopolitics that increased immigration for the first time since the early part of the century.

Activists who sought to limit or curtail immigration, particularly of people of color, recognized that open racism and nativism had become less tolerated in public discourse in the aftermath of the civil rights movement.

In the 1970s, therefore, they pivoted their strategy and attacked immigrants’ access to education and the social safety net, suggesting that outsiders were taking from deserving Americans and that they unduly burdened the nation. Anti-immigrant activists began to pass state laws and bring litigation to limit access to public services and benefits on the basis of immigration status, pushing for deeper distinctions between citizens and noncitizens.

Initially, these efforts were met with mixed results. In 1971, the Supreme Court upheld immigrants’ access to benefits in Graham v. Richardsonwhich ruled that states could not impose welfare benefit restrictions on noncitizens that didn’t apply to citizens. Such restrictions violated the Equal Protection provision of the Fourteenth Amendment and infringed on the federal government’s exclusive control of immigration.

But officials in the Nixon administration used their power to prohibit states from providing federal welfare support and Medicaid to unauthorized immigrants. Over time, this move paved the way for barring unauthorized immigrants from most federally funded programs.

Public schools became the next site of battles over whether immigrants could access the same resources as citizens.

In 1977, a school district in Texas, with the backing of the Texas state legislature, began to charge tuition to undocumented students to attend the local public school. Immigrants’ rights activists and anti-immigrant activists fought over the issue in public discourse and in the courts. Lawyers for the students argued that the Texas statute violated the Equal Protection clause of the Fourteenth Amendment. Conservative activists countered that the state had the right to determine whether to educate undocumented students, and saw the case as a battle against the continued expansion of the rights revolution of the 1950s and 1960s. Famously in Plyler v Doe (1982), the Supreme Court ruled that the Constitution guarantees all children, regardless of immigration status, equal access to a primary and secondary public education.

Although states could not bar undocumented children from accessing public schools, restrictionist activists continued to draw a connection between immigrants and public benefits. As the politics of immigration shifted in the 1990s, an emboldened restrictionist movement pushed a narrative that questioned access to the social safety net for all noncitizen immigrants, regardless of immigration status.

In California, for example, anti-immigrant activists pushed a ballot initiative, Proposition 187, which would prohibit unauthorized immigrants from using non-emergency health care, public education and other services. Voters approved the initiative, something that anti-immigrant activists and politicians noted. Framing immigrants as undeserving takers had resonated.

At the federal level, Rep. Elton Gallegly (R-Calif.) introduced an amendment to a 1996 immigration bill that would have allowed states to charge tuition to undocumented students or to exclude them from public school altogether.

Many of the provisions of Prop 187 were invalidated by the federal courts and the Gallegly amendment failed — but immigrants’ access to the social safety net continued to be attacked.

Under President Bill Clinton’s welfare reform, authorized immigrants in particular — lawful permanent residents — saw dramatic shrinkage in access to programs like Medicaid, food assistance and other key social safety net programs. (Unauthorized immigrants were already largely barred from accessing these programs.) The government issued new guidelines for the “likely to become public charge” rule, outlining how the use of certain government support could be used to deny immigrants admission and adjustment of status. Denying permanent residents access to the safety net undermined the very purpose of these programs — to sustain people’s lives and well-being when in need — and affected U.S. citizen family members as well.

The 1990s also witnessed efforts to block undocumented students from attaining access to higher education. Today, undocumented students across the country face barriers in accessing higher education, including being ineligible for federally funded programs such as Pell Grants. While some states welcome undocumented students, providing them access to state-based tuition assistance programs and in-state tuition, other states deny undocumented students access to in-state tuition rates. Several states bar undocumented students from attending public institutions at all.

The Trump administration frequently turned to the frameworks of the 1990s to attack immigrants’ access to the social safety net, adopting new guidance that enabled immigration officials to weigh a wide swath of assistance previously excluded from consideration when determining “likely to become public charge” status. It turned to the language of welfare reform to ban unauthorized students from accessing emergency aid during the pandemic.

But, as the majority opinion in Plyler noted over 40 years ago, “It is difficult to understand precisely what the State [Texas] hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries.” The Trump era policy of denying undocumented students access to emergency student assistance did just that, creating a subclass of students in a moment when they needed the assistance the most.

The recent announcement from the Department of Education is welcome news. Yet without congressional action, such as passing the Dream Act, undocumented students remain vulnerable to future attacks on access to the social safety net and rights, policies that do nothing but subvert the American Dream for all.

Story by: Sarah R. Coleman

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