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III. Education

Any estimate of state costs associated with undocumented immigrants is imprecise due to the difficulties involved in determining their numbers. In public education, federal guidelines prohibit questions of legal status. In higher education, state residency for tuition purposes is defined by the length of time an individual has lived in the state, regardless of legal status.

Public Education Costs

Until 1982, Texas law prohibited local school districts from using state funds to educate undocumented immigrant children; furthermore, districts were allowed to deny enrollment to such children. In 1982, however, the Texas law was deemed unconstitutional. In Plyler v. Doe, the U.S. Supreme Court ruled that Texas law violated the equal protection provisions of the 14th Amendment. As a result of Plyler v. Doe, states may not deny access to public education to immigrant children residing within their boundaries, regardless of their legal status.[10] Subsequent court cases resulted in prohibitions against attempts to identify undocumented children because of the perception that they could then be discriminated against.

As a result of the state school funding formulas, the cost ($7,085) of any student added to the enrollment of a local school district is borne by the state, regardless of legal status. Because the state system of school finance treats local property tax revenue as interchangeable with appropriated state funds, local and state costs are combined in the cost per student.

The Comptroller’s office estimates that there were about 135,000 undocumented children in Texas public schools during the 2004-05 school year, or about 3 percent of total public school enrollment. Dr. Jeffery Passel of the Pew Hispanic Center estimated that there were 140,000 undocumented students in Texas public and private schools in 2001-02.[11] Applying the eight percent growth in total student enrollment from 2001-02 to 2004-05 school year (fiscal 2005) to the estimated 140,000 undocumented students resulted in an estimated 151,182 students in 2004-2005. A U.S. Government Accountability Office report’s estimates that 89.3 percent of Texas students are enrolled in public school. That was applied to the estimated number of undocumented children in school, resulting in an estimated 135,013 undocumented students in Texas public schools.[12]

The Texas Education Agency reports that, during 2004-05, the average state and local expenditure per student was $7,085 (this excludes federal funds). Applying this figure to the estimated number of undocumented immigrant children in public schools, the Comptroller estimates that the cost of educating undocumented children in 2004-05 was slightly less than $957 million (Exhibit 3).

EXHIBIT 3
Public Education Cost Comparison

  FAIR 1999-2000 FAIR 2003-2004 Comptroller 2000-2001 Comptroller 2004-2005
Avg. Cost Per Student $6,288 $7,450 $6,447 $7,085
Est. Number of Undocumented Immigrants 164,000 225,000 125,000 135,000
Total Cost $1.03 billion $1.68 billion $806 million $957 million

Note: FAIR’s estimates include federal dollars.
Sources: Federation for American Immigration Reform and Carole Keeton Strayhorn, Texas Comptroller of Public Accounts.

This estimate may be conservative, in that other reports have estimated higher costs. The 2004 report by the U.S. Government Accountability Office referenced earlier stated that Texas, in response to a survey, estimated these costs at $932 million in 1999-2000. Applying increases in enrollment and cost per student, this figure implies 2004-05 costs of nearly $1.2 billion. A more recent report by the Federation for American Immigration Reform (FAIR) estimates Texas’ costs at nearly $1.7 billion for the 2003-04 school year.[13] These estimates, however, include federal spending, which the Comptroller’s office has excluded, as this report focuses on state costs.

In addition, the varying estimates assume different numbers of undocumented children in public schools. FAIR estimated that Texas public schools educated 225,000 undocumented children in 2003-04, substantially more than the Comptroller’s estimate. FAIR based its estimate on a 1994 Urban Institute estimate of 93,907.[14] One of the authors of that Urban Institute estimate is Dr. Passel, whose estimate of 140,000 was used in the Comptroller’s calculation.

Higher Education Costs

The number of undocumented immigrants attending college in Texas also is unknown, as is the number of those paying in-state tuition rates, and thus the relevant costs to the state are difficult to estimate.

Prior to fall 2006, students who were not citizens or permanent residents of the U.S. (whether documented or not) still could become classified as Texas residents and thus be entitled to in-state college tuition rates under the provisions of Section 54.052(j) of the Texas Education Code, originally enacted by the 2001 Legislature as House Bill (H.B.) 1403. Prior to H.B. 1403 being signed into law in 2001, these students would have been considered international students, and therefore would have paid the more costly out-of-state tuition.

To qualify, the student must have lived in the state for at least three years before graduating from a Texas high school or receiving a high school equivalency diploma in Texas. The student also must have lived for at least part of that time with a parent or legal guardian and could not have an established residence outside of Texas. In addition, such students were required to sign an affidavit stating that they would apply for permanent residency as soon as they are eligible to do so.

The 2005 Legislature revisited the issue of resident status via Senate Bill (S.B.) 1528, which made residency requirements essentially uniform for all students, regardless of their legal status. As of fall 2006, anyone who has lived in Texas for three years before graduating or receiving a diploma equivalent from a high school, and has also lived in the state for a year prior to enrollment in college, qualifies for in-state tuition as a Texas resident. Any student who is not a U.S. citizen or permanent resident still must sign the affidavit concerning permanent residency. Exhibit 4 compares previous and current law on this issue.

EXHIBIT 4
A Comparison of Provisions of H.B. 1403 and S.B. 1528 for Establishing Texas Residency

H.B. 1403 Requirements To become residents, must (2001) S.B. 1528 Requirements (2005)
1. have resided with a parent or legal guardian or conservator during at least a portion of the 3 years leading up to high school graduation or the receipt of a GED certificate. n/a
2. have graduated from a public or private high school or received the equivalent of a high school diploma in this state; same
3. have resided in this state for at least three years as of the date the person graduated from high school or received the equivalent of a high school diploma; same
4. have registered as an entering student in an institution of higher education not earlier than the 2001 fall semester; n/a
5. provide to the institution an affidavit stating that the individual will file an application to become a permanent resident at the earliest opportunity the he or she is eligible to do so; and Only required if student is not a U.S. Citizen or Permanent Resident
6. have not established a residence outside this state Must have lived in Texas the 12 months prior to enrollment.

Note: Opportunity available to all persons meeting these requirements, whatever their citizenship or INS status, including U.S. Citizens and Permanent Residents.
Source: Texas Higher Education Coordinating Board.

According to the Texas Higher Education Coordinating Board, in fall 2001, 393 students attended institutions of higher education as Texas residents based on Section 54.052(j) of the Education Code; of these, 300 attended community colleges. In fall 2004, nearly 10 times as many students received in-state rates due to Section 54.052(j) provisions—3,792, more than 75 percent of whom attended community colleges (Exhibit 5).

As noted in Exhibit 5, average state funding per student fell between 2001 and 2004. Consequently, state costs did not go up at the same rate as the number of students; instead, there was about a 446 percent increase in total state funding for these students from 2001 to 2004. The 3,792 students in fall 2004 comprised 0.36 percent of total enrollment in the state’s public institutions in 2004 (1,054,586 students in all).

EXHIBIT 5
Cost to State of Non-Citizen College Student Classified as Texas Residents

  Fall 2001 Avg. State Cost per Student Fall 2001 Resident Students Fall 2001 Total Fall 2004 Avg. State Cost per Student Fall 2004 Resident Students Fall 2004 Total
Universities $5,366 64 $343,424 $4,816 747 $3,597,552
Health Related Inst. $31,693 29 $919,097 $25,237 16 $403,792
Community Colleges $2,627 300 $788,100 $2,239 2,894 $6,479,666
Tech. Colleges   0   $5,509 120 $661,080
State Colleges   0   $4,265 15 $63,975
Total   393 $2,050,621   3,792 $11,206,065

Sources: Texas Higher Education Coordinating Board and the University of Texas System.

It should be noted that these numbers are for all students who established residency for in-state rates under Section 54.052(j), regardless of their immigration status; not all were undocumented immigrants, despite the fact that the media often describes them as such. There are many types of visas for non-immigrants that could allow a foreign student to fulfill the residency requirements for in-state tuition; for example, the children of ambassadors and diplomats, or their employees. The Comptroller’s office cannot determine the share of Section 54.052(j) students representing undocumented immigrants. If all these students were undocumented, the cost to the state in fiscal 2005 would have been $11.2 million.

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