By: Hannah A. Quigley
Volume IX – Issue II – Spring 2024
I. Introduction
On January 25, 2024, the University of California (UC) Board of Regents rejected a proposal called Entitled Opportunity for All that would have allowed undocumented students to work on-campus jobs. [1] Michael Drake, the UC’s president, claimed that “the proposed legal pathway [was] not viable” under current state and federal regulations. [2] With one swift vote, the UC board extinguished a fiery student-led advocacy movement marked by hunger strikes and vocal protests. [3]
Undocumented college students face a disproportionate financial burden. Ineligible for federal grants and aid programs, they must scramble to cover all of their educational and living expenses without assistance. [4] When state and federal laws prevent these students from seeking legal employment, they must find alternate avenues through which to earn a paycheck.
Legal barriers do not prevent young, undocumented workers from joining the U.S. labor force. Instead, they encourage immigrants to accept “underground jobs.” [5] Illicit positions foster abusive labor conditions due to a lack of oversight. [6] Permitting undocumented students to work on-campus jobs could quite literally ensure their safety—if legally possible. The UC system serves as a perfect case study under which to analyze this legal question. This paper will first examine the intersection of immigration and labor law. Next, it will detail UC students’ proposal lobbying the system to hire undocumented student workers. Finally, the paper will delve into the reasons why UC regents rejected this proposal before drawing implications.
II. Overview of Immigration and Labor Law: Federal and State
Today’s immigrant employment system dates back to 1986, when the U.S. Congress passed landmark legislation entitled the Immigration Reform and Control Act (IRCA). This statute aimed to limit undocumented immigration via closing off job opportunities. Its first section deemed it “unlawful for a person or other entity to: (1) hire (including through subcontractors), recruit, or refer for a fee for U.S. employment any alien knowing that such person is unauthorized to work, or any person without verifying his or her work status; or (2) continue to employ an alien knowing of such person's unauthorized work status.” [7] Thus, for almost four decades, federal law has prohibited any employer from consciously hiring undocumented workers. However, undocumented immigrants can circumvent these background checks by presenting fraudulent visas, meaning that employers may not know their staff’s true status. [8]
Because federal law supersedes state law, entities like California assume they cannot pass contradictory statutes. Thus, California’s immigration and labor law fits within the restrictions IRCA outlines. However, California boasts more liberal immigration policies than the rest of the nation: Its status as a sanctuary state couples with its large immigrant population. [9] California statutes specify that employers cannot deny any workers their “protections, rights, and remedies” regardless of immigration status, certain or uncertain. [10] Furthermore, employers seeking to conduct further inquiries into a worker’s immigration status must show “clear and convincing evidence” of a federal violation. [11] This stipulation prevents managerial staff from submitting baseless complaints; however, it still allows employers to fire individuals if they have conclusive proof of their undocumented status, thus complying with IRCA. Lastly, California effectively outlaws discrimination against undocumented immigrants in the workplace because it labels prejudice based on national origin unlawful. [12] Of course, if employers know of job applicants’ undocumented status, IRCA requires that they deny them work or fire them.
Though California must still follow federal employment regulations, its efforts to secure undocumented immigrants’ civil rights within the labor force gave UC student activists hope that California could become the first state to legalize undocumented labor on college campuses.
III. University of California Students’ Proposals
As early as May 2022, the Undocumented Student-Led Network announced a campaign imploring the UC system to hire undocumented students called Entitled Opportunity for All. [13] Student leaders formally launched this project in a letter to the UC system, writing that “[undocumented] students…are being systematically denied opportunities afforded to their classmates, including employment opportunities that would enhance the research, education and public service mission of the university.” [14] In drafting their proposal, students partnered with top law professors at UC Berkeley, New York University, Yale University, Cornell University, Stanford University, and more. [15] These legal scholars believed loopholes existed within IRCA that would allow the UCs to circumvent it.
UCLA’s Center for Immigration Law and Policy primarily ideated this workaround, boiling their plan down to the classic states rights versus federal rights dilemma. [16] In a public memo, faculty experts Ahilan Arulanantham, Hiroshi Motomura, and Astghik Hairapetian lay out their argument in four distinct parts. [17]
First, the authors explain that IRCA does not legally bind states. In 1996, Congress passed an amendment to IRCA that clarified the statute applied to “any branch of the federal government.” [18] Nowhere does this amendment explicitly mention state entities. [19] Furthermore, the federal government could not have simply implied that IRCA governed states as well: Other sweeping federal statutes like The Civil Rights Act of 1964 and the Fair Labor Standards Act cover states because the law’s text expressly mentions them. [20] Because IRCA only mentioned federal-level agencies, states need not adhere to its restrictions.
Second, to further develop their first claim, the authors demonstrate that Congress would have needed to clearly dictate that IRCA applied to the states in order to make it good state law. Supreme Court precedent illustrates that the federal government cannot intrude on a state’s right to govern itself without using clear language in a statute. [21] In other words, though federal law constitutes “the law of the land,” Congress would still have had to make it clear that their statute restricted states’ ruling power in any way. Otherwise, this would lead to a Tenth Amendment battle where individual states defended their sovereignty. [22] Because the Supreme Court allows each state to define its own employment and labor processes, the federal government cannot interfere with this without warning. [23]
Third, the authors also clarified that any judge should consider the UC system a “state entity” subject to California’s own authority. The Supreme Court itself recognized the UC system as a California state agency in 1934 through Hamilton v. Regents of California: Thus, legal precedent supports this viewpoint. [24] After this decision, the Ninth Circuit Court of Appeals has continuously held that the UC system “is protected by the State’s sovereign immunity.” [25]
Finally, the authors posit that besides IRCA, no other existent legal restriction bars undocumented immigrants from seeking employment. While federal law prevents unauthorized individuals from obtaining “State or local public benefit,” this same statute does not include employment in its list of privileges. [26] Additionally, as of 2020, California law itself no longer prohibits undocumented immigrants, even permitting them to run for public office. [27] Though employers would have to withhold federal aid from Social Security or Medicare from undocumented staff, this presents no obstacle to hiring them in the first place. [28]
According to this interpretation of IRCA, all California entities—including its University system—can freely hire any individual, regardless of his or her immigration status.
IV. Legal Reasoning Behind Regents’ Rejection
Ultimately, a majority of the UC Board of Regents decided not to adopt Entitled Opportunity for All. Michael Drake commented that this novel interpretation of IRCA “carries significant risk for the institution and for those [the UC] serves.” [29] The Board of Regents then made a vague commitment to re-evaluating their position at a later date, possibly next year. [30] They explained that, in its current iteration, the proposal would actually leave students vulnerable to deportation, faculty liable for criminal prosecution, and the university system at risk of steep fines. [31]
The Board of Regents also tabled this motion because they caved under political pressure. Shortly before the scheduled vote, the Department of Homeland Security warned the UC that the “Biden administration might be forced to sue or take administrative action blocking the effort if the proposal was approved.” [32] While Republicans lambast Biden for his so-called weak stance on the border, his administration becomes hyper-aware of any “breach” to federal immigration law. [33] Furthermore, Biden seeks re-election in the fall of 2024, complicating the debate; At this politically charged time, Biden does not want to jeopardize his bid for the White House with what Republicans would consider immigration scandals. [34] As an anonymous UC official remarked, “[The Biden Administration’s] main question is: ‘Why now?’” [35]
In addition to the President himself, California politicians have issued threats to the UC if they passed Entitled Opportunity for All. Darrell Issa, the Congressman for California’s 48th district, wrote an open letter to Gavin Newsom, California’s governor and a UC Regent. [36] Using criminalizing language like “illegal immigrants,” Issa reminded Newsom of IRCA regulations. [37] Objecting to a novel interpretation of IRCA, Issa argued that the Supreme Court has ruled in favor of federal supremacy and “leaves no room for states to adopt their own immigration employment measures, nor can they conflict with the federal law’s objectives and purposes.” [38] Before closing his letter, Issa vaguely threatens to withhold the UC’s federal funding, challenging the Board to “provide a detailed estimate of the fiscal impact to students by forgoing future federal assistance.” [39] If the Board of Regents had approved the Undocumented Student-Led Network’s proposal, Republican representatives would have crippled the institution’s finances.
Student leaders condemned the Board’s choice. Coalition leader Jeffrey Umaña Muñoz stated, “The UC is hiding behind an election year and is hiding behind the threat of right wing extremism.” Though passing Entitled Opportunity for All seems infeasible now, ultimately, states cannot truly predict a policy’s constitutionality until courts test it. The only way to accomplish this is by passing Entitled Opportunity for All, defending it through legal means, and allowing judges to determine the next legal precedent.
V. Implications
If the UC Board of Regents approves this policy at a different time, it could ensure that undocumented immigrants can earn a living wage in California. Currently, federal immigration policy uses the DACA rule, or Deferred Action for Childhood Arrivals. [40] An Obama-era program limiting indiscriminate deportation and detention, DACA protects those who came to the United States under the age of 16 and who resided in the U.S. for at least five years prior to 2012. [41] DACA also provides these individuals with employment authorization—a workaround in and of itself to IRCA. [42] However, lower federal courts currently seek to strike down DACA, even after the Supreme Court upheld the program in 2020. [43] For example, in 2021, the U.S. District Court for the Southern District of Texas “[contended] that the Deferred Action for Childhood Arrivals (DACA) program was illegal.” [44] Texas then passed an injunction on the policy, freezing all new DACA applications and renewals. [45] If federal courts succeed in rolling back the DACA program through re-evaluation in the Supreme Court, current students ineligible for DACA or with expired status could not legally find employment. [46] Thus, a program like Entitled Opportunity for All would provide an extra job security measure in a post-DACA nation
Additionally, student activists argue that Entitled Opportunity for All would help level the economic playing field at the UC system. Students involved with the Undocumented Student-Led Network argued that the proposal could “make it easier for undocumented students to afford to attend the system’s campuses” through part-time jobs at dining halls or student centers. [47] After college, post-graduates could find work at affiliated UC schools or laboratories. [48] As Jeffrey Umaña Muñoz commented: “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…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.” [49]
VI. Conclusion
The UC Board of Regents recently tabled a revolutionary proposal called Entitled Opportunity for All that would have allowed undocumented students to work on-campus jobs, potentially breaking federal law in the process. Theoretically, IRCA limits California policies, mandating that no employer can knowingly hire an undocumented immigrant. However, the student coalition Undocumented Student-Led Network partnered with legal experts at UCLA to craft a new legal argument: that IRCA does not explicitly apply to state entities like the UC system. Due to political backlash, however, the Board of Regents decided not to adopt this controversial interpretation. Despite its current unpopularity, Entitled Opportunity for All could safeguard immigrant jobs if courts continue to challenge DACA and serve as an equalizer among undocumented students and their peers.
Endnotes
[1] Mikhael Zinshteyn, “UC rejects proposal to allow campuses to hire undocumented students,” Cal Matters, January 25, 2024, https://calmatters.org/education/higher-education/2024/01/undocumented-students-2/.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Immigration Reform and Control Act of 1986, 100 Stat. (Nov. 6, 1986). LexisNexis.
[8] Illegal Aliens: Fraudulent Documents Undermining the Ef ectiveness of the Employment Verification System: Hearings Before the Subcommittee on Immigration and Claims Committee on the Judiciary (1999) (statement of Richard M. Stana). https://www.govinfo.gov/content/pkg/GAOREPORTS-T-GGD-HEHS-99-175/pdf/GAOREPORTS-T-GGD-HEHS-99-175.pdf.
[9] Marisol Cuellar Mejia, Cesar Alesi Perez, and Hans Johnson, “Immigrants in California,” Public Policy Institute of California, accessed January 2024, https://www.ppic.org/wp-content/uploads/jtf-immigrants-in-california.pdf.
[10] Cal. Civ. Code § 3339. LexisNexis.
[11] Ibid.
[12] Wilcox, California Employment Law, LexisNexis.
[13] Miriam Jordan, “Students, Legal Scholars Push California Universities to Hire Undocumented Students,” The New York Times, October 19, 2022, https://www.nytimes.com/2022/10/19/us/daca-dreamers-university-of-california.html?ref=oembed.
[14] Ibid.
[15] Ibid.
[16] Michael Burke, “University of California's undocumented students push for right to campus jobs,” EdSource, https://edsource.org/2023/university-of-californias-undocumented-students-push-for-right-to-work-campus-jobs/690.413.
[17] Memorandum by Ahilan Arulanantham, Hiroshi Motomura, and Astghik Hairapetian, “Memo Analyzing Whether IRCA Applies to States,” October 2022, https://docs.google.com/document/d/1TDBqeo4MUmHk2mxlwCd0tYvWYLV1lxVX4m-jO4CV7-E/edit.
[18] Ibid.
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Adrian Florido, “The University of California Denies Campus Jobs for Undocumented Students,” January 26, 2024, in NPR: All Things Considered, podcast, audio, https://www.npr.org/2024/01/26/1227247600/the-university-of-california-denies-campus-jobs-for-undocumented-students.
[30] Cora Del Mar Murphy-Macos, “UC Regents suspend action on hiring undocumented students, defer vote for a year,” UC Berkeley Labor Center, last modified January 29, 2024, https://laborcenter.berkeley.edu/uc-regents-suspend-action-on-hiring-undocumented-students-defer-vote-for-a-year/.
[31] Florido, “The University.”
[32] Blake Jones, “Biden officials privately resisted University of California plans to hire undocumented students,” Politico, last modified January 24, 2024, https://www.politico.com/news/2024/01/24/biden-undocumented-immigrants-university-of-california-00137449.
[33] Ibid.
[34] Ibid.
[35] Ibid.
[36] Ibid.
[37] Issa Darrell to Gavin Newsom, May 15, 2023, https://www.scribd.com/document/646217319/Issa-letter-on-University-of-California-vote#from_embed.
[38] Ibid.
[39] Ibid.
[40] Deferred Action for Childhood Arrivals, 87 Fed. Reg. (Aug. 30, 2022) (to be codified at 8 C.F.R. pt. 106, 236, 274a). https://www.govinfo.gov/content/pkg/FR-2022-08-30/pdf/2022-18401.pdf.
[41] Ibid.
[42] Ibid.
[43] Zinshteyn, “UC rejects,” Cal Matters.
[44] Texas v. United States, 549 F. Supp. (July 16, 2021). LexisNexis.
[45] Zinshteyn, “UC rejects,” Cal Matters.
[46] Ibid.
[47] Ibid.
[48] Ibid.
[49] Ibid.