Dreaming with dreamers when daca is at risk: an innovative and legally defensible student-community partnership model to bolster financial support for undocumented college students

• Author: William C. Kidder
• Position: B.A. and J.D., UC Berkeley; Research Associate, Civil Rights Project/Proyecto Derechos Civiles (UCLA)
• Pages: 571-620

DREAMING WITH DREAMERS WHEN DACA IS AT

RISK: AN INNOVATIVE AND LEGALLY DEFENSIBLE

STUDENT-COMMUNITY PARTNERSHIP MODEL TO

BOLSTER FINANCIAL SUPPORT FOR

UNDOCUMENTED COLLEGE STUDENTS

WILLIAM C. KIDDER*

Efforts to pass a federal Dream Act or other federal immigration law

reforms remain frustratingly elusive in this era of political polarization.

While undocumented students in the K-12 compulsory education context

have a constitutionally protected right to public education under Plyler v.

Doe, higher education is different. DACA (Deferred Action for Childhood

Arrivals) faces legal jeopardy, notwithstanding the Biden administration’s

recent commitment to fortify DACA through formal rulemaking. Today, there

are also more undocumented college students not eligible for DACA than

with DACA eligibility, and the share of DACA-eligible college students will

drop precipitously in the near future unless the final DACA regulation is both

revised and upheld in legal challenges. Against this backdrop, over 400,000

undocumented students in U.S. colleges and universities remain ineligible for

Pell Grants and federal financial aid. Similarly, the total amount of targeted

private scholarships for undocumented students (despite growing and valiant

efforts) is extremely small relative to the scale of need.

In this Article, I outline an innovative “private-ish” fundraising model for

undocumented students that can work at public universities despite legal con-

straints on “public benefits” while disrupting orthodox assumptions and

practices in higher education. This fundraising model is based upon three

* B.A. and J.D., UC Berkeley; Research Associate, Civil Rights Project/Proyecto Derechos Civiles

(UCLA); Compliance & Civil Rights Investigator, UC Riverside. The views expressed in this Article

reect my own research and policy views and are not intended to represent any position of the UCR

administration nor those of other UC/CSU campuses where I was previously employed. I am grateful to

David Alcocer, Maria Blanco, Jennifer Chacón, Miriam Feldblum, Jonathan Glater, Kevin Johnson,

Sunny Nakae, Rachel Moran, Michael Olivas, David B. Oppenheimer, Angel Rodriguez, Peter Taylor,

Ted Hsien Wang, Tania Wilcox and Janelle Wong for comments on drafts and/or the underlying ideas in

this Article. This piece is dedicated to the many inspiring undocumented students I have been honored to

work with at California universities. It is also dedicated to the late Christopher Patti (former UC Berkeley

chief campus counsel and UC senior counsel), who was a source of wise counsel in this and other areas of

the law. Finally, I do not have any nancial interests (research grants, consulting contracts, etc.) or con-

icts of interest to report for purposes of this Article, but in full disclosure, a few years ago I served as

Sonoma State University’s “relationship manager” (liaison) for a new partnership with TheDream.US (a

non-prot discussed in this Article) that generated private scholarships for SSU undocumented students.

© 2022, William C. Kidder.

571

principles of design-driven innovation: 1) organizing around the underutil-

ized human capital strengths of undocumented students and allies as social

justice agents of change; 2) scaffolding onto a field-tested college structure

that can help undocumented activist students and allies engage in organizing

in ways that are woven into in a student’s typical week of college; and 3) com-

bining conditions of scale-up and public-private partnerships, including

“infrastructure adjacency” and “force multipliers” to boost fundraising

capacity.

Through the structure of a small “voluntary student fee” that requires indi-

vidual pledges of support, undocumented student activists can take the lead-

ership role in these difficult times while mobilizing support for their cause

among their college classmates. The university has both a PayPal-like role in

providing a reliable policy architecture for scale-up and efficiently collecting

voluntary fees through its billing system and a matchmaker role in identifying

philanthropic partners. For foundations looking to support U.S. undocu-

mented students and immigrant communities, the “return on investment”

potential is likely higher than most existing alternatives. Each dollar of

matching support in this model will cycle through multiple rounds of student-

to-student “hearts and minds” engagements, foster Dreamer resiliency and

leadership, and contribute to long-term transformation of voter attitudes

about Dreamers and other immigrants. A wide-ranging review of case law

shows that the legal risks for a campus adopting this model are modest/ac-

ceptable, and in other analogous situations, private fundraising that is pub-

licly facilitated does not run afoul of federal immigration law restrictions on

“public benefits.” This campus-level funding model has additional potential

to help non-DACA students and undocumented students at the graduate and

professional school levels. In fact, law schools and other professional school

programs with tight-knit student bodies represent fertile ground for innova-

tion along the lines of the partnership model described herein.

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573

II. THE FEDERAL LANDSCAPE FROM PLYLER TO DACA AND BEYOND . . 576

III. THE FINANCIAL AID AND TUITION LANDSCAPE: A STATE-BY-STATE

OVERVIEW ...................................... 584

IV. CHANGING HEARTS AND MINDS IN THE STUDENT BODY: MEASURING

SHIFTS IN ATTITUDES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 593

572 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:571

V. GRASSROOTS ACTIVIST FUNDRAISING AT SCALE: A VOLUNTARY FEE

AND A NEW PARTNERSHIP MODEL AMONG UNDOCUMENTED STUDENT

ACTIVISTS, ALLIES, PHILANTHROPY, AND COLLEGES . . . . . . . . . . . 595

VI. PRWORA/IIRIRA CASE LAW AND ANALYSIS OF LEGAL RISKS . . 605

VII. CONCLUSION: ENTREPRENEURIAL ACTIVISM AND THE “WEAPONS OF

THE SPIRIT”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614

VIII. APPENDIX: RECOMMENDED FEATURES TO INCLUDE IN A CAMPUS

VOLUNTARY FEE .................................. 618

No magic here.

Only the heat of my desire to fuse

what I already know

exists. Is possible . . . .

It is the intimacy of steel melting

into steel, the fire of your individual

passion to take hold of ourselves

that makes sculpture of your lives,

builds buildings.

And I am not talking about skyscrapers,

merely structures that can support us

of trembling.

—Cherrie Moraga, The Welder

1

I. INTRODUCTION

David first came to the United States from Mexico at age six and enrolled

in public elementary school in Riverside, California. He graduated from high

school with honors and was admitted into the freshman class at the

University of California, Berkeley (UC Berkeley)—describing it with excite-

ment after a campus visit as an experience “like being at Hogwarts.”

However, he could not enroll due to financial hardship even after receiving a

few small private scholarships. David suffered from depression and then en-

rolled at his local community college, where he did well academically. Two

years later, he was able to enroll at UC Berkeley as a transfer student.

2

As an

undocumented student who lacked both work authorization and federal

1. Cherrie Moraga, The Welder, in FEMINIST THEORY READER, 437, 436 (Carole R. McCann &

Seung-Kyung Kim eds., 4th ed. 2016).

2. Evelyn Nakano Glenn, Constructing Citizenship: Exclusion, Subordination, and Resistance, 76

AM. SOCIO. REV. 1, 9, 12–13 (2011) (American Sociological Association presidential address by member

2022] DREAMING WITH DREAMERS WHEN DACA IS AT RISK 573