• Selected
• Entire List

Abstract:
It is my thesis that state, country, and local ordinances aimed at regulating general immigration functions are unconstitutional as a function of exclusive federal pre-emptory powers. If purely state, county, or local interests are governed and if federal pre-emptory powers are not triggered, such ordinances could be properly enacted, provided they are not subterfuges for replacing or substituting for federal authority. As one example, purely state benefits can be extended or withheld to undocumented college students, for tuition benefits and state residency determinations are properly designated as state classifications, which reference but do not determine immigration status. And the federal government has enacted statutes and promulgated regulations that subcontract or designate state or sub-federal immigration enforcement; many examples include assorted Memoranda of Understanding (MOU's) that calibrate and regulate a proper role for effectuating federal obligations. But a number of Supreme Court decisions and common law do not reserve or allow a substantive non-federal role for local, county, state, or multi-state authorities in immigration enforcement absent such delegation and carefully controlled, designated purposes.

Immigration, Local Ordinances, State Ordinances, Immigrants, Preemption

Abstract:
In some ways for those who have proposed comprehensive immigration reform, it has been a "perfect storm" and witches' brew of anti-immigrant factors, especially anti-Mexican sentiment, and while the November, 2006 elections appeared on one level to ameliorate some of these resentments, there is obviously a substantial interest in the larger community and a simmering anger towards immigrants, especially those who are undocumented or who are perceived to be undocumented, and these flare up without warning or provocation.

It is my thesis and response to Professor Kris Kobach's thesis that state, county, and local ordinances aimed at regulating general immigration functions are unconstitutional as a function of exclusive federal preemptory powers. If purely state, county, or local interests are governed and if federal preemptory powers are not triggered, such ordinances could be properly enacted, provided they are not subterfuges for replacing or substituting for exclusive federal authority. As one example, purely state benefits can be extended or withheld to undocumented college students, because tuition benefits and state residency determinations are properly designated as state classifications, which can incorporate but cannot determine immigration status.

Immigration, Public Benefits, College, Residency

Abstract:
In spring 2008, an issue over which I have been toiling away in obscurity for years became a matter of debate for the U.S. presidential candidates. On one side the Democrats were promoting college access for undocumented students; on the other, Republicans were all for locking them out of higher education (except Governor Huckabee, who in what I think was his finest hour said that we should not hold the sins of parents against their children). What was all the hullabaloo about? A number of states and their colleges and universities have been struggling with this issue, and ten states have acted to grant residency tuition to undocumented college residents in their states. There has been litigation in state and federal courts over this issue.

Against this backdrop of state activity, the federal stage has also been bustling. The Development, Relief, and Education for Alien Minors (DREAM) Act was introduced in Congress in 2003 but has languished there, as comprehensive immigration reform efforts failed in late 2007. If passed, this legislation would allow "alien minors" to start on the path towards permanent residency and, ultimately, citizenship. It would also address, among other issues, amnesties or legalization and work authorization. Finally, an important provision would render DREAM students eligible for all federal financial-aid programs except Pell. But since the presidential campaigns began in earnest, the legislation has been stalled.

In short, there has been a surprising amount of litigation and, recently, legislation on an issue that affects only a few students, but extremely vulnerable ones. In the states, advocates on both sides have engaged in efforts to get new provisions signed into law and to prevent them from becoming law. There is likely to be federal comprehensive immigration reform at some point, which will include provisions for undocumented college students to regularize their immigration status.

In a related field, that of financial aid, there are some technical issues that affect undocumented college applicants, and citizen children whose parents may be undocumented. As a general rule, the undocumented are ineligible for federal financial aid, and in virtually all states, for state financial aid as well. Moreover, there are several technical and administrative problems that even citizen college applicants face in negotiating the complex financial aid application process. The U.S. Department of Education has issued verification guidance on "discrepant tax data" and "conflicting information" that has relevance to the treatment of undocumented college applicants or citizen applicants whose parents are undocumented. Studies indicate that many undocumented taxpayers pay taxes and file their tax returns, using ITIN's, and if they do so, those tax returns may be used by their citizen children to establish financial aid eligibility through the required FAFSA. This article reviews the overlapping regimes of financial aid, immigration, and taxation, with particular attention to he status of undocumented college students.

Immigration, Higher education, Financial assistance, Taxation, Colleges

Abstract:
An important case was decided by a unanimous United State Supreme Court in May, 1954, in an opinion written by Chief Justice Warren. It invoked race, which had been employed by the State in a way to marginalize a discrete racial group, and formulated Equal Protection. The term Colored Men figured in it. Brown v. Board of Education? No - the case was Hernandez v. Texas, written at the same time as Brown, by the same Court, and was published in the 1954 Supreme Court Reports just before Brown. This criminal law companion to Brown involved all white juries in Mexican-Jim Crow Texas, and has been all-but-forgotten in the bright light accorded Brown. But its anti-subordination language, small town sociology, and bathroom signage (the men's room sign, invoked by Justice Warren, read Colored Men and Hombres Aqui (Men Here). The case was also the first case argued by Mexican American lawyers before the Supreme Court. This study draws upon previously-unexamined archival materials and newspaper accounts, as well as information from the lawyers who tried the 1954 case.

Latinos, Equal Protection, jury selection, criminal law

Abstract:
Although Brown concerned primary and secondary public education, the road to Brown ran through several higher education cases in which Black students were denied admission into predominantly white colleges. In these cases, the relevant universities crucially influenced place, as states physically excluded Blacks from these white public spaces. In response to Black demand for higher education access, states erected black colleges, started black law schools, aid for scholarships for Blacks to attend colleges or professional schools in other states, or required Blacks to sit, eat, and study in designated areas with white college facilities when courts ordered them admitted. This article reviews the higher education cases leading to and from Brown, and reviews several more recent cases where site and location have played a role in higher education access, including those that give public preference to graduates of restricted high schools - ones that themselves often turn on racial character. Any review of these cases will show that where a college is located can apportion access in a way that benefits or harms certain classes of attendees.

Colleges, Higher Education, Desegregation, Residence

Abstract:
Recent scholars in the area of racial admissions have suggested that we look to more postmodern issues beyond those of mere access and stratification of student admissions and faculty hiring. Following this suggestion, I believe that the most exclusionary practices occur in the daily practice of distributing the highest level of prestige resources, at the highest level of prestige, those of the various merit badges in the Law Professor Scout Troop. These include some of the most symbolic and tangible: law symposium special issues, named lectures, endowed and named chairs, memberships in elected or appointed honor societies and academies, clerkships, and honorary degrees and other honorific designations. These are important because we designate them as such and signal them as important, and because they sort us out, even within the verdant pastures where we all graze. My thesis is that there are many hidden assumptions and distributive inequalities in these prestige resources, and that the inequalities are socially constructed, highly competitive, and racially significant.

Faculty, Racial Discrimination, Colleges, Higher Education

Abstract:
The growth of state prepaid plans and state savings plans (529 plans, named for the IRS Code section) has been nothing short of phenomenal, with several states having billions of dollars in their 529 reserves, and a number of states selling tens of thousands of contracts each year. Florida's prepaid plan is among the nation's premier programs, with over 750,000 beneficiaries and almost $5 billion in assets. Every state now has a savings plan, and 18 have both a saving plan and prepaid plan. This growth, spurred by generous federal tax legislation, has brought exceptional professionalization into play, with several national financial organizations such as TIAA-CREF, Fidelity, and others providing services to states.

The advantageous tax treatment has given rise to many states offering multiple programs with generous provisions and helpful features.

That said, a number of policy issues have surfaced, including federal tax treatment of the plans, financial viability during unstable economic periods, system complexity that makes it difficult to evaluate plans or comparison-shop, and understanding the proper role of states in a federal financial aid system.

For example, a number of states have privatized these programs, setting up shops with turnkey elements. A small number of states have given full faith and credit protection to 529 plans, raising the possibility that a state's general fund resources will be used to bail out losing programs.

Several issues of state and federal taxation remain unclear, such as how 529 plans count in federal aid determination, and why gains on prepaid plans are included in the Expected Family Contribution, while proceeds from savings plans are not included in the EFC. Until Congress extends the 2011 sunset provision, parents or other potential purchasers may be reluctant to purchase 529 plans, even though it is likely that Congress will act to extend the tax treatment before that cutoff date.

Finally, there remain important equity, institutional, and legislative policy implications. Among these are the extent to which these plans exacerbate the gap between the well to do and the financially-needy, the extent to which prepaid plans will distort the admissions process and need-blind financial aid/admissions, and the likelihood that enormously successful 529 plans may restrict needed tuition increases or trade off against legislative appropriation levels. There is evidence to support all these equity concerns. Additional questions that have not been addressed include the extent to which generous tax treatment actually stimulates additional family savings for college, or simply re-directs family investment strategies. At the end of the day, prepaid plans are popular vehicles for the more advantaged, but their success has within it a number of policy concerns that deserve attention by scholars, legislators, and families.