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Excerpted From: William C. Kidder, Dreaming with Dreamers When DACA Is at Risk: An Innovative and Legally Defensible Student-Community Partnership Model to Bolster Financial Support for Undocumented College Students, 36 Georgetown Immigration Law Journal 571 (Winter, 2022) (197 Footnotes) (Full Document)


BillKidderDavid first came to the United States from Mexico at age six and enrolled in public elementary school in Riverside, California. He graduated from high school with honors and was admitted into the freshman class at the University of California, Berkeley (UC Berkeley)--describing it with excitement after a campus visit as an experience “like being at Hogwarts.” However, he could not enroll due to financial hardship even after receiving a few small private scholarships. David suffered from depression and then enrolled at his local community college, where he did well academically. Two years later, he was able to enroll at UC Berkeley as a transfer student. As an undocumented student who lacked both work authorization and federal financial aid eligibility, in his junior year, David was barely able to scrape by with savings from tutoring jobs and informal fundraising efforts by friends and acquaintances that helped him raise a few thousand dollars.

Even with California's AB 540 law allowing eligible undocumented students to pay in-state tuition rates, by his senior year of college, David simply did not have enough money to stay enrolled. What David did next was to improvise a life path--a bridge from the painful choices of today to the possibility of better choices and opportunities tomorrow--that would never have occurred to a white middle-class U.S. citizen student at Berkeley. David persuaded his professors to let him informally stay on their class lists. He attended class and completed all the exams and papers, including a senior thesis, even though he knew he was not receiving course credits towards his Bachelor's degree. While David struggled with periods of housing insecurity, eventually, his case came to the attention of the Chancellor, who partnered with supportive donors on fundraising efforts that helped David graduate from UC Berkeley. David went on to get a graduate degree at a prestigious East Coast institution. Today, he is working as a professional in an arts/humanities field.

This Article is about the ecosystem of federal laws, state laws, university financial aid policies, and private scholarship initiatives that surround and constrain the choices and dreams of students like David. At the same time, this Article is also about how a more searching examination of the gritty “go for broke” entrepreneurial attitudes, social justice activism, and educational strategies of undocumented students might point the way toward nontraditional and scaled-up fundraising strategies to support the higher education dreams of undocumented college students. In other words, is a scholarship initiative designed around undocumented students' strengths and agency a way to 1) enlarge fundraising for undocumented college students and 2) build the social movement human capital and change in societal attitudes that can improve the long-term prospects for positive change with federal and state laws? On many college campuses today in both “red states” and “blue states,” the answer may be “yes,” if given the right set of attitudes and circumstances.

Today, in an American college or university classroom of one hundred students, there will typically be two undocumented students like David, one with DACA eligibility and one without DACA eligibility. America's undocumented college students, many of whom have lived in the United States since they were young children or infants, face far greater economic precarity and lower levels of financial aid/support than their classmates. Section II provides an overall roadmap of the relevant federal laws and executive actions that surround the educational lives of undocumented students, including the unsuccessful efforts to pass comprehensive immigration reform, DACA, and two key immigration laws from a quarter-century ago: the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

Section III of this Article shows how undocumented students' lack of eligibility for federal financial aid is but one important feature of a complex opportunity structure that is also characterized by substantial variation from one state to the next. In addition, financing law school and other graduate and professional school programs is even more daunting for undocumented students than at the undergraduate level. Section IV lays the groundwork for the financial support model in this Article by showing how national college student survey data confirm a high degree of elasticity and movement over time in college students' attitudes of support for undocumented students. This is relevant to both short-term fundraising efforts and long-term transformation of voter attitudes necessary to overcome legislative gridlock on immigration reform.

Section V outlines a supplemental “private-ish” funding model based on the design principle that undocumented college students and their allies have resilient social justice-oriented human capital, an underappreciated natural advantage that can be further cultivated through a voluntary student fee pledge system. Section V further shows how a voluntary student fee for undocumented students can maximize new partnerships with private philanthropy through return on investment, scale-up opportunities, and force multipliers. Section VI evaluates the legal risks associated with this private-ish fundraising model for targeted scholarships, showing how this model is compatible with PRWORA and IIRIRA case law and should not constitute impermissible “public benefits.”

Finally, Section VII concludes with broader mission-driven observations about the importance of university officials taking action with undocumented students. In fact, it is undocumented students' bold and creative perseverance in higher education that is a confirmation of how the “weapons of the spirit” can matter more than material advantages. Those fierce aspirations and voices of undocumented college students, I argue, can be advanced and amplified through the university and community partnership model and associated organic activism described herein. In other words, it is university officials who can learn a lot from undocumented students regarding the mindset necessary for social innovation and how to overcome status quo bias, particularly in this area of great financial need that is made all the more difficult by legal constraints and ongoing federal legislative gridlock.

[. . .]

Even in the very difficult period under the Trump administration when Attorney General Jeff Sessions announced plans to rescind DACA, a grassroots media campaign strategy by undocumented students spread across many U.S. college campuses. Undocumented students posted photos of themselves on social media, at rallies and on university-affiliated websites holding signs stating, “I am undocumented and unafraid!” Undocumented students such as Yael at UCLA and Areli at the University of Houston included a second provocation on their signs that is also of vital importance in supporting undocumented students' agency and resiliency: “Educators, it's time to take action with me.”

As a university administrator who has worked on undocumented student-related law-policy, financial aid, and wellness issues at public universities, I believe there is far more work to do with respect to the possibilities for taking action with undocumented students. This Article outlines one new entrepreneurial partnership model that, to borrow from Cherrie Moraga's poem, is something “I already know exists. Is possible” and yet heretofore has not been attempted at any U.S. public college or university. For that to change on a college campus, tomorrow begins today, with a small cadre of tenacious undocumented student organizers, a mission-driven university leader with an appetite for innovation and moderate risk-taking, a small voluntary student fee on the order of five to ten bucks a quarter, and a couple of philanthropic organizations acutely interested in immigrant rights community partnerships. Adding to the mix of imagination, effective force multipliers, and burgeoning support from other students, allies, and faculty, the eventual result could be an order of magnitude increase in annual private scholarship support for talented and economically disadvantaged Dreamer students.

While this Article is focused on practical/operational policy and legal dimensions, raising additional “private-ish” scholarship funds for Dreamers through this novel model is also a means to other important long-term aspirational commitments. Undocumented students like David at UC Berkeley are a notable example of the seeming “underdog” who--as forcefully argued by Malcolm Gladwell in David and Goliath--in point of fact possess an abundance of valuable life experiences that are “powered by courage and faith” and entail nontraditional forms of power “in breaking rules [and] in substituting speed and surprise for strength.” As UCLA undocumented student Yael told the L.A. Times upon hearing of the decision to rescind DACA, “This is the time to hit the streets and organize. DACA does not define us. Our success doesn't depend on legislation. We are human beings who deserve dignity, peace and justice above all.” The point of this Article is to hopefully open up new conversations about how to advance the fierce aspirations of students like David and Yael with, as Cherrie Moraga puts it, “structures that can support us of trembling.”

Whether DACA is upheld in future appellate court rulings or is deemed unlawful, whether the legislature in your particular state has passed a law supporting or restricting state financial aid for undocumented students, and whether the struggle to overcome congressional gridlock and pass major federal immigration reform is a goal for the medium-term or the long-term--in all of these contingent possibilities, the scholarship fundraising model described in this Article is fundamentally about finding ways to sharpen and activate what Gladwell and others across the ages refer to as the “weapons of the spirit,” the “things that are in your heart or your soul or your imagination” that can matter more than material advantages. The sharpening and activation of undocumented students' (and allies') weapons of the spirit is also a mindset in the service of our ideals about democracy and education, and it deserves intentional cultivation by educators. The roles of progressive philanthropy and university administrators in this scholarship funding model are (to extend the David and Goliath metaphor) like the skillfully applied sling that with every additional rotation is building up more and more velocity and impact to undocumented students' and allies' agency and amplifying Dreamers' voices.

David's most audacious act as an undocumented student at UC Berkeley, born of his imagination and dreams accrued over a lifetime of schooling in the United States, was his decision to continue with his studies “off book” as a college senior, even though that goes against a host of University enrollment, tuition, and academic policies and the fruits of David's educational labor would not (alas) be officially documented. Similarly, in David and Goliath, the teenage shepherd's defiant act of imagination was to eschew the armor, weaponry, and expected social rules for combat. Instead, the teenage shepherd placed a stone into the leather sling that he used his whole life and sprinted boldly toward his gigantic opponent. Both David the undocumented student at Berkeley and David of the allegorical story in the Bible made courageous choices in favor of their own assets, experiences, and “funds of knowledge” when they lacked the luxury of other good choices. Not all such desperate choices work out well in the real world, of course, but sometimes the condition of struggling with only “bad” choices can unmoor us from the unhelpful substrata of assumptions that invisibly anchor us to the conventional wisdom and to status quo bias.

The continued fact of a Dream Act or comprehensive immigration reform being just out of reach in the near future, the DACA district court ruling in Texas now before the Fifth Circuit, and the proposed age requirements in the Biden administration's DACA NPRM that would exclude younger Generation Z students from future DACA eligibility all speak to how today's undocumented students do not have the luxury of good choices. Thus, in this exploratory Article, I have tried to take a step back from the conventional strategies of seeking to pass favorable state laws for Dreamers and of interlocking financial aid to undocumented students within the larger machinery of “public benefits” state and university financial aid pools (even though these are strategies I support and that the “hearts and minds of voters” transformational aspects of this model could also redound to the benefit of those conventional political strategies over a period of years). In so doing, I point out the underappreciated benefits (both economic and non-economic of a supplemental fundraising strategy not dependent on favorable predicate conditions with DACA or state financial aid laws. This grassroots entrepreneurial strategy disrupts the traditional roles of “rescuers and recipients” by placing undocumented college student activism and agency at the center, with university officials and private philanthropic organizations in the roles of partners and catalysts. Moreover, this model is not about one student standing alone to battle against the giant obstacle of a broken immigration system. Rather, it is about thousands of such college students acting in coalition, bonded together by a shared commitment to educational opportunities for undocumented students in furtherance of what Dr. King called “the beloved community.”

By contrast, conventional funding approaches by universities to assist undocumented students can at times seem to default to a “come to me” Goliath-like mindset with philanthropic partners that does not maximize fundraising opportunities and lacks agility. As noted in Section III of this Article, even America's leading flagship public universities--precisely the type of universities the Court identified years ago in Grutter v. Bollinger as the campuses where “it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity” do not have robust private donor/scholarship programs for undocumented students. In addition, some campuses with partnership programs with the largest private funds (several University of California, University of Washington, and California State University campuses) have had those private funds recently redirected to “red state” colleges with even greater challenges. Thus, new partnership models with nontraditional “price points” are needed if students, universities, and philanthropic organizations are going to clear open pathways of opportunity during this challenging era. Until such a time when talented undocumented students like David and Areli have robust opportunities to complete their university degrees and fully participate in American democracy, a “come to me” posture with funders is not enough. Undocumented college students and their classmates deserve university leaders, faculty, administrators, and philanthropic program officers who will take action with them by dreaming beyond the bounds of today's status quo, especially when that status quo is always under threat, such as by the pending DACA litigation.

B.A. and J.D., UC Berkeley; Research Associate, Civil Rights Project/Proyecto Derechos Civiles (UCLA); Compliance & Civil Rights Investigator, UC Riverside.

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