Unit 6: Dicussion
qtavnf10901
unit_6.pdf
LAW SUMMARY
“Show Me” Your Legal Status: A
Constitutional Analysis of Missouri’s
Exclusion of DACA Students from
Postsecondary Educational Benefits
BRITTENY PFLEGER*
I. INTRODUCTION
More than 130 years ago, Emma Lazarus penned these legendary words:
“Give me your tired, your poor, Your huddled masses yearning to breathe
free . . . .”1 This passage from the poem The New Colossus embodies the
Statue of Liberty’s optimistic “welcome” to the world’s disenfranchised peo-
ple.2 Its meaning gives a sense of hope to the roughly 1.2 million undocu-
mented young people3 who were given the opportunity to become legally
present in the United States through the Deferred Action for Childhood Arri-
vals (“DACA”) program.4 Through the DACA program, undocumented
young people can receive a social security number, obtain a work permit, and
register for state benefits, such as in-state tuition and state scholarships.5
* B.S., University of Missouri, 2014; J.D. Candidate, University of Missouri School
of Law, 2017. Associate Managing Editor, Missouri Law Review, 2016–2017. I
would like to thank Professor Christina Wells for her guidance and support in the
development of this Note. I would also like to thank Dean Robert Bailey and Mr.
Roger Geary for their mentorship and guidance. Finally, I would like to thank my
family for their love, support, and inspiration throughout the years.
1. A Young Poet Captures the Essence of Lady Liberty, STATUE LIBERTY-ELLIS
ISLAND FOUND., INC., (quoting EMMA LAZARUS, THE NEW COLOSSUS (1883)),
http://www.libertyellisfoundation.org/the-new-colossus (last visited Mar. 24, 2016).
2. Id.
3. “Young people” as used in this Note refers to DACA applicants between the
ages of fifteen and thirty-four. See Consideration of Deferred Action for Childhood
Arrivals (DACA), U.S. CITIZENSHIP & IMMIGRATION SERVICES, http://www.uscis.gov/
humanitarian/consideration-deferred-action-childhood-arrivals-daca (last updated
Aug. 3, 2015) (the executive order creating the DACA program requires applicants to
be born on or after June 16, 1981 and be at least fifteen years old at the time of appli-
cation).
4. Zenen Jaimes Pérez, How DACA Has Improved the Lives of Undocumented
Young People, CTR. AM. PROGRESS (Nov. 19, 2014), https://cdn.american
progress.org/wp-content/uploads/2014/11/BenefitsOfDACABrief2.pdf.
5. Id.
606 MISSOURI LAW REVIEW [Vol. 81
Juan Sanchez, a Kansas resident who emigrated with his family from
Mexico at the age of two, is one such undocumented individual granted
DACA status.6 Sanchez graduated with honors from Kansas City Kansas
Community College in the spring of 2015.7 Through the University of Mis-
souri-Kansas City Metro Rate program,8 Sanchez enrolled in the Henry W.
Bloch School of Management at the University of Missouri-Kansas City as an
in-state resident.9 Sanchez worked two jobs to pay for his full-time tuition.10
However, Missouri’s new budget bill swiftly put an end to Sanchez’s, and
other Missouri DACA recipients’, ability to afford a college education.
Missouri passed House Bill 3 (“HB 3”) in the spring of 2015, becoming
one of two states to exclude DACA recipients from in-state tuition and state
scholarship funding.11 The higher education budget bill declared that public
institutions would receive state funding provided that no public institution
offered a student with unlawful immigration status less than the international
tuition rate, nor expended scholarship money on his or her behalf.12 Senate
Bill 224 (“SB 224”), a proposal requiring that individuals who receive the A+
Scholarship have legal status, was subsequently passed the same year.13 As
DACA students claim lawful presence but not lawful status, they are subject
to increased tuition and receive no funding, despite meeting Missouri’s resi-
dency requirements.
This Note discusses how Missouri’s exclusion of in-state tuition and
state scholarship funding affects DACA students and concludes the Missouri
legislature’s proposal violates the Fourteenth Amendment’s Equal Protection
Clause. Part II explores the DACA program and its effects on both DACA
individuals and society; it then lays out Missouri law on higher education
6. Mará R. Williams, Missouri Immigrant “Dreamers” are Still Seeking Help
for In-State Tuition Fight, KAN. CITY STAR (July 24, 2015),
http://www.kansascity.com/news/local/article28671514.html.
7. Id.
8. See UMKC Metro Rate for Neighboring Counties, U. MO.-KAN. CITY,
http://www.umkc.edu/metrorate/ (last visited Mar. 24, 2016) (“That’s why we say
Border Schmorder and offer the UMKC Metro Rate to eligible*
UNDERGRADUATE and GRADUATE students in 11 neighboring Kansas Coun-
ties.”).
9. Williams, supra note 6.
10. Id.
11. H.R. 3, 98th Gen. Assemb., 1st Reg. Sess. (Mo. 2015). The proposed budget
for the 2016–17 fiscal year contains identical language in the preamble. H.R. 2003,
98th Gen. Assemb., 2d Reg. Sess. (Mo. 2016). House Bill 2003 has passed in both
the Missouri House of Representatives and the Senate. Activity History for HB 2003,
MO. HOUSE OF REPS.,
http://www.house.mo.gov/billactions.aspx?bill=HB2003&year=2016&code=R (last
updated Apr. 4, 2017). It is awaiting approval of amendments in the House before
being sent to the Governor for his signature. Id.
12. Id.
13. See S. 224, 98th Gen. Assemb., 1st Reg. Sess. (Mo. 2015); MO. ANN. STAT.
§ 160.545 (West 2016).
2016] “SHOW ME” YOUR LEGAL STATUS 607
benefits, both prior to and after the passage of HB 3 and SB 224. Next, Part
III details the process used to evaluate equal protection claims based on im-
migration status. Part IV scrutinizes the legislation under equal protection
case law, ultimately concluding in Part V that HB 3 and SB 224 violate the
U.S. Constitution and deprive DACA students, such as Sanchez, of their right
to equal protection of the law.
II. DACA, MISSOURI, AND THE EFFECTS OF CHANGES IN THE LAW
This Part explores the creation of the DACA program and the impact of
lawful presence on both undocumented immigrants and American society. It
then discusses Missouri’s historically inclusive laws granting education bene-
fits to lawfully present individuals. Finally, this Part lays out the recent
changes in Missouri law excluding lawfully present individuals from receiv-
ing in-state tuition and state financial aid.
A. Deferred Action for Childhood Arrivals
On June 15, 2012, President Obama announced a new executive order
deferring deportation actions for undocumented youth who immigrate to the
United States.14 Upon fulfilling governmental requirements to receive
DACA status, an applicant to the program becomes legally present for two
years.15 Roughly 1.2 million undocumented young people were eligible for
14. See Pérez, supra note 4. The President announced an expansion of DACA in
November 2014, shortening the required period of presence in the United States from
2007 to 2010 and eliminating the requirement that an immigrant must be born after
1981. Executive Actions on Immigration, U.S. CITIZENSHIP & IMMIGRATION
SERVICES, http://www.uscis.gov/immigrationaction#top (last updated Apr. 15, 2015).
Nevertheless, a federal court’s temporary injunction, issued February 16, 2015, sus-
pended the expansion. Id. The Supreme Court has agreed to consider whether (1)
states have the right to file a lawsuit against an executive order and, if so (2) whether
the Obama administration has the authority to create new immigration policy. Amy
Howe, Court will review Obama administration’s immigration policy: In Plain Eng-
lish, SCOTUSBLOG (Jan. 29, 2016, 4:39PM), http://www.scotusblog.com/
2016/01/court-will-review-obama-administrations-immigration-policy-in-plain-
english/. See also United States v. Texas, SCOTUSBLOG,
http://www.scotusblog.com/case-files/cases/united-states-v-texas/ (last updated Mar.
8, 2016). For the purposes of this Note, the DACA statistics exclude individuals
eligible under the 2014 requirements.
15. Consideration of Deferred Action for Childhood Arrivals (DACA), supra
note 3. Requirements to be eligible for DACA status include: (1) must be under the
age of 31 as of June 15, 2012; (2) came to the United States before reaching the age
of 16; (3) physically present in the United States on June 15, 2012 and had no lawful
status; (4) currently in school, completed high school or obtained a GED, or honora-
bly discharged from the Armed Forces or Coast Guard of the United States; and (5)
no felony or significant misdemeanor convictions. Id. DACA recipients can apply
for renewal during the existing period of DACA status if it is expiring. Id.
608 MISSOURI LAW REVIEW [Vol. 81
the DACA program in 2012.16 As of June 30, 2015, the U.S. Citizenship and
Immigration Services (“USCIS”) granted DACA status to 770,873 appli-
cants.17 In Missouri, an estimated 13,000 students were eligible for DACA
status in 2015; approximately 6000 students were immediately eligible for
DACA status.18 In June 2015, the USCIS granted DACA status to a cumula-
tive total of 3033 first-time Missouri applicants.19
The federal government considers DACA individuals to be lawfully pre-
sent in the United States for the two years they hold DACA status.20 By re-
ceiving DACA status, an individual stops accruing unlawful presence, a fac-
tor used by immigration officials when processing visas to the United
States.21 Lawful presence is different than lawful status: individuals with
lawful status are legally recognized individuals authorized to reside in the
United States.22 While the DACA program confers legal presence, it does not
change an individual’s unlawful status.23 Instead, the U.S. Department of
Homeland Security (“DHS”) grants DACA individuals “periods of stay.”24
16. Pérez, supra note 4.
17. Consideration of Deferred Action for Childhood Arrivals (DACA), supra
note 3.
18. Children under the age of fifteen are not immediately eligible, but will age
into the program. See Pérez, supra note 4. Including these children, an estimated
13,000 eligible people reside in the state. Public Hearing #2 – St. Louis, MO. DEP’T
HIGHER EDUC. (Dec. 11, 2015), http://dhe.mo.gov/documents/PublicHearing
2STLSummary.pdf.
19. Consideration of Deferred Action for Childhood Arrivals (DACA), supra
note 3.
20. Consideration of Deferred Action for Childhood Arrivals Process: Frequent-
ly Asked Questions, U.S. CITIZENSHIP & IMMIGRATION SERVICES,
http://www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-
process/frequently-asked-questions (last updated June 15, 2015).
21. See Interoffice Memorandum from Donald Neufeld, Lori Scialabba, & Pearl
Chang, U.S. Citizenship & Immigration Services to Field Leadership (May 6, 2009),
http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memo
randa/2009/revision_redesign_AFM.PDF. Congress created three- and ten-year bars
to admissibility based on the amount of unlawful time an individual spends in the
United States. Id. If an alien is unlawfully present for more than 180 days, but less
than one year, he or she cannot be admitted to the United States for three years. Id.
Aliens who are unlawfully present for more than one year will be denied admittance
to the United States for ten years. Id. A minor does not accrue unlawful presence for
purposes of this bar until his or her eighteenth birthday. 8 U.S.C.A. §
1182(a)(9)(B)(iii) (West 2016).
22. See 6 C.F.R. § 37.3 (2015) (“A person in lawful status is a citizen or national
of the United States; or an alien lawfully admitted for permanent or temporary resi-
dence in the United States . . . .”).
23. Consideration of Deferred Action for Childhood Arrivals Process: Frequent-
ly Asked Questions, supra note 20.
24. Id.
2016] “SHOW ME” YOUR LEGAL STATUS 609
Upon approval, DACA immigrants can apply for two-year temporary
work permits and Social Security numbers.25 Lawful presence allows undoc-
umented young people to “achieve better economic opportunity, attain higher
education, enroll in health insurance, and participate more in their local
communities.”26 In a 2014 survey, seventy percent of DACA recipients re-
ported getting their first job or starting a new job.27 More than half of partic-
ipants opened their first bank account, and more than one-third obtained their
first credit card.28
However, according to a report conducted by the American Immigration
Council, forty-two percent of DACA respondents reported not completing
their higher education on time due to financial limitations and familial obliga-
tions.29 Further, undocumented students are three times more likely to “stop
out” (leave college for a certain period of time with the intention to return)
than U.S. citizens and documented individuals due to financial difficulties.30
As of July 2015, sixteen state legislatures opened in-state tuition policies
to students with unlawful status in order to reduce “stopping out.”31 Five of
these states also offered state financial assistance.32 Additionally, four state
university systems established policies offering in-state tuition to unauthor-
ized immigrant students.33 For DACA students in these states, efforts to re-
lieve financial burdens create access to higher education. Yet, for students
who live in one of the two states that bars lawfully present DACA students
from in-state benefits, financial barriers still obstruct entrance to postsecond-
ary education.34
25. Pérez, supra note 4.
26. Id.
27. Id.
28. Id.
29. ROBERTO G. GONZALES & ANGIE M. BAUTISTA-CHAVEZ, AM. IMMIGRATION
COUNCIL, TWO YEARS AND COUNTING: ASSESSING THE GROWING POWER OF DACA
(June 2014), http://www.immigrationpolicy.org/sites/default/files/docs/two_years_
and_counting_assessing_the_growing_power_of_daca_final.pdf.
30. Id.
31. Tuition Benefits for Immigrants, NAT’L CONF. ST. LEGISLATURES (Sept. 19,
2015, 5:46 PM), http://www.ncsl.org/research/immigration/tuition-benefits-for-
immigrants.aspx. The state legislatures that enacted laws to allow in-state tuition
include California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Min-
nesota, Nebraska, New Jersey, New Mexico, New York, Oregon, Texas, Utah, and
Washington. Id.
32. Id. The five states that offer state financial assistance are California, New
Mexico, Minnesota, Texas, and Washington. Id.
33. Id. The four university systems with an in-state tuition policy for undocu-
mented immigrants include the University of Hawaii Board of Regents, the University
of Michigan Board of Regents, the Oklahoma State Regents for Higher Education,
and Rhode Island’s Board of Governors for Higher Education. Id.
34. Id.
610 MISSOURI LAW REVIEW [Vol. 81
Alongside the individual benefits DACA applicants receive, federal,
state, and local economies also thrive when immigrants receive DACA status.
Lawfully present immigrants, such as those enjoying the benefits of DACA
status, earn higher wages, which results in overall growth of the U.S. Gross
Domestic Product (“GDP”).35 The Center for American Progress estimates
the resulting increase in GDP will lead to an increase in income for all Amer-
icans - roughly $124 billion in the next decade.36
Likewise, under President Obama’s executive order, DACA recipients
must comply with current tax laws and contribute to the tax revenue.37 Unau-
thorized immigrants in Missouri, including those lawfully present without
legal status, contributed $44 million in state and local taxes in 2010, includ-
ing $8.3 million in income taxes, $31.7 million in sales tax, and $4.1 million
in property taxes.38 However, in spite of the contribution of immigrant tax
dollars to Missouri’s public programs, the ability of immigrants to tap into
these resources exists in a state of flux.
B. Missouri In-State Residency Legislation and Interpretation Prior to
2015
Missouri law delegates the establishment of policies and procedures re-
garding in-state residency status to the coordinating board of the Missouri
Department of Higher Education (“MDHE”).39 The MDHE promulgated that
students shall receive in-state tuition if they establish: (1) presence within the
state of Missouri for at least the past twelve months (2) with the intent to
make Missouri a permanent home for an indefinite time period.40 In addition,
35. The GDP is estimated to increase cumulatively by $230 billion over the next
ten years. Assessing the Economic Interests of Granting Deferred Action Through
DACA and DAPA, CTR. FOR AM. PROGRESS (Sept. 19, 2015, 6:23 PM),
https://www.americanprogress.org/issues/immigration/news/2015/04/02/110045/asses
sing-the-economic-impacts-of-granting-deferred-action-through-daca-and-dapa/.
When President Obama issued an executive order to expand DACA in 2015, he an-
nounced nineteen other immigration directives, including Deferred Action for Parents
of Americans and Lawful Permanent Residents. Id. These recipients are also reflect-
ed in these numbers. Id.
36. Id.
37. MATTHEW GARNER ET AL., THE INST. ON TAXATION & ECON. POLICY,
UNDOCUMENTED IMMIGRANTS’ STATE & LOCAL TAX CONTRIBUTIONS 5 (Apr. 2015),
http://www.itepnet.org/pdf/undocumentedtaxes2015.pdf.
38. The Political and Economic Power of Immigrants, Latinos, and Asians in the
Show-Me State, AM. IMMIGRATION COUNCIL (Jan. 1, 2015), http://www.immigration
policy.org/just-facts/new-americans-missouri.
39. MO. REV. STAT. § 173.005.2(7) (Cum. Supp. 2013) (“The coordinating board
shall establish policies and procedures for institutional decisions relating to the resi-
dence status of students . . . .”).
40. MO. CODE REGS. ANN. tit. 6, § 10-3.010(9)(C) (2016).
2016] “SHOW ME” YOUR LEGAL STATUS 611
noncitizens “must possess resident alien status, as determined by federal au-
thority, prior to consideration for resident status.”41
For purposes of determining “resident alien status,” Missouri looks to
the Internal Revenue Service (“IRS”) rather than immigration law.42 The IRS
considers anyone a resident of the United States for tax purposes if they meet
the “substantial presence test” for the calendar year.43 Under this test, an
immigrant will be considered a resident alien if he or she is physically present
thirty-one days during the current year and 183 days during the past three
years.44 Because DACA applicants are required to live in the United States
continuously since June 15, 2007,45 they fulfill the requirements of “resident
alien status” described by the IRS, therefore qualifying for in-state tuition.46
Under Missouri law, postsecondary educational institutions may award
public education benefits, including institutional financial aid and state-
administered grants and scholarships, to students lawfully present in the Unit-
ed States upon verifying their documentation.47 DACA students who present
certification from the DHS qualify for Missouri’s postsecondary public bene-
fits.48 However, some state scholarships, such as Missouri Access and Bright
Flight, explicitly require lawful status to receive assistance.49
In 2014, the question arose as to whether lawfully present students who
otherwise meet the residency requirements would be eligible for funding
from the A+ Scholarship Program.50 The A+ program grants scholarships to
“graduates of A+ designated high schools who attend a participating public
community college or vocational/technical school.”51 The MDHE recognized
41. Id. § 10-3.010(7)(A).
42. E-mail from Anthony Rothert, Legal Dir., ACLU, to author (Oct. 29, 2015,
9:43 AM) (on file with author).
43. See Determining Alien Tax Status, IRS, https://www.irs.gov/Individuals/
International-Taxpayers/Determining-Alien-Tax-Status (last updated Dec. 1, 2015).
44. See Substantial Presence Test, IRS, https://www.irs.gov/Individuals/
International-Taxpayers/Substantial-Presence-Test (last updated Dec. 16, 2015).
45. Consideration of Deferred Action for Childhood Arrivals Process: Frequent-
ly Asked Questions, supra note 20.
46. See Tuition Benefits for Immigrants, supra note 31, at 8.
47. See MO. REV. STAT. § 173.1110 (Cum. Supp. 2013).
48. Coordinating Bd. for Higher Educ., Agenda Item Summary, MO. DEP’T
HIGHER EDUC. (Sept. 4, 2014, 9:00 AM), http://dhe.mo.gov/cbhe/
boardbook/documents/BB0914.pdf. See also § 173.1110.2(7) (“The following docu-
ments . . . may be used to document that a covered student is . . . lawfully present in
the United States: . . . Any document issued by the federal government that confirms
an alien’s lawful presence in the United States.”).
49. See Access Missouri Financial Assistance Program, MO. DEP’T HIGHER
EDUC. (Sept. 21, 2015, 9:32AM), http://dhe.mo.gov/ppc/grants/accessmo.php. See
also Bright Flight Program, MO. DEP’T HIGHER EDUC. (Sept. 21, 2015),
http://dhe.mo.gov/ppc/grants/brightflight.php.
50. Coordinating Bd. for Higher Educ., supra note 48.
51. A+ Scholarship Program, MO. DEP’T HIGHER EDUC., http://dhe.mo.gov/ppc/
grants/aplusscholarship.php (last visited Mar. 24, 2016).
612 MISSOURI LAW REVIEW [Vol. 81
that the statute outlining the program did not limit lawfully present students
from obtaining A+ funding; however, the MDHE’s administrative rules re-
quired a student’s good faith effort to obtain federal need-based aid.52 As a
student must have lawful status to receive educational aid from the federal
government, DACA students were not eligible prior to 2015 for the A+
Scholarship.53
Accordingly, the MDHE voted to amend the administrative rule, guaran-
teeing that otherwise eligible54 DACA students were not prohibited from
participation based solely on their inability to obtain federal aid.55 The
MDHE’s rule became effective March 30, 2015,56 making DACA students
eligible to receive A+ Scholarship funding for the Summer 2015 term and
breaking down another barrier to postsecondary scholarship.57 However, it
was a short-lived victory.
C. The New Missouri Law: Requiring Legal Status
In 2014, St. Louis Community College announced its intention to charge
in-state tuition to lawfully present students who met the Missouri residency
requirements.58 The Missouri legislature responded by passing two bills, HB
3 and SB 224, restricting in-state tuition and public financial benefits to only
students with lawful status and removing DACA students from eligibility.59
52. Coordinating Bd. for Higher Educ., supra note 48.
53. Id.
54. The A+ Scholarship fund provides scholarship funds to high school students
who attend public community college or vocational school. A+ Scholarship Pro-
gram, supra note 51. To be eligible, a high school student must, among other things:
(1) “Attend a designated A+ high school for 3 consecutive years immediately prior to
graduation[,]” (2) “Graduate with an overall grade point average of 2.5 or higher on a
4.0 scale[,]” (3) have at least a 95% attendance record overall for grades 9-12[,]” and
(4) “Perform at least 50 hours of unpaid tutoring or mentoring . . . .” Id.
55. Coordinating Bd. for Higher Educ., supra note 48.
56. E-mail from Jeremy Knee, Gen. Counsel, Mo. Dep’t of Higher Educ., to
author (Sept. 17, 2015, 11:43 AM) (on file with author).
57. See id.
58. Telephone Interview with Scott Fitzpatrick, Representative, Mo. House of
Representatives (Sept. 18, 2015).
59. See H.R. 3, 98th Gen. Assemb., 1st Reg. Sess. (Mo. 2015). See also MO.
ANN. STAT. § 160.545 (West 2016).
2016] “SHOW ME” YOUR LEGAL STATUS 613
1. HB 3 Changes Existing Law and Limits Legally Present Students
from In-State Tuition and State Scholarships
In March 2015, the Missouri legislature enacted HB 3.60 HB 3’s main
purpose was to apportion the MDHE’s budget for the upcoming year.61
However, unlike previous budget bills, an amendment attached to the pream-
ble of the bill declared, “no funds shall be expended at public institutions of
higher education that offer a tuition rate to any student with an unlawful im-
migration status in the United States that is less than the tuition rate charged
to international students.”62 In addition, the preamble asserted, “no scholar-
ship funds shall be expended on behalf of students with an unlawful immigra-
tion status in the United States.”63
The addition to the budget bill excluded all nonimmigrant students with
lawful presence in Missouri, including those with DACA classifications.64
According to the amendment’s sponsor, the purpose behind the amendment
was two-fold: (1) preserve the state’s finite resources for citizens and legal
residents and (2) decrease the attractiveness of moving to Missouri for un-
documented immigrants.65 The overall goal was to use the savings to provide
more aid to eligible students and expand scholarship availability to U.S. citi-
zens currently ineligible for state scholarships.66 In addition, the Missouri
legislature believed that by reducing public benefits available to people with
unlawful status, the overall unlawful immigration population would de-
crease.67 No concrete predictions have been made as to how many students
this affects, but the estimates range from as few as fifty to as many as a few
hundred.68
HB 3’s authority is unclear. The MDHE determined the preamble “does
not appear as legally binding language in the body of HB 3 or elsewhere in
statute.”69 The language in the preamble of the bill is not operative; it alerts
the reader of what is in the bill, but it does not form part of the enactment.70
The MDHE relied on the holding in the Supreme Court of Missouri case
Doemker v. Richmond Heights that held the only reason a court should con-
60. Activity History for House Bill 3, MO. HOUSE REPRESENTATIVES,
http://www.house.mo.gov/BillActions.aspx?bill=HB3&year=2015&code=R (last
visited Mar. 24, 2016).
61. See Mo. H.R. 3.
62. Id.
63. Id.
64. Id.
65. Telephone Interview with Scott Fitzpatrick, supra note 58.
66. Id.
67. Id.
68. E-mail from Jeremy Knee, supra note 56.
69. Memorandum from David Russell, Commissioner, Mo. Dep’t of Higher
Educ., to Presidents, Chancellors, and Directors of A+ Eligible Postsecondary Educa-
tion Institutions (July 13, 2015) (on file with Mo. Dep’t of Higher Educ.).
70. E-mail from Jeremy Knee, supra note 56.
614 MISSOURI LAW REVIEW [Vol. 81
sult the title of a bill is if ambiguity arises from the body of a statute.71 The
MDHE reasoned that because HB 3 is a budget bill containing a straightfor-
ward appropriation of money, there is no ambiguity, and the title of the bill
cannot be used in interpreting the bill.72
However, others view the bill as binding because it directs the use of the
funds appropriated in the bill.73 Public institutions heeded HB 3, raising the
tuition cost of their students with unlawful status. For example, the Universi-
ty of Missouri-Columbia raised the tuition rate for its current students affect-
ed by the change in law.74 Despite meeting the university’s in-state tuition
requirements, students without lawful status will now pay the out-of-state
tuition rate.75 The 2015 tuition rate per year for in-state students is $10,586,
whereas the tuition rate for international students amounts to $25,198.76 The
$14,612 difference over four years equates to a $58,448 increase for students
with unlawful status, effectively re-constructing the barrier to postsecondary
education for DACA students.77
71. Id.
72. Id.
73. Telephone Interview with Scott Fitzpatrick, supra note 58.
74. E-mail from Christian Basi, Assistant. Dir., News Bureau Div., Div. of Mar-
keting & Communications, Univ. of Mo., to author (Sept. 17, 2015) (on file with
author). See also E-mail from John Fougere, Chief Communications Officer, Univ. of
Mo. Sys., to author (Sept. 18, 2015) (on file with author) (“Our position on this issue
has been consistent, in that it is our intention to follow the will of the legislature with
regards to HB 3.”).
75. E-mail from Casey Baker, Dir. of External Relations, Univ. of Mo. Sch. of
Law, to author (Sept. 17, 2015) (on file with author).
76. Costs: Undergraduate Cost of Attendance 2015-16, U. MO. ADMISSIONS,
http://admissions.missouri.edu/costs-and-aid/costs/ (last visited Mar. 24, 2016). This
calculation reflects fourteen credit hours each semester, and it does not reflect addi-
tional course fees for specific colleges. Id. It includes both the fall and spring semes-
ters. Id.
77. With the help and support of the ACLU, three DACA students filed three
separate suits against: (1) the University of Missouri, (2) St. Louis Community Col-
lege, and (3) the Metropolitan Community College in Kansas City. Anthony Rothert
et al., Immigrant Students Sue Missouri Schools, ACLU, http://www.aclu-
mo.org/legal-docket/immigrant-students-sue-missouri-schools/ (last visited Mar. 24,
2016).
2016] “SHOW ME” YOUR LEGAL STATUS 615
2. Reversing the MDHE by Denying A+ Scholarships Through
Legislation
On September 16, 2015, the Missouri legislature overrode Governor
Nixon’s veto and approved SB 224.78 In passing this bill, the Missouri legis-
lature added a stipulation to receiving A+ funding: the recipient must be a
citizen or permanent resident of the United States.79
Legislators noted that two other Missouri scholarships, Bright Flight and
Access Missouri, required individuals to hold lawful status.80 Legislators felt
while the A+ Scholarship language was silent on the issue of legal status, it
was important to clarify that all three Missouri scholarships required the same
level of documentation.81 For reasons similar to those supporting HB 3, the
legislators emphasized the importance of preserving finite resources for citi-
zens who currently do not have access to A+ funding.82 The bill went into
effect on October 16, 2015; any DACA student granted an A+ Scholarship
must now look to alternate funding.83
Both HB 3 and SB 224 exclude otherwise qualified students from in-
state tuition and state aid based on their immigration status. While the Mis-
souri legislature justifies its actions as benefiting citizens of Missouri, a key
question must be asked: Are these bills constitutional under the Equal Protec-
tion Clause?
III. EQUAL PROTECTION CHALLENGES: SCRUTINY AS APPLIED TO
ALIENAGE
The Equal Protection Clause declares: “No State shall . . . deprive any
person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.”84 The
Supreme Court of the United States has long established this provision to be
universal, applying to “all persons within the territorial jurisdiction, without
regard to any differences of race, of color, or of nationality.”85 This pledge
78. Senate Action for 9/16/2015, MO. ST. SENATE,
http://www.senate.mo.gov/15info/BTS_Web/Daily.aspx?SessionType=R&ActionDat
e=9/16/2015 (last visited Mar. 24, 2016).
79. MO. ANN. STAT. § 160.545 (West 2016).
80. Audio tape: Newsroom Daily Audio and Video Clips, Missouri Senate
Newsroom (Sept. 17, 2015), http://www.senate.mo.gov/newsroom/Pages/
dailyaudiovideo.html.
81. Id.
82. Telephone Interview with Scott Fitzpatrick, supra note 58.
83. E-mail from David Russell, Comm’r, Mo. Dep’t of Higher Educ., to author
(Sept. 17, 2015, 11:27 AM) (on file with author).
84. U.S. CONST. amend. XIV, § 1.
85. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
616 MISSOURI LAW REVIEW [Vol. 81
promises both the “equal protection of the laws” and “the protection of equal
laws.”86
A. Levels of Constitutional Scrutiny
When analyzing the constitutionality of state legislation under the Equal
Protection Clause, courts use three different levels of scrutiny based on the
group or classification under review: (1) rational basis, (2) intermediate re-
view, or (3) strict scrutiny.87 The Supreme Court determined that legal alien-
age is a suspect class, and laws discriminating against a suspect class are gen-
erally subject to strict scrutiny.88 However, a current question exists as to
whether the suspect classification refers to lawful aliens as a group or only to
a subclass of aliens with legal permanent residence.89
Traditionally, the states retained “broad discretion” under equal protec-
tion rules “to classify as long as its classification ha[d] a reasonable basis.”90
Accordingly, a statute under review that did not implicate a suspect class or
fundamental right would be scrutinized under the rational basis test.91 Courts
are reluctant to overturn a law using the rational basis test unless the varying
treatment of different groups serves no legitimate purpose.92 Therefore, un-
der a rationale basis test, a state law is presumed valid, and the challenger has
the burden to negate all possible rational bases related to the state’s interest.93
By contrast, a law that “impermissibly interferes with the exercise of a
fundamental right or operates to the peculiar disadvantage of a suspect class”
is reviewed using a strict scrutiny standard.94 Few cases survive strict scruti-
ny, as the government must prove both (1) its interest is sufficiently “compel-
ling” to support its classification and (2) the law is “narrowly tailored” to
serve such a compelling interest.95 If the Court deems “the classification
86. Id.
87. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES 699
(5th ed. 2015).
88. See Graham v. Richardson, 403 U.S. 365 (1971).
89. Compare LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005), and League of
United Latin Ame. Citizens (LULAC) v. Bredesen, 500 F.3d 523 (6th Cir. 2007), with
Dandamudi v. Tisch, 686 F.3d 66 (2d Cir. 2012).
90. Graham, 403 U.S. at 371 (citations omitted). This issue will be discussed
further in Part IV of this Note.
91. Gregory v. Ashcroft, 501 U.S. 452, 470–71 (1991).
92. Id. at 471.
93. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973) (quot-
ing Madden v. Kentucky, 309 U.S. 83 (1940)) (“The burden is on the one attacking
the legislative arrangement to negative every conceivable basis which might support
it.”).
94. Mass. Bd. of Retirement v. Murgia, 427 U.S. 307, 312 (1976). Suspect clas-
sifications include race, alienage, and national origin. Id.
95. JOHN E. NOWAK & RONALD D. ROTUNDA, PRINCIPLES OF CONSTITUTIONAL
LAW 390 (4th ed. 2010).
2016] “SHOW ME” YOUR LEGAL STATUS 617
need not be employed to achieve [the state’s interests], the law will be held to
violate the equal protection guarantee.”96
Intermediate scrutiny is used to evaluate classifications that bear some,
but not all, of the characteristics of a suspect class.97 A court will uphold a
state’s law if the law serves important governmental goals and if the law is
substantially related to achieving those goals.98 The “important” standard
required in intermediate scrutiny is less exacting than the “compelling”
standard found in strict scrutiny.99 Moreover, the “substantially related to”
specification lessens the government’s burden of proof compared to strict
scrutiny’s “narrow tailoring” requirement.100 However, intermediate scrutiny
is not easily satisfied; the “burden of justification is demanding” and “it rests
entirely on the State.”101
B. Supreme Court Precedent Based on Alienage
The Supreme Court reasoned that classifications based on alienage are
inherently suspect because they are a “discrete and insular minorit[y]” for
whom heightened judicial solicitude is appropriate.102 The Court first applied
strict scrutiny to this classification in Graham v. Richardson, a case consid-
ered to be “the lodestar of the Court’s alienage discrimination doctrine.”103 In
Graham, legal residents claimed state laws denied them equal protection by
excluding legal residents from access to otherwise available state benefits.104
The Court held states could not limit expenditures for public programs by
creating discriminatory distinctions between citizens and immigrants.105 It
appeared unassailable that the Court viewed alienage as a suspect class enti-
tled to strict scrutiny.
However, in 1977, the Supreme Court determined strict scrutiny applied
only to legal aliens; a separate level of scrutiny applied to the children of
undocumented immigrants.106 In Plyler v. Doe, undocumented school-aged
children challenged the Texas statute denying them the free public education
it provided to its citizens and legally admitted aliens.107 The Court reasoned
undocumented aliens could not be a suspect class as their presence was in
96. Id.
97. Jeffrey M. Shaman, Cracks in the Structure: The Coming Breakdown of the
Levels of Scrutiny, 45 OHIO ST. L.J. 161, 162–63 (1984).
98. Intermediate classes include gender and illegitimacy. Id.
99. CHEMERINSKY, supra note 87, at 699.
100. Id.
101. United States v. Virginia, 518 U.S. 515, 533 (1996).
102. United States v. Carolene Prods. Co., 304 U.S. 144, 152–153 & n.4 (1938).
Accord Graham v. Richardson, 403 U.S. 365, 371 (1971).
103. Dandamudi v. Tisch, 686 F.3d 66, 73 (2d Cir. 2012).
104. Graham, 403 U.S. at 367–68.
105. Id. at 376.
106. See Plyler v. Doe, 457 U.S. 202 (1982).
107. Id. at 206.
618 MISSOURI LAW REVIEW [Vol. 81
violation of federal law.108 Yet, the Court felt it inappropriate to rule under a
rational basis test, opting for a heightened form of rational basis.109 The
Court reasoned that while parents elect to enter the country in violation of
U.S. law, the children are not “comparably suited.”110 The Texas statute was
found to “impose[] its discriminatory burden on the basis of a legal character-
istic over which children can have little control,” and it was therefore “diffi-
cult to conceive of a rational justification for penalizing these children for
their presence within the United States.”111 The Court based its decision on
the effect of denying children basic education: a lifetime of hardship for a
discrete class of children not accountable for their disabling status.112
After Plyler, it became clear that alienage did not always rise to the lev-
el of strict scrutiny. Today, courts face the question: What level of scrutiny is
required in evaluating discriminatory laws against other types of immi-
grants?113
C. Federal Circuit Decisions and Nonimmigrant Status
Federal circuit courts are split on what level of scrutiny to apply to
nonimmigrants’ status. The U.S Court of Appeals for the Fifth Circuit faced
a similar question regarding nonimmigrants – immigrants with temporary
visas that acquire status while their visa is current114 – in LeClerc v. Webb.115
108. Id. at 223 (“Undocumented aliens cannot be treated as a suspect class be-
cause their presence in this country in violation of federal law is not a ‘constitutional
irrelevancy.’”).
109. Id. at 224 (“[T]he discrimination contained in [the Texas statute] can hardly
be considered rational unless it furthers some substantial goal of the State.”). Some
scholars believe the Court impliedly used intermediate scrutiny in Plyler, finding
support for this argument in Justice Powell’s concurring opinion. CHEMERINSKY,
supra note 87, at 809 (“[T]he Court also made it clear that it was using more than
rational basis review.”).
110. Plyler, 457 U.S. at 220.
111. Id.
112. Id. at 223.
113. The Court had a chance to determine the level of scrutiny required for equal
protection claims brought by nonimmigrants in Toll v. Moreno. 458 U.S. 1 (1982).
Instead, the Court found the University of Maryland’s policy to refuse in-state tuition
to nonimmigrants with a G-4 visa violated the Supremacy Clause, and the Court
“therefore ha[d] no occasion to consider whether the policy violate[d] the . . . Equal
Protection Clauses.” Id. at 10. While the Supremacy Clause may trigger preemption
in DACA equal protection claims, this is not within the scope of this Note.
114. See Temporary (Nonimmigrant) Workers, U.S. CITIZENSHIP & IMMIGRATION
SERVICES, http://www.uscis.gov/working-united-states/temporary-workers/
temporary-nonimmigrant-workers (last updated Sept. 7, 2011). Once the visa expires,
or is denied renewal, nonimmigrants who continue to live in the United States accrue
unlawful presence. See How Do I Extend My Nonimmigrant Stay in the United
States?, U.S. CITIZENSHIP & IMMIGRATION SERVICES (Oct. 2013),
http://www.uscis.gov/sites/default/files/USCIS/Resources/C1en.pdf.
2016] “SHOW ME” YOUR LEGAL STATUS 619
The Fifth Circuit found two distinct differences between the immigrants in
Graham and the nonimmigrants in LeClerc: (1) nonimmigrants lack the same legal protections as immigrants due to their transient connection with the
state; and (2) nonimmigrants do not reflect the functions of resident aliens,
who pay taxes, support the economy, and serve in the military.116 Further, the
court refused to apply the heightened rational basis test utilized in Plyler to
nonimmigrants, interpreting the heightened rational basis standard to apply
only to the unique circumstances of that case.117 The Fifth Circuit opted for
the ordinary rational basis test.118 The Sixth Circuit mirrored this decision
two years later in LULAC v. Bredesen.119
Conversely, the Second Circuit refused to adopt the Fifth Circuit’s view
in Dandamudi v. Tisch.120 Unlike the Fifth and Sixth Circuits, the Second
Circuit found “little or no distinction between [legal permanent residents] and
the lawfully admitted nonimmigrants plaintiffs [in this case].”121 Instead, the
court found nonimmigrant aliens were transient “in name only”; in reality, a
large number of nonimmigrants apply for, and obtain, permanent resi-
dence.122 Further, nonimmigrant residents contribute to society in a similar
manner to residents: nonimmigrants “may live within a state for many years,
work in the state and contribute to the economic growth of the state.”123
Thus, the Second Circuit adopted a strict scrutiny test in direct contention
with the Fifth and Sixth Circuits’ decisions.124
The Supreme Court has yet to assign a firm level of scrutiny to any im-
migration class, save legal permanent residents. DACA individuals are a
unique class apart from nonimmigrants; while nonimmigrants retain legal
status until their visas expire, DACA students obtain lawful presence after
115. LeClerc v. Webb, 419 F.3d 405, 410–11 (5th Cir. 2005).
116. Id. at 417.
117. Id. at 416 n.27. See also Plyler, 457 U.S. at 239 (Powell, J., concurring) (“In
these unique circumstances, the Court properly may require that the State’s interests
be substantial and that the means bear a ‘fair and substantial relation’ to these inter-
ests.”).
118. LeClerc, 419 F.3d at 415 (“Despite some ambiguity in Supreme Court prece-
dent, we conclude that because Section 3(B) affects only nonimmigrant aliens, it is
subject to rational basis review.”).
119. 500 F.3d 523, 533 (6th Cir. 2007) (“We find the analysis set forth in LeClerc
to be persuasive. . . . This case presents no compelling reason why the special protec-
tion afforded by suspect-class recognition should be extended to lawful temporary
resident aliens.”).
120. 686 F.3d 66, 75 (2d Cir. 2012).
121. Id. at 78.
122. Id.
123. Id. at 75 (quoting Shapiro v. Thompson, 394 U.S. 618 (1969)).
124. Id. at 70 (“Applying strict scrutiny, therefore, and finding, as the state con-
cedes, that there are no compelling reasons for the statute’s discrimination based on
alienage, we hold the New York statute to be unconstitutional.”).
620 MISSOURI LAW REVIEW [Vol. 81
receiving the DHS’s approval.125 Yet, both types of immigrants face the
same equal protection challenges, and they await a final declaration from the
Court as to the level of scrutiny to which they will be subjected.
IV. DISCUSSION
All equal protection claims ask the same basic question: Is the govern-
ment’s classification justified by a sufficient purpose?126 It is commonly
understood in constitutional law that the legislature is allowed to classify
groups of people, but a law will not be upheld if it is “based upon impermis-
sible criteria or arbitrarily used to burden a group of individuals.”127 To de-
termine if a sufficient purpose exists, the courts apply a three-part test: first,
the court must determine the classifications created by the statute; second, the
court decides the appropriate level of scrutiny by considering several estab-
lished factors; and third, the court analyzes whether the government action
withstands the level of scrutiny required.128 Under this three-part test, HB 3
and SB 224 fail to pass constitutional muster.
A. HB 3 Classifies Individuals Based on a Suspect Class
HB 3’s amendment declares that public institutions will lose their state
funding if they offer in-state tuition or scholarships to students with unlawful
immigrant status.129 DACA recipients, while considered lawfully present, do
not enjoy lawful status.130 As such, HB 3 specifically denies access to in-
state tuition and scholarship money to DACA students applying for admis-
sion to Missouri public institutions, while allowing citizens and legal immi-
grants, otherwise similarly situated, to receive in-state tuition and scholarship
benefits.
125. Consideration of Deferred Action for Childhood Arrivals Process: Frequent-
ly Asked Questions, supra note 20 (“An individual who has received deferred action is
authorized by DHS to be present in the United States, and is therefore considered by
DHS to be lawfully present during the period deferred action is in effect.”).
126. CHEMERINSKY, supra note 87, at 697.
127. NOWAK & ROTUNDA, supra note 95, at 384.
128. CHEMERINSKY, supra note 87, at 698.
129. H.R. 3, 98th Gen. Assemb., 1st Reg. Sess. (Mo. 2015).
130. Consideration of Deferred Action for Childhood Arrivals Process: Frequent-
ly Asked Questions, supra note 20 (“An individual who has received deferred action is
authorized by DHS to be present in the United States, and is therefore considered by
DHS to be lawfully present during the period deferred action is in effect. However,
deferred action does not confer lawful status upon an individual, nor does it excuse
any previous or subsequent periods of unlawful presence.”).
2016] “SHOW ME” YOUR LEGAL STATUS 621
The classification found in HB 3 distinctly separates DACA students
based on their alienage. Under Missouri law, Missouri high school graduates
whose parents are regarded as residents of Missouri131 are considered resi-
dents for in-state tuition purposes if they resided in Missouri for the past
twelve consecutive months with the intent to make Missouri a permanent
home.132 Moreover, an out-of-state student can change his or her residency
status for tuition purposes by remaining in Missouri for twelve consecutive
months coupled with proof of intent to make Missouri a permanent home.133
Many DACA students qualify as a resident for in-state tuition purposes.
Regardless, DACA students who do not qualify for in-state tuition have the
capability of becoming residents. Although DACA recipients in Missouri can
qualify for in-state tuition, they are barred from obtaining it by Missouri law.
HB 3 and SB 224 both block DACA students from receiving state
scholarship funds otherwise available to them through the MDHE and public
institutions.134 The MDHE provides several scholarships tailored to lawfully
present students, such as the Minority Teaching Scholarship and Minority
and Underrepresented Environmental Literacy Scholarship.135 HB 3 prevents
DACA students from receiving this type of financial benefit, yet expects
DACA students to pay the international tuition rate to attend school. The
result is a practically insurmountable barrier to higher education.
B. Legally Present Aliens Should Receive Strict Scrutiny
Once a court establishes a challenged statute’s classification, the court
must determine the applicable level of scrutiny.136 The courts analyze several
factors in determining whether a law affects a “discrete or insular minority”;
if so, the court will find a suspect class and apply strict or intermediate scruti-
131. To be a resident of Missouri, one must be domiciled in Missouri – have a
permanent home with intentions to return whenever absent – and either (1) maintain a
permanent place of residency in Missouri or (2) spend more than thirty days in Mis-
souri. Resident or Nonresident, MO. DEP’T REV., http://dor.mo.gov/
pdf/nonres_flowchart.pdf (last visited Mar. 24, 2016). Importantly, federal law does
not prohibit individuals granted deferred action from establishing domicile in the
United States. Consideration of Deferred Action for Childhood Arrivals Process:
Frequently Asked Questions, supra note 20.
132. MO. CODE REGS. ANN. tit. 6, § 10-3.010(9)(C) (2016).
133. Id.
134. Mo. H.R. 3.
135. Grants & Scholarships, MO. DEP’T HIGHER EDUC., http://dhe.mo.gov/
ppc/grants/ (last visited Mar. 25, 2016). The Minority Teaching Scholarship awards
students entering the field of teaching while the Minority and Underrepresented Envi-
ronmental Literacy Program is available to students studying in an environmental
field. Id. Other scholarships available to DACA students include the Kid’s Chance
Scholarship Program (available to children of workers who were seriously injured or
died in a work-related accident) and the Wartime Veteran’s Survivors Grant (availa-
ble to children whose parents were injured in combat). Id.
136. CHEMERINSKY, supra note 87, at 699–700.
622 MISSOURI LAW REVIEW [Vol. 81
ny.137 If the court finds the affected group is not part of a suspect class, the
suspect class will merely receive rational basis review.138 DACA individuals
meet the heightened rational basis test applied in Plyler v. Doe, but should
receive the strictest form of scrutiny as a suspect class due to the similarities
between DACA individuals and the nonimmigrants found in Graham and
Dandamudi.
1. At Least Heightened Rational Basis Applies to the DACA
Population
DACA individuals share a similar plight to the undocumented children
in Plyler v. Doe and, therefore, should at least receive Plyler’s heightened
rational basis test. The Court believed that imposing disabilities on innocent,
undocumented children was “contrary to the basic concept of our system that
legal burdens should bear some relationship to individual responsibility or
wrongdoing.”139 Similarly, the parents, not DACA recipients, are responsible
for the legal burdens resulting in undocumented status because DACA indi-
viduals, as required by executive order, arrive in the United States before the
age of sixteen.140
The Plyler Court felt compelled to protect undocumented students be-
cause without an education, undocumented children, who are already “disad-
vantaged as a result of poverty, lack of English-speaking ability, and undeni-
able prejudices[,] . . . will become permanently locked into the lowest socio-
economic class.”141 The Court recognized that education was more than
some social welfare benefit, but was also an essential component to produc-
tivity in society.142 While HB 3 and SB 224 focus specifically on post-
secondary opportunities to in-state tuition and scholarships, the concept of
denying a state public education benefit to otherwise qualified individuals
conforms to Plyler’s holding.
In today’s labor market, a high school diploma is no longer sufficient;
higher education is essential to competing for sustainable work.143 The St.
Louis Federal Reserve Bank found Hispanic,144 four-year college graduates
137. Id.
138. Id.
139. Plyler v. Doe, 457 U.S. 202, 220 (1982).
140. See Consideration of Deferred Action for Childhood Arrivals (DACA), supra
note 3.
141. Plyler, 457 U.S. at 207–08.
142. Id. at 220–21.
143. David H.K. Nguyen & Zelideh R. Martinez Hoy, “Jim Crowing” Plyler v.
Doe: The Re-Segregation of Undocumented Students in American Higher Education
through Discriminatory State Tuition and Fee Legislation, 63 CLEV. ST. L. REV. 355,
359 (2015).
144. The limitation to figures regarding Hispanic income and net wealth reflect
the DACA population present in the United States. Audrey Singer & Nicole Prchal
Svajlenka, Immigration Facts: Deferred Action for Childhood Arrivals (DACA),
2016] “SHOW ME” YOUR LEGAL STATUS 623
earned $37,943 more per year than non-college graduates.145 Yet, four-year
Hispanic college graduates’ median debt-to-income ratio, which measures a
person’s ability to repay borrowed money,146 rests at 134.3%, over 100%
higher than their non-college counterparts.147
Missouri’s HB 3 and SB 224 exacerbate an already bleak situation.
DACA students who want to obtain an education to increase their household
income face increasing debt due to the price hike between in-state and inter-
national tuition when unassisted by public scholarship funding. The result
will raise an already distressingly high debt-to-income ratio among college-
educated Hispanics even higher while lowering the number of DACA indi-
viduals who can afford to attend college. This scenario strikes at the heart of
Plyler’s conclusion: DACA students, through no guilty action of their own
making, are locked into the lowest socio-economic class due to their inability
to obtain an education. Therefore, Missouri courts should at least apply
Plyler’s heightened rational basis test.
2. Strict Scrutiny Is the Most Appropriate Level of Scrutiny for DACA
Classifications
While DACA individuals at least meet the heightened rational basis
standard applied in Plyler, courts should analyze equal protection claims made by DACA individuals using strict scrutiny. While the Supreme Court
considers alienage to be a “‘discrete and insular’ minority” for permanent
residents, the Court has rejected this analysis for undocumented individuals
BROOKINGS METROPOLITAN POLICY PROGRAM (Aug. 14, 2013),
http://www.brookings.edu/~/media/research/files/reports/2013/08/14%20daca/daca_si
nger_svajlenka_final.pdf. Seventy-five percent of DACA applicants in the United
States were born in Mexico, ten percent were born in Central America, and 6.9%
were born in South America. Id. A majority of applicants in the Midwestern states
are Mexican born. Id.
145. William R. Emmons & Bryan J. Noeth, Why Didn’t Higher Education Pro-
tect Hispanic and Black Wealth?, FED. RES. BANK ST. LOUIS (Aug. 2015),
https://www.stlouisfed.org/publications/in-the-balance/issue12-2015/why-didnt-
higher-education-protect-hispanic-and-black-wealth. On average, Hispanic four-year
graduates earn 2.2 times more in family income than Hispanic non-college graduates.
Id. The median Hispanic family net worth of four-year college graduates increased
$37,446 over their non-college graduate counterparts. Id. Hispanic four-year college
graduates have a family net worth 4.1 times greater than non-college graduates. Id.
146. What is a debt-to-income ratio? Why is the 43% debt-to-income ratio im-
portant?, CONSUMER FIN. PROTECTION BUREAU, http://www.consumerfinance.gov/
askcfpb/1791/what-debt-income-ratio-why-43-debt-income-ratio-important.html (last
updated Dec. 20, 2015). The debt-to-income ratio (“DTI”) is calculated by taking a
person’s monthly debt payments and dividing it by a person’s monthly income. Id.
The higher the DTI, the more likely a person will have trouble making payments to
lenders. Id. The Consumer Financial Protection Bureau recommends a DTI of no
more than a forty-three percent. Id.
147. Emmons & Noeth, supra note 145.
624 MISSOURI LAW REVIEW [Vol. 81
due to their voluntary action of entering the country illegally.148 The Court
has not decided the issue regarding individuals with lawful presence, but
should consider DACA recipients to be a suspect class because: (1) they do
not enter the country on their own volition, yet (2) they contribute to the
overall economic and social wellbeing of the United States.
Similar to the Graham and Dandamudi Courts’ analyses of legal resi-
dents and nonimmigrants, DACA individuals pay taxes as well as have the
potential to live, work, attend school, and contribute to the economic growth
of a state for many years.149 In addition, DACA individuals are subject to the
same civil and criminal laws, yet do not have the ability to elect the individu-
als that create and enforce those laws.150 Unlike the undocumented children
in Plyler, DACA individuals receive social security numbers and temporary
work permits that authorize the government to collect income and property
taxes.151 These documents transform DACA individuals from undocumented
to a unique “DACAmented” status classified by the federal government as
creating legal presence.152 As DACA students are similarly situated to both
nonimmigrants and legal residents, they should receive the same protections
afforded to their counterparts.
The Fifth Circuit would not make such a finding. It argued nonimmi-
grants are a different subclass than that found in Graham, and the nonimmi- grant subclasses’ “lack of legal capacity . . . is tied to their temporary connec-
tion to this country.”153 The Dandamudi court debunked this fiction, reason-
ing lawfully admitted nonimmigrants intend to remain in the United States
much longer than the term on their visa by applying for and ultimately obtain-
ing permanent residence.154 The Second Circuit declared the Fifth Circuit’s
argument to be “wholly unpersuasive” and “disingenuous.”155 The Supreme
Court has also previously concluded, “the record is clear that many of the
undocumented children disabled by this classification will remain in this
country indefinitely, and that some will become lawful residents or citizens of
the United States.”156
148. Compare Graham v. Richardson, 403 U.S. 365, 372 (1971), with Plyler v.
Doe, 457 U.S. 202, 219 n.19 (1982).
149. See supra Part II.A.
150. See U.S. CONST. amend. XV, § 1 (“The right of citizens of the United States
to vote shall not be denied or abridged . . . .”). See also U.S. CONST. amend. XIX
(“The right of citizens of the United States to vote shall not be denied or abridged by
the United States or by any state . . . .”).
151. See supra Part II.A.
152. Pérez, supra note 4.
153. LeClerc v. Webb, 419 F.3d 405, 417 (5th Cir. 2005).
154. Dandamundi v. Tisch, 686 F.3d 66, 78 (2d Cir. 2012).
155. Id.
156. Plyler v. Doe, 457 U.S. 202, 230 (1982).
2016] “SHOW ME” YOUR LEGAL STATUS 625
Admittedly, DACA individuals obtain legal presence for only two years,
with the option to renew at the discretion of the DHS.157 Moreover, a future
administration can end DACA policy, returning these individuals to their
unlawful status and its constant risk of deportation.158 However, DACA indi-
viduals arguably present a stronger intent to remain in the United States than
the nonimmigrants in Dandamudi. DACA individuals come to the United
States at or before the age of sixteen.159 They attend primary and secondary
school with their peers, unaware of their immigration status until they apply
for a part-time job or college admissions.160 Many use the DACA platform as
a way to secure lawful presence until they can petition for legal residency.161
As a result, DACA individuals demonstrate the same, if not stronger, intent to
remain in the country they perceive as home.
The Supreme Court found alienage to be a “discrete and insular class,”
and as such, “the power of a state to apply its law exclusively to its alien in-
habitants as a class is confined within narrow limits.”162 A DACA individual
is part of the same discrete and insular minority ascribed by the Graham court
to legal permanent residents. The government grants no protection from the
majoritarian political process despite a history of invidious discrimination,
key factors in determining the existence of a suspect class.163 As such, the
Missouri courts should use strict scrutiny when considering HB 3 and SB
224’s constitutionality.
C. HB 3 and SB 224 Should Be Found to Violate the Equal Protection
Clause
A court should find that both HB 3 and SB 224 violate the Fourteenth
Amendment’s Equal Protection Clause. Under strict scrutiny, Missouri’s
laws cannot support a compelling interest or be considered narrowly tailored.
Even if a court were to use the heightened rational basis review utilized in
Plyler, the state’s interests could not significantly weigh against the DACA students’ interests in obtaining in-state tuition and state scholarships.
157. Consideration of Deferred Action for Childhood Arrivals Process: Frequent-
ly Asked Questions, supra note 20.
158. Id.
159. Consideration of Deferred Action for Childhood Arrivals (DACA), supra
note 3.
160. Nguyen & Hoy, supra note 143, at 369.
161. See Pérez, supra note 4 (“DACA has laid the groundwork for future compre-
hensive immigration reform by starting the process of registering undocumented
young people for potential legal status.”).
162. Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 420 (1948). See also
Graham v. Richardson, 403 U.S. 365, 372 (1971).
163. See CHEMERINSKY, supra note 87, at 700.
626 MISSOURI LAW REVIEW [Vol. 81
1. HB 3 and SB 224 Fail Strict Scrutiny Analysis
In order for a statute to survive strict scrutiny, it must prove the chal-
lenged legislation is narrowly tailored to meet a compelling state interest.164
The Missouri legislature passed HB 3 and SB 224 with two purposes in mind:
(1) to discourage unlawful immigration into Missouri and (2) to use the mon-
ey previously spent on lawfully present students to expand scholarship pro-
grams to citizens not currently eligible for scholarship funds.165 In evaluating
Missouri’s compelling interests in HB 3 and SB 224, a court should find nei-
ther of Missouri’s stated purposes meet the narrow fitting of a compelling
state interest.
The Missouri legislature intended to discourage immigration into Mis-
souri by making Missouri an unattractive place for DACA college students.
Yet, the legislature failed to determine the number of students the action
would affect. Even though the USCIS approved 3033 DACA applications,
only two DACA students attend the University of Missouri-Columbia, and an
estimated thirty-four attend the University of Missouri-Kansas City.166 The
result of the legislation has relatively little impact on the number of incoming
undocumented immigrants who enter the state, yet disparately impacts the
few individuals who seek higher education.
Moreover, the Supreme Court previously determined state and local
laws that classify persons “on the basis of U.S. citizenship for the purpose of
distributing economic benefits . . . [are] subject to strict judicial scrutiny.”167
In Graham v. Richardson, the Court rejected the state’s argument it had a
legitimate state interest in preserving welfare benefits for its citizens who
participated in the state’s economic activity and generated tax revenue.168 In
doing so, the Court declared that “a State’s desire to preserve limited welfare
benefits for its own citizens is inadequate to justify [the state’s discriminatory
laws].”169 While the Court recognized a state has a valid interest in preserv-
ing the fiscal integrity of its programs, it cannot accomplish its purpose using
“invidious discrimination.”170
The legislature’s desire to reduce scholarship funding to DACA individ-
uals in order to expand the scholarship program to currently unqualified citi-
zens reflects the invidious discrimination rejected in Graham. The bill’s
sponsors noted the limited amount of money in the budget reserved for state
164. See NOWAK & ROTUNDA, supra note 95, at 390 (“[T]he Court will not uphold
the classification unless the classification is necessary, or ‘narrowly tailored,’ to pro-
mote the compelling interest.”).
165. Telephone Interview with Scott Fitzpatrick, supra note 58.
166. See Consideration of Deferred Action for Childhood Arrivals (DACA), supra
note 3; Williams, supra note 6. See also E-mail from Christian Basi, supra note 74.
Other schools’ statistics were not found by the author at the time of this Note.
167. NOWAK & ROTUNDA, supra note 95, at 458.
168. See Graham v. Richardson, 403 U.S. 365, 374 (1971).
169. Id.
170. Id. at 374–75 (quoting Shapiro v. Thompson, 394 U.S. 618, 633 (1969)).
2016] “SHOW ME” YOUR LEGAL STATUS 627
scholarships and explained the state must prioritize citizens over non-
citizens.171 Yet, this is inadequate to justify discrimination against DACA
individuals.172 The legislature’s desire to expand scholarships to eligible
students that currently do not qualify must be funded through alternative, less
restrictive means that do not invidiously discriminate against eligible, lawful-
ly present students.
Even if a court were to find the state’s interests to be compelling, it
could not find the legislation narrowly tailored. When Missouri expanded
HB 3 and SB 224 from excluding only those with unlawful presence to ex-
cluding all those with unlawful status, the Missouri legislature created an
overinclusive law – i.e., one that includes individuals who need not be in-
cluded to achieve the legislature’s purpose.173 Unlike undocumented individ-
uals, a DACA student’s receipt of legal documentation allows the state to
collect income and property taxes in a similar fashion to individuals with
legal status.174 The effect of Missouri’s law on the small percentage of
DACA individuals who decide to attend college would not deter undocu-
mented immigrants themselves from entering Missouri. By including DACA
individuals in the law, the Missouri legislature unnecessarily includes a class
of people in its attempt to fulfill the purposes of this law. Therefore, a court
should conclude the law is not narrowly tailored and cannot be found consti-
tutional.
2. HB 3 and SB 224 Fail Heightened Rational Basis Test
Even if the Supreme Court uses Plyler’s heightened rational basis to
evaluate DACA equal protection claims, both HB 3 and SB 224 fail to meet
it. Similar to Plyler, both Missouri laws apply to the children of undocu- mented immigrants, thus impacting those “not accountable for their disabling
status.”175 The Court in Plyler rejected the state’s law, claiming, “[the law
was] directed against children, and impose[d] [a] discriminatory burden on
the basis of a legal characteristic over which children can have little control.
It is thus difficult to conceive of a rational justification for penalizing these
children for their presence within the United States.”176
171. Telephone Interview with Scott Fitzpatrick, supra note 58.
172. Graham, 403 U.S. at 375 (“Since an alien as well as a citizen is a ‘person’
for equal protection purposes, a concern for fiscal integrity is no more compelling a
justification for the questioned classification in these cases than it was in Shapiro.”).
173. CHEMERINSKY, supra note 87, at 702.
174. See supra Part II.A.
175. Plyler v. Doe, 457 U.S. 202, 223 (1982).
176. Id. at 224–25 (“[W]e are unable to find in the congressional immigration
scheme any statement of policy that might weigh significantly in arriving at an equal
protection balance concerning the State’s authority to deprive these children of an
education.”).
628 MISSOURI LAW REVIEW [Vol. 81
In addition, the Plyler Court analyzed the countervailing costs to inno-
cent victims associated with the state’s law, finding the denial of education
foreclosed the opportunity to contribute to the progress of the United
States.177 Similarly, the Missouri law forecloses blameless DACA individu-
als from contributing to Missouri’s progress by creating a practically impass-
able impediment to higher education. Yet, the exclusion of DACA students
cannot be said to outweigh the costs. While the loss of state scholarships and
simultaneous increase in tuition greatly impact individual students, the state
will save little money and will deter few undocumented immigrants from
entering Missouri. The scale between state interests and the interests of
DACA students leans heavily toward DACA individuals. Therefore, the
court should find HB 3 and SB 224 cannot “weigh significantly” to balance
the state’s interests with discrimination against DACA individuals.
V. CONCLUSION
The Missouri legislature’s passage of HB 3 and SB 224 infringes upon
the equal protection rights guaranteed to the suspect class of alienage. By
denying legally present students the opportunity to attend public institutions
at the in-state rate while withholding state scholarship funds, the legislature
created a practically insurmountable barricade to higher education. Missouri
claims the money saved by denying these benefits to legally present students
will both reduce immigration into the state and allow other citizens to benefit
from state aid. Yet, the benefits to the state cannot outweigh the costs to
DACA individuals now effectively denied access to higher education.
Through the generosity of private donors, the University of Missouri-
Kansas City has secured enough money to cover the difference between in-
state and out-of-state tuition to Juan Sanchez and twenty other newly admit-
ted DACA students.178 Unfortunately, this funding only covers one semester;
DACA students must find another solution to pay this large sum of money or
quit school.179 Students legally present in Missouri must now confront a new
reality: “Give me your tired, your poor, your huddled masses yearning to
breathe free” – but first, show me your legal status.
177. Id. at 223–24.
178. Williams, supra note 6.
179. Id.
Copyright of Missouri Law Review is the property of University of Missouri at Columbia, School of Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use.
