Following months of urging by undocumented students, the University of California next week will consider a proposal to allow the hiring of those students for jobs across the 10-campus university system.
If the UC board of regents takes that step, UC would become the first known institution to argue that a federal statute’s ban on the hiring of undocumented persons does not apply to states. The issue could result in a court challenge, experts said.
If the proposal is adopted, the students say it would greatly benefit undocumented immigrant students who currently can’t work on-campus jobs because they don’t have legal status. Not only does that make it more difficult to afford college, but those students also miss out on job opportunities that are critical to their learning experiences, such as research positions and internships.
Since last fall, a coalition of undocumented students and legal scholars has been calling on UC to authorize those students to work across the university system. They say UC is free to do so because, in their view, a 1986 federal statute that bans the hiring of immigrants without legal status doesn’t bind states and their entities like UC. That’s because, according to the theory, states historically have had the power to determine qualifications for state employees, and the 1986 statute only specifies that it applies to federal entities.
Now, after students with the coalition spent months reaching out directly to members of UC’s board of regents, the proposal could get a formal vote at next week’s regents meeting in Los Angeles. The regents on Thursday will discuss and vote on a policy to ensure all students “have equal access to educational enrichment activities, including student employment,” regardless of their immigration status, a UC spokesperson said in a statement to EdSource.
“The proposed action is consistent with the University’s belief that work enhances the educational experience and expands opportunity. We believe it is our responsibility, as a public institution, to serve and support all students, as allowable by law,” the spokesperson added.
Jeffry Umaña Muñoz, a third-year student at UCLA and one of the leaders of the student coalition, said UC has an opportunity to create a more equitable system for undocumented students by adopting the proposal.
“When a student is accepted to UC, they are promised a lot of opportunities and the ability to really expand their education far outside of the classroom,” he said. “But what ends up happening for undocumented students is that promise never materializes. I think that’s a really clear point of inequity for the UC, and it’s something that they have to address.”
Muñoz said several regents have been receptive to the idea, though it’s not clear whether a majority support it.
The legal theory was developed by UCLA’s Center for Immigration Law and Policy and is supported by legal scholars including Erwin Chemerinsky, the dean of UC Berkeley’s School of Law.
Historically, states have followed the federal statute, the Immigration Reform and Control Act, and required proof of legal status for employment. The scholars are asking UC to deviate from that tradition and argue that UC has the right to do so because it is a state entity.
“In short, when Congress passed IRCA, Congress did not curtail states’ historic power to determine the employment qualifications of state employees,” the co-directors of the UCLA center, Ahilan Arulanantham and Hiroshi Motomura, wrote in a letter detailing their theory. “As a result, IRCA’s prohibition on hiring undocumented persons does not bind state government entities. State entities can lawfully hire undocumented students irrespective of employment authorization status under federal law.”
If UC were to allow the hiring of undocumented students, it could attract a legal challenge, throwing the issue into the courts. At the same time, supporters say, it could be life-changing for students like Melissa Palacios, who earned her bachelor’s at UCLA and is now a master’s student in education at the campus.
Palacios, who was born in Mexico before her family later moved to the Los Angeles neighborhood of Lincoln Heights, wants to be a high school history teacher with an emphasis on ethnic studies. She also has a bilingual authorization in English and Spanish. Earlier this school year, she was offered a research assistant position for a professor studying bilingualism. But because of her legal status, she couldn’t take the job.
“It was obviously something that I was very interested in and passionate about but, unfortunately, I wasn’t able to take it,” Palacios said.
The same was true for Muñoz, who was born in El Salvador. He had no choice but to turn down a job he was offered at the UCLA Labor Center to conduct research on immigrant communities and work on the editing of a book about undocumented immigrant youth.
Being able to work at UC would also make it easier for undocumented students to afford to attend the system’s campuses, Palacios pointed out. In her case, she could have taken part-time work-study jobs at UCLA’s dining halls or student centers to help pay for college.
Palacios will complete her master’s this year, but as of now, she also won’t be able to take any teaching jobs after graduating. If UC were to allow the hiring of undocumented students like Palacios, she would be eligible to teach at schools run by UC, such as the UCLA Lab School or the UCLA Community School. She’s also hopeful that UC’s decision would set a precedent and public school districts like Los Angeles Unified would do the same.
Palacios said it’s especially disappointing because Los Angeles, like most of California, struggles to find bilingual teachers like herself.
“I have a bachelor’s. I am soon to have a master’s. I have my teaching credentials, which included California teaching examinations and included over 400 hours of student teaching. But I still cannot be hired,” she said.
UC has the ability to change that if it agrees with the legal theory developed by UCLA’s Center for Immigration Law and Policy, said Arulanantham.
In 1986, President Ronald Reagan signed the Immigration Reform and Control Act, which prohibited employers from hiring undocumented immigrants. But the scholars at UCLA argue that the statute does not bind states, particularly because a 1996 amendment specified that entities include “any branch of the federal government” but didn’t mention states.
“The failure to mention the states there, I think, is very powerful evidence that Congress did not act clearly enough to bind the states,” Arulanantham said.
Arulanantham and Motomura fully detailed their legal theory in the letter last fall that has since been signed by more than two dozen legal scholars from across the country. That includes Chemerinsky and Kevin Johnson, the dean of the UC Davis School of Law.
UC’s Office of the General Counsel, which didn’t make a representative available for an interview, hasn’t yet publicly taken a stance. Privately, lawyers with the office haven’t disagreed with the theory but have expressed some wariness, Arulanantham said.
“I understand that at some level because for 35 years, this law has been on the books and most people have at least assumed that it did apply to state government entities,” he added.
Palacios, the UCLA master’s student, said that when she initially applied to UCLA, she was under the impression that UC was a “sanctuary university” for undocumented students like herself. She said the university could live up to that reputation by allowing students like her to be hired for campus jobs.
It’s something Palacios added is particularly important now because a majority of undocumented immigrants graduating from high schools don’t have protections that were offered under the Obama-era Deferred Action for Childhood Arrivals program. That program offered protections from deportation and permission to work for tens of thousands of young people, but no new applications have been accepted since 2017. While the proposal being considered by UC wouldn’t protect undocumented students from deportation., it would allow them to work.
“The university has two choices,” Palacios said. “One is to admit undocumented students and then let them just struggle and survive. Or they have the opportunity to really make a change in their lives.”