Michael Olivas with Latino Faculty and staff during his recent visit to Ohio State University.

Dr. Michael Olivas, an OSU alumnus, is an expert in immigration law and higher education, and the William B. Bates Distinguished Chair in Law at the University of Houston and Director of the Institute for Education Law and Governance at UH. Recently, he delivered a public lecture at OSU where he reviewed legal issues arising between faculty and students in the classroom. Dr. Olivas also discussed issues related with access and diversity in higher education, among them, the DREAM Act, with students, faculty and staff. Below is an abbreviated version of an article published by Bender’s Immigration Bulletin.

In a series of articles beginning twenty years ago, I began to review the complex practices and conflicting policies to track college residency issues.

As difficult as it is to negotiate the application and admissions process to college, it is even more daunting to navigate the process of providing residency, as thousands of students each year discover. Then, add the overlay of immigration and nationality law, and you have a patchwork of dissimilarity and injustice […]. In many respects, the residency laws, implementing regulations, and state and institutional practices are often illogical, inconsistent, and confusing […]. Additionally, these complicated technical requirements almost always work against aliens, especially undocumented aliens, who may have no reason to know or confront their unauthorized status until they apply to college.

Whatever […] [Proposition 187] meant in practice, there is no doubt that, by 1996, things looked bleak for those who advocated for undocumented college students. By then, Texas and California, the two largest immigrant-receiver States, had banned these students from in-state tuition classification as residents, and federal legislation was in place that appeared to preempt State efforts to enact such a benefit.

In the interim between the injunction issued to stay Proposition 187’s implementation and the appeals court settlement, […], Congress enacted IIRAIRA, which appeared to the court to preempt state efforts to allow the undocumented any resident-tuition benefits.

[…] only a few States have changed their practice post-IIRAIRA and enacted statutes to allow the undocumented to attend college as resident students, the major receiver States have done so, and it is likely that political pressure will continue to fill in the empty spots on the map, at least the spots where the undocumented are likely to enroll.

If the DREAM Act were passed in its present form: (1) It would repeal §505 of IIRAIRA, which has come to discourage some States from offering in-state, resident tuition to all student who graduate from their high schools. The repeal would be retroactive, as if §505 never had been enacted. (2) It would allow eligible undocumented students (those who entered the U.S. before they were 16 years old) to begin the path toward legalization through a two-step process.

There has been a surprising amount of litigation and, recently, legislation on this arcane matter –a subject that affects only a few students, but extremely vulnerable ones. […] Ironically, the DREAM Act provisions, introduced by a conservative Republican senator, are more generous than any of the state laws enacted to ameliorate this problem, and of course, the amnesty provisions to allow the undocumented students to legalize their status would be generous. […] It is likely that this issue will be resolved by a combination of state and federal laws, even with the specter of September 11 casting its long shadow.