Unit 6: Dicussion

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 people 3 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 Captur es 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/cons ideration -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 J aimes 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 emi grated 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 p ut 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 scholarsh ip 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 schol arship 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 “Dreamer s” 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/ (las t 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 Re g. 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 afte r 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, M ISSOURI , 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 ex cluding 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 action s 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 an d 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 t emporary 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 au thority to create new immigration policy. Amy Howe, Court will review Obama administration’s immigration policy: In Plain Eng- lish , SCOTUS BLOG (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 , SCOTUS BLOG , 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 th e 2014 requirements. 15. Consideration of Deferred Action for Childhood Arrivals (DACA) , supra note 3. Requirements to be eligible for DACA status include: (1) mu st 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 hol d 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 indiv iduals “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.p df. 19. Consideration of Deferred Action for Childhood Arrivals (DACA) , supra note 3. 20. Consideration of Deferred Action for Childhood Arrivals Process: Frequen t- 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 N eufeld, 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 mor e 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 J uly 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://ww w.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 M exico, 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 polic y 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 loc al 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, a nd $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 Def erred 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 (Ja n. 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 st atus 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 r esident 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 consi ders 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 t he 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 qualif ying 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 Sta tes 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 st atus 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 updat ed Dec. 16, 2015). 45. Consideration of Deferred Action for Childhood Arrivals Process: Frequent- ly Asked Questions , supra note 20. 46. See Tuition Benefits for Imm igrants , 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 documen t 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 eligible 54 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 bill s, 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 g rade 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 Sta te 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 f unds 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 pr eamble 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- doc umented 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 b y 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 he ld 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, Commissio ner, 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 titl e 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 s tatus. 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 unlawf ul 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 Ch ristian 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, 2 015) (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 au thor (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 sem ester, 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/ (las t 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 an d 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 Fli ght 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 d ocumentation. 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 st udent 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 b enefiting 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 . . . d eprive 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, app lying 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: Newsroo m 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 Constituti onal 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 differ ent 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 “impermissi bly 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 su fficiently “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 CONSTITUTION AL 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 viol ate 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” standar d 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 “burde n 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 betw een 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 und ocumented 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 par ents 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,” an d 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 dis criminatory 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 current 114 – 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 con sidered 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 DAC A 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 ord inary 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 an y 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 41 7. 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 fi nd 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. 2 012). 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 ba sed 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 app ropriate 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 co nsidered 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- grant s, 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 , sup ra 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 rega rded as residents of Missouri 131 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 o r 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 st udents 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 fr om 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 Underrepre sented 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 whet her 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 Mi ssouri, 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 Chil dhood 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 & Sc holarships , 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 ava ilable 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 tes t. 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, no t 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 undocumen ted 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 clas s.” 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 scholars hips, 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 sustainabl e 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 t o 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 increa sing 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 Hi spanic 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 tha n 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 Cour ts’ 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 th e 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 year s, 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 str onger 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 u ntil 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 ind ividual 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 tha t 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 r eview 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 f or Childhood Arrivals Process: Frequent- ly Asked Questions , supra note 20. 158 . Id. 159 . Consideration of Deferred Action for Childhood Arr ivals (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 und ocumented 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 Missour i’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 determ ine 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 an d 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 b udget reserved for state 164 . See NOWAK & ROTUNDA , supra note 95, at 390 (“[T]he Court will not up hold 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 t hat 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 indivi duals 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 sta tus. 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 unne cessarily 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 i f 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 th e 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 st ate’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 significan tly” 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 leg ally 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 deny ing 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 hi gher 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 Unf ortunately, 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 ofMissouri LawReview isthe property ofUniversity ofMissouri atColumbia, School ofLaw anditscontent maynotbecopied oremailed tomultiple sitesorposted toa listserv without thecopyright holder'sexpresswrittenpermission. However,usersmayprint, download, oremail articles forindividual use.