The DREAM Act and the right to equal educational opportunity: an analysis of U.S. and international human rights frameworks as they relate to education rights.

• Date: 22 September 2011
• Author: Feasley, Ashley
• Published date: 22 September 2011
• Author: Feasley, Ashley

1. Introduction II. The DREAM ACT of 2011 1. Legislative History of DREAM Act 2. Provisions of the 2011 DREAM Act 3. States' Response to the DREAM Act A. New York and California Dream Acts B. The Beason-Hammon Alabama Taxpayer and Citizen Protection Act III. Overview of Education Law in the U.S 1. The U.S. Does Not Guarantee a Fundamental Right to Education 2. Plyler: Striking Down Discrimination of Undocumented Students 3. After Plyler: Papasan and Back-Tracking IV. Application of U.S. Constitutional Framework to the DREAM Act 1. Papasan's "Minimally Adequate" Standard is Inadequate 2. Plyler's Relevance to the DREAM Act 3. Denying Undocumented Students Equal Educational Opportunities in the Public School System and the Workforce A. Linguistic Barriers B. Cost Barriers 4. Is Denying Higher Education Opportunities Denying an Opportunity to Participate in Society? V. The Intersection of Human Rights Law and U.S. Law as Related to Education Rights and the DREAM Act VI. International Human Rights Framework 1. History of UDHR, ICCPR, ICESCR 2. Protection of Children within the UDHR, ICCPR, ICESCR 3. Convention on the Rights of the Child VII. Right to Education Under Human Rights Framework 1. Right to Education Under UDHR, ICCPR, ICESCR 2. Right to Education Under the CRC VIII. Applicability of International Human Rights Law Framework to the DREAM Act 1. U.S.'s Non-Ratification of the CRC and ICESCR 2. U.S. Responsibilities under the UDHR and ICCPR 3. The U.S.'s Discrimination on the Basis of National Origin IX. Conclusion I. INTRODUCTION

   Over the past 14 years, I've graduated from high school and college and built a career as a journalist, interviewing some of the most famous people in the country. On the surface, I've created a good life. I've lived the American dream. But I am still an undocumented immigrant. And that means living a different kind of reality. It means going about my day in fear of being found out. (2) The story of the Pulitzer-Prize winning journalist and undocumented immigrant, Jose Antonio Vargas, gives a face to the controversial and political debate about the educational rights of undocumented children who come as minors to live illegally in the U.S. with their parents. These undocumented children, approximately 65,000, (3) grow up as socially and culturally American as the American citizen children they sit next to in school. However, due to the undocumented and illegal status of these children, their future opportunities are much bleaker than their American citizen classmates. Under the current U.S. immigration laws, undocumented children face deportation and are frequently denied access to higher education, either through state legislation that prohibits their enrollment into college in their home state, or through the exorbitant costs for tuition they must pay, because they are denied access to federal aid and loans.

   In 2001, American legislators introduced a bill called the Development, Relief, and Education for Alien Minors ("DREAM") Act. (4) The DREAM Act has never been made law and has been re-introduced in almost every subsequent federal legislative session. (5) The DREAM Act, as it stands today, would provide conditional permanent residency to certain illegal alien applicants who graduate from U.S. high schools, are of good moral character, arrived in the U.S. illegally as minors, and have been residing in the U.S. continuously for at least five (5) years prior to the bill's enactment. (6) The reaction to the proposed DREAM Act has been divisive and highly-politicized. (7)

   Failure to pass a version of the DREAM Act at the federal level has opened the door for many state legislatures to address the issue of undocumented students and their access to higher education on a state-by-state basis. Some states have responded with state legislation, such as New York's proposed New York Dream Act and California's proposed California Dream Act (the latter of which was recently signed into law), that have allowed for undocumented students to receive access to educational opportunities such as those provided for in the DREAM Act. (8) Other state responses, such as Alabama's, with the recent passage of the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, contain provisions that deny undocumented students access to higher education and verge on racial profiling. (9)

   The DREAM Act proposes higher education rights for certain undocumented students and touches on a variety of human rights issues, including the right to education and the right to be free from discrimination on the basis of national origin. Assessing the legal basis for these rights, at the international and U.S. domestic level, offers a perspective and focus that is frequently overshadowed by the political elements of the debate over undocumented students and American public schools.

   An evaluation of the international human rights framework highlights an individual rights-based approach that identifies particular social, cultural, political, and economic rights as they pertain to children. Additionally, it reinforces the importance and fundamentality of the individual rights themselves, primarily, the right to education and the right to be free from discrimination. An evaluation of the U.S. domestic legal framework yields a less-defined human rights system, that, while centered on the "best interests of the child" standard, does not embrace the protection of individual (positive or negative) education rights. Indeed, the U.S. has not ratified the Convention on the Rights of the Child, nor has it recognized a fundamental right to education. (10) Given these limitations, the basis for passing the DREAM Act and granting undocumented students rights to higher education seems to stem from the Equal Protection Clause in the U.S. Constitution and freedom from discrimination in the international human rights framework.

   This article argues that by denying undocumented children access to higher education, the U.S. government is violating their obligations under the Universal Declaration of Human Rights ("UDHR") and Universal Covenant on Civil and Political Rights ("UCCPR"), as they relate to discrimination of social groups on the basis of national origin. Furthermore, by denying undocumented students access to higher education which is afforded to their American contemporaries, and is provided by the DREAM Act, these undocumented students are being discriminated against participating and contributing in American society and civic life and are being denied the equality of educational opportunity. The right to education, while not recognized as a fundamental right by the U.S. Constitution, is an important driver in American society for creating a less discriminatory and class-based society. (11) For this reason, the U.S. Congress should pass the DREAM Act.

   This paper will argue that the U.S. has both international and national legal obligations (12) to pass the DREAM Act and further protect undocumented students who qualify under the DREAM Act right to equal access to higher education. Section II of this paper will examine the history of the DREAM Act, the provisions of the DREAM Act of 2011, and the states' individual responses to this issue, with a particular focus on the New York, California, and Alabama bills respectively. Section III of this paper will discuss the U.S. Constitutional framework as it relates to education and undocumented students. Section IV will examine the lack of educational opportunity for undocumented students in the U.S. and how that translates into a lack of meaningful participation in modern American civic society. Section V will discuss the intersection between the U.S. and international human rights frameworks. Section VI will examine general international human rights framework generally, and as related to the rights of children and the Convention on the Rights of the Child ("CRC").

   Section VII of this paper will discuss the right to education within the international human rights framework. Section VII of this paper will discuss the obligations that the U.S. has under international human rights law to avoid discrimination.

2. THE DREAM ACT OF 2011

   1. LEGISLATIVE HISTORY OF DREAM ACT

      In 2001, a very similar bill to the DREAM Act was introduced during the 107th Congress as H.R. 1918 and S. 1291 in the House of Representatives and in the Senate, respectively. (13) The 2001 bills did not successfully pass through the House or the Senate. On July 31, 2003, Senators Orrin Hatch and Richard Durbin first introduced a bill named the "DREAM Act" in the 108th Congress. (14) The DREAM Act initially passed through the Senate Judiciary Committee in October 2003, by a 16-3 vote. (15) The final version of the DREAM Act that actually passed through the Senate Judiciary Committee in 2003 also included controversial amendments proposed by Senators Charles Grassley (R-IA) and Dianne Feinstein (D-CA). (16)

      During the 108th Congress, there was never a full Senate vote on the DREAM Act; accordingly, the Act was reintroduced on November 18, 2005 during the 109th Congressional session. (17) In 2006, the DREAM Act appeared as an amendment to the Comprehensive Immigration Reform Act of 2006, a bill designed to produce long-term solutions to illegal immigration problems. (18) On May 25, 2006, the Senate passed the Comprehensive Immigration Reform Act by a 62-36 vote, (19) but it failed to become law because both houses of Congress could not agree on what the bill should contain. This failure to enact this bill during the 109th Congressional session in 2006 resulted in Senator Durbin making it a personal goal for the 210th session. (20) In September 2007, Durbin filed to place the DREAM Act as an amendment to the Department of Defense Authorization Bill (S. 2919). (21)

      The following month, Durbin, along with Republican co-sponsors Senators Charles Hagel and Richard Lugar, introduced a new version of the DREAM Act. (22)...