A federal judge has ruled that the University of North Texas can’t charge out-of-state American students higher tuition than undocumented Texans who qualify for lower in-state tuition under a 2001 Texas law.
UNT lawyers appealed last week’s decision by U.S. District Judge Sean Jordan, a Trump appointee, over the weekend. If upheld, the decision could impact other Texas public universities, which depend financially on charging higher out-of-state student tuition.
The ruling centers on Texas’ 2001 law allowing undocumented students who have lived in Texas for three years and graduate from a Texas high school to pay in-state tuition.
This recent challenge by the Texas Public Policy Foundation, on behalf of the student organization the Young Conservatives of Texas, could provide a new path forward for some Texas lawmakers who have wanted to eliminate the in-state tuition benefit for undocumented students since at least 2015.
In 2021, a little more than 22,000 students were enrolled in Texas colleges and universities using this benefit.
Two years ago, the right-leaning TPPF filed the lawsuit, pointing out that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 states that an individual “who does not legally reside in the United States should not be eligible for a postsecondary education benefit granted on the basis of where someone lives unless United States citizens qualify for the same benefit.” Therefore, they argued, out-of-state students shouldn’t have to pay more than undocumented Texas students.
Jordan, the federal judge, agreed.
“Because Texas’s non-resident tuition scheme directly conflicts with Congress’s express prohibition on providing eligibility for postsecondary education benefits, it is preempted and therefore unconstitutional,” Jordan wrote.
Other university systems in the state said they are still reviewing this ruling.
But Thomas A. Saenz, president of the Mexican American Legal Defense and Educational Fund, criticized the judge’s ruling.
“It’s hard not to see it as a Trump judge overreaching to try to change longstanding law in the state of Texas,” said Saenz, who is also MALDEF’s general counsel. He found the ruling surprising given the amount of time the state law has been in place.
“It’s obviously a political lawsuit, and granting that political lawsuit is what’s disturbing,” he said.
Michael Olivas, a professor emeritus at the University of Houston Law Center who helped write the 2001 law, slammed the judge’s decision.
He said the judge did not take into account the other exceptions that allow out-of-state students to receive the lower, in-state tuition rate, including the waiver that allows students in bordering states to receive in-state tuition at some institutions.
“These students are trying to make a political point for an issue that was a non-issue and then obfuscated it,” he said.
Olivas also said TPPF lawyers did not adequately demonstrate how out-of-state students are harmed by the law, given that any U.S. citizen can qualify for in-state tuition if after living in Texas for a year before enrolling in college, while an undocumented student must live in Texas for three years before qualifying for in-state tuition.
Olivas expects advocacy and legal immigration groups to get involved in the appeal of the UNT ruling.
This is the law in question, which was signed by Rick Perry. Note how it says it was “effective immediately”. That happens when a bill is passed in both chambers with (I believe) a two-thirds or more majority; otherwise, newly enacted laws have to wait 90 days before taking effect. Nothing has changed about this law, or I presume about that 1996 federal law that supposedly invalidates it. The only thing that has changed is the Republican Party, which used to support things like this as a matter of routine. Combine a bunch of political opportunists with deep pockets and a Trump judge, and this is what you get.
It’s a bad ruling based on faulty logic, and it does something for Republican legislators that they would like to do but maybe don’t want to have to own. I have no idea what the fate of this will be down the line – for all the obvious reasons, I have no faith in either the Fifth Circuit or SCOTUS, but I’m willing to be pleasantly surprised. I’ll keep an eye on it.