Lately, Florida headlines have been filled with conservative political leaders coming out in support of DREAMers -- those high school and college-aged youngsters who came to this country, often as infants, with their migrant-worker families. Just over a week ago, for instance, Republican House Speaker Will Weatherford gave his support to passing a bill to allow in-state tuition for DREAMers attending public colleges and universities. Govenor Rick Scott shortly thereafter said he would consider signing such a measure. Scott's comments were particularly noteworthy because he originally ran for governor supporting Arizona-like immigration reform. While such support, especially from leaders of the party controlling Florida's legislature, is refreshing for immigration and higher education supporters alike, these supporters miss a crucial fact: There is simply no need to pass a law on the matter.
The above claim may lead some to believe this essay is in opposition to the DREAMer cause, but nothing could be further from the truth. The point is that relevant Florida law already unequivocally supports the right of deferred action recipients to in-state tuition. While what follows may be slightly confusing to some, and has even confused one of the country's top law firms hired to advise our state's flagship university, let's examine the issue.
First, in order for individuals to claim in-state tuition for public college and university purposes, they must, establish that they are residents or that they have established domicile in the state. (See Fl. Stat. 1009.21 -- determination of resident status for tuition purposes). This very section explicitly provides that "legal resident" or "resident" means a person who has maintained his or her residence in this state for the preceding year... or has established a domicile in this state pursuant to s. 222.17.
Thus, the determining factor for residency is establishing that one has lived in the state for at least one year. While some anti-immigrants, or just plain doubting Thomas's may argue "these kids are illegal, and therefore cannot establish 'legal residency.'" Sadly for this gang, they are just wrong. Nothing other than the United States Supreme Court addressed this matter in Plyler v. Doe, 457 U.S. 202 fn. 22 (1982). The Plyler Court explicitly rejected the exact same argument, noting:
"It is thus clear that [the state's] residence argument amounts to
nothing more than the assertion that illegal entry, without
more, prevents a person from becoming a resident for
purposes of enrolling his children in the public schools.
A State may not, however, accomplish what would otherwise
be prohibited by the Equal Protection Clause, merely
by defining a disfavored group as nonresident. And illegal
entry into the country would not, under traditional criteria,
bar a person from obtaining domicile within a State."
Furthermore, the federal government's Citizenship and Immigration Service website states, "While your deferred action is in effect and, for admissibility purposes, you are considered to be lawfully present in the United States during that time."
The relevant Florida regulation likewise provides, "Any person who shall have established a domicile in this state may manifest and evidence the same by filing in the office of the clerk of the circuit court for the county in which the said person shall reside, a sworn statement showing that he or she resides in and maintains a place of abode in that county which he or she recognizes and intends to maintain as his or her permanent home."
And for those still not convinced, relevant Florida Administrative Code allows for a host of non-traditional/non-permanent immigrant residents to claim in-state tuition. Specifically, providing:
"(1) A non-United States citizen may be eligible to establish
residency for tuition purposes if evidence is presented
verifying that he or she is legally present in the United States,
has met the residency requirements of Section 1009.21, F.S.,
and the person is one of the following:
(b) A permanent resident alien, parolee, asylee, Cuban-Haitian
entrant, or other legal alien granted an indefinite stay in the
United States. The student, and parent if the student is a
dependent, must present evidence of legal presence in the
Accordingly, the above authority establishes that Florida deferred action recipients, provided they have had that status for at least one year, have lived in Florida for at least one year, and have obtained a sworn statement from their county clerk stating they intend to maintain their residency in this state, are unquestionably entitled to in-state tuition. While Florida lawmakers' recent statements supporting legislation to allow DREAMers in-state tuition is laudable, Florida law already permits it.