| When an alien is a legal resident of the United States, that alien, and his or her children, has the right to education in United States schools. An issue arises with illegal, or undocumented, aliens. This issue is a "hot topic" in many areas of the country where immigration is heavily present.
Public Schools
Primary Education
The United States Supreme Court ruled in 1982 that children of illegal aliens have a constitutional right to free public education. The Court, which was dealing with elementary and high school aged children, based its decision on the equal protection clause of the U.S. Constitution, which applies to any "person" as opposed to specifying its protections for U.S. citizens. Public schools, therefore, can not deny admittance to an illegal alien on the basis of their alien status.
Secondary Education
In California, "Proposition 187" would have denied post-secondary, meaning college or beyond, public education to illegal aliens. This is the only such attempt by a state to deny this educational opportunity to illegal aliens. A federal court struck down the law as invalid on the basis that it contradicted federal laws against such prohibitions. The federal law preempted the state law because the United States Constitution's Supremacy Clause dictated that federal law was the supreme law of the land and states can not enact laws that conflict with federal laws.
Another issue with respect to illegal aliens and post-secondary education comes from a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). IIRIRA forbade states from providing in-state tuition to illegal aliens unless the state provided such in-state tuition to out-of-state applicants. Because most schools could not afford to provide in-state tuition to all applicants, in-state tuition is denied to illegal aliens. In addition, under other federal laws, federal grants, loans, and other programs to pay for education are not available to illegal aliens. Thus, on a practical level, post-secondary education is not easily attainable for illegal immigrants.
Private schools
There is not a clear-cut rule regarding admission of illegal aliens to private schools. These schools are not bound by federal or state law on the subject unless they accept government funds. For the relatively few schools that do not accept any funding for financial aid, these schools are not permitted to discriminate on any basis listed in the Civil Rights Act of 1964, but citizenship is not one of the bases listed.
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