"Show me" your legal status: a constitutional analysis of Missouri's exclusion of DACA students from postsecondary educational benefits.

• Author: Pfleger, Britteny
• Position: Deferred Action for Childhood Arrivals

1. INTRODUCTION

   More than 130 years ago, Emma Lazarus penned these legendary words: "Give me your tired, your poor, Your huddled masses yearning to breathe free ... ." (1) This passage from the poem The New Colossus embodies the Statue oof Liberty's optimistic "welcome" to the world's disenfranchised people. (2) Its meaning gives a sense of hope to the roughly 1.2 million undocumented young people (3) who were given the opportunity to become legally present in the United States through the Deferred Action for Childhood Arrivals ("DACA") program. (4) Through the DACA program, undocumented young people can receive a social security number, obtain a work permit, and register for state benefits, such as in-state tuition and state scholarships. (5)

   Juan Sanchez, a Kansas resident who emigrated with his family from Mexico at the age of two, is one such undocumented individual granted DACA status. (6) Sanchez graduated with honors from Kansas City Kansas Community College in the spring of 2015. (7) Through the University of Missouri-Kansas City Metro Rate program, (8) Sanchez enrolled in the Henry W. Bloch School of Management at the University of Missouri-Kansas City as an in-state resident. (9) Sanchez worked two jobs to pay for his full-time tuition. (10) However, Missouri's new budget bill swiftly put an end to Sanchez's, and other Missouri DACA recipients', ability to afford a college education.

   Missouri passed House Bill 3 ("HB 3") in the spring of 2015, becoming one of two states to exclude DACA recipients from in-state tuition and state scholarship funding. (11) The higher education budget bill declared that public institutions would receive state funding provided that no public institution offered a student with unlawful immigration status less than the international tuition rate, nor expended scholarship money on his or her behalf. (12) Senate Bill 224 ("SB 224"), a proposal requiring that individuals who receive the A+ Scholarship have legal status, was subsequently passed the same year. (13) As DACA students claim lawful presence but not lawful status, they are subject to increased tuition and receive no funding, despite meeting Missouri's residency requirements.

   This Note discusses how Missouri's exclusion of in-state tuition and state scholarship funding affects DACA students and concludes the Missouri legislature's proposal violates the Fourteenth Amendment's Equal Protection Clause. Part II explores the DACA program and its effects on both DACA individuals and society; it then lays out Missouri law on higher education benefits, both prior to and after the passage of HB 3 and SB 224. Next, Part III details the process used to evaluate equal protection claims based on immigration status. Part IV scrutinizes the legislation under equal protection case law, ultimately concluding in Part V that HB 3 and SB 224 violate the U.S. Constitution and deprive DACA students, such as Sanchez, of their right to equal protection of the law.

2. DACA, MISSOURI, AND THE EFFECTS OF CHANGES IN THE LAW

   This Part explores the creation of the DACA program and the impact of lawful presence on both undocumented immigrants and American society. It then discusses Missouri's historically inclusive laws granting education benefits to lawfully present individuals. Finally, this Part lays out the recent changes in Missouri law excluding lawfully present individuals from receiving in-state tuition and state financial aid.

   1. Deferred Action for Childhood Arrivals

      On June 15, 2012, President Obama announced a new executive order deferring deportation actions for undocumented youth who immigrate to the United States. (14) Upon fulfilling governmental requirements to receive DACA status, an applicant to the program becomes legally present for two years. (15) Roughly 1.2 million undocumented young people were eligible for the DACA program in 2012. (16) As of June 30, 2015, the U.S. Citizenship and Immigration Services ("USCIS") granted DACA status to 770,873 applicants. (17) In Missouri, an estimated 13,000 students were eligible for DACA status in 2015; approximately 6000 students were immediately eligible for DACA status. (18) In June 2015, the USCIS granted DACA status to a cumulative total of 3033 first-time Missouri applicants. (19)

      The federal government considers DACA individuals to be lawfully present in the United States for the two years they hold DACA status. (20) By receiving DACA status, an individual stops accruing unlawful presence, a factor used by immigration officials when processing visas to the United States. (21) Lawful presence is different than lawful status: individuals with lawful status are legally recognized individuals authorized to reside in the United States. (22) While the DACA program confers legal presence, it does not change an individual's unlawful status. (23) Instead, the U.S. Department of Homeland Security ("DHS") grants DACA individuals "periods of stay." (24)

      Upon approval, DACA immigrants can apply for two-year temporary work permits and Social Security numbers. (25) Lawful presence allows undocumented young people to "achieve better economic opportunity, attain higher education, enroll in health insurance, and participate more in their local communities." (26) In a 2014 survey, seventy percent of DACA recipients reported getting their first job or starting a new job. (27) More than half of participants opened their first bank account, and more than one-third obtained their first credit card. (28)

      However, according to a report conducted by the American Immigration Council, forty-two percent of DACA respondents reported not completing their higher education on time due to financial limitations and familial obligations. (29) Further, undocumented students are three times more likely to "stop out" (leave college for a certain period of time with the intention to return) than U.S. citizens and documented individuals due to financial difficulties. (30)

      As of July 2015, sixteen state legislatures opened in-state tuition policies to students with unlawful status in order to reduce "stopping out." (31) Five of these states also offered state financial assistance. (32) Additionally, four state university systems established policies offering in-state tuition to unauthorized immigrant students. (33) For DACA students in these states, efforts to relieve financial burdens create access to higher education. Yet, for students who live in one of the two states that bars lawfully present DACA students from in-state benefits, financial barriers still obstruct entrance to postsecondary education. (34)

      Alongside the individual benefits DACA applicants receive, federal, state, and local economies also thrive when immigrants receive DACA status. Lawfully present immigrants, such as those enjoying the benefits of DACA status, earn higher wages, which results in overall growth of the U.S. Gross Domestic Product ("GDP"). (35) The Center for American Progress estimates the resulting increase in GDP will lead to an increase in income for all Americans--roughly $124 billion in the next decade. (36)

      Likewise, under President Obama's executive order, DACA recipients must comply with current tax laws and contribute to the tax revenue. (37) Unauthorized immigrants in Missouri, including those lawfully present without legal status, contributed $44 million in state and local taxes in 2010, including $8.3 million in income taxes, $31.7 million in sales tax, and $4.1 million in property taxes. (38) However, in spite of the contribution of immigrant tax dollars to Missouri's public programs, the ability of immigrants to tap into these resources exists in a state of flux.

   2. Missouri In-State Residency Legislation and Interpretation Prior to 2015

      Missouri law delegates the establishment of policies and procedures regarding in-state residency status to the coordinating board of the Missouri Department of Higher Education ("MDHE"). (39) The MDHE promulgated that students shall receive in-state tuition if they establish: (1) presence within the state of Missouri for at least the past twelve months (2) with the intent to make Missouri a permanent home for an indefinite time period. (40) In addition, noncitizens "must possess resident alien status, as determined by federal authority, prior to consideration for resident status." (41)

      For purposes of determining "resident alien status," Missouri looks to the Internal Revenue Service ("IRS") rather than immigration law. (42) The IRS considers anyone a resident of the United States for tax purposes if they meet the "substantial presence test" for the calendar year. (43) Under this test, an immigrant will be considered a resident alien if he or she is physically present thirty-one days during the current year and 183 days during the past three years. (44) Because DACA applicants are required to live in the United States continuously since June 15, 2007, (45) they fulfill the requirements of "resident alien status" described by the IRS, therefore qualifying for in-state tuition. (46)

      Under Missouri law, postsecondary educational institutions may award public education benefits, including institutional financial aid and state-administered grants and scholarships, to students lawfully present in the United States upon verifying their documentation. (47) DACA students who present certification from the DHS qualify for Missouri's postsecondary public benefits. (48) However, some state scholarships, such as Missouri Access and Bright Flight, explicitly require lawful status to receive assistance. (49)

      In 2014, the question arose as to whether lawfully present students who otherwise meet the residency requirements would be eligible for funding from the A+ Scholarship Program. (50) The A+ program grants scholarships to "graduates of A+ designated high schools who attend a participating public community college or vocational/technical school." (51) The MDHE recognized that the statute...