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Defending the Defensible

Texas’s college tuition policy is not the abomination Mitt Romney claims.

Oct 10, 2011, Vol. 17, No. 04 • By JONATHAN V. LAST
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Rick Perry is not always his best defender. For the last two weeks, Mitt Romney has hammered Perry over a Texas law the governor signed which allows children of illegal immigrants to pay in-state college tuition. At the Orlando debate, for instance, Romney said sardonically, “To go to the University of Texas, if you’re an illegal alien, you get an in-state tuition discount. You know how much that is? That’s $22,000 a year. Four years of college, almost $100,000 discount if you are an illegal alien, go to the University of Texas. If you are a United States citizen from any one of the other 49 states, you have to pay $100,000 more. That doesn’t make sense to me.”

Cartoon of Mitt Romney getting angry while a college student does homework

Thomas Fluharty

In his defense Perry dolefully concluded, “if you say that we should not educate children who have come into our state for no other reason than they’ve been brought there by no fault of their own, I don’t think you have a heart.”

Well then. Perry would have done better to describe the program, explain its legislative history, how it works, and its effects. Because the Texas law is more complicated than Romney suggests and more interesting than you might think.

To understand Perry’s law, you have to go back to the 1982 case Plyler v. Doe. In it the Supreme Court struck down a 1975 Texas statute which prohibited local school districts from spending money on the children of illegal residents. The effect of the verdict was to create a national mandate entitling all children in America, regardless of their immigration status, to a K-12 public education.

As Plyler was being contested, the inflow of illegal immigrants to the United States was ramping up, eventually leading to the 1986 amnesty signed by President Reagan that legalized 2.7 million of them. After the amnesty, illegal immigration from Mexico and South America surged to even higher levels. By 2004, more than 10 million people​—​nearly a third of America’s entire foreign-born populace​—​were in the country illegally. Of this shadow population, 57 percent hailed from Mexico and 24 percent from elsewhere in Latin America.

This group included well over a million children and, because of Plyler, they were now going to primary and secondary schools. Which meant that by the mid-’90s there was, for the first time in American history, a large pool of illegal residents who had been educated from the start in American schools and were, at least theoretically, eligible to attend college.

The push to help illegals go to college began at the grassroots level. In 1998 the Dallas County Community College District unilaterally decided to charge illegal residents who had graduated from local high schools the in-state tuition rate. Community college districts in Houston and other locales quickly followed suit. Three years later, the state legislature took up a bill (H.B. 1403) which extended the same benefit to all undocumented Texas children, provided they pass four requirements: (1) They must have resided with a parent or guardian while attending high school in Texas; (2) they must have graduated from a Texas high school or have a GED; (3) they must have gone to high school in Texas for at least the three previous years; and (4) they must file an affidavit testifying that they would apply for permanent residency as soon as possible. The Texas House passed the bill 142-1; the Senate passed it 30-0. Perry signed it into law in June 2001.

As the roll call demonstrates, the law wasn’t particularly controversial. Texas Democrats loved it, because it hit a liberal trifecta: identity politics, government subsidies, and the institutionalization of higher education. Texas Republicans had slightly more nuanced reasons for supporting it, none of which would be immediately apparent to Republican observers from, say, Massachusetts.

For starters, Texas Republicans understood that tuition isn’t all that important to the state university system. Texas schools are funded largely by the state sales tax, which everyone​—​both legal and illegal residents​—​pays. (Texas has no state income tax; most revenues come from consumption taxes.) Republicans argued that, as a matter of fairness, illegal immigrants had been funding the colleges just like everybody else. (This relative unimportance of tuition as a funding source is why both in-state and out-of-state tuition rates at Texas schools are far below the national average.)

Another reason was Texas’s Permanent University Fund, which National Review’s Kevin Williamson charmingly explains: “Early in the 20th century, the state of Texas gave the universities a whole bunch of land, which turned out to have a whole bunch of oil on it, and West Texas is full of wells bobbing up and down and pumping grade-A education out of the ground.” In other words, tuition at most Texas schools is used more to control enrollment than to raise funds.

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