Undocumented students in Texas are no longer eligible for in-state tuition after Texas agreed Wednesday with the federal government’s demand to stop the practice.
The abrupt end to Texas’ 24-year-old law came hours after the U.S. Department of Justice announced it was suing Texas over its policy of letting undocumented students qualify for lower tuition rates at public universities. Texas quickly asked the court to side with the feds and find that the law was unconstitutional and should be blocked, which U.S. District Judge Reed O’Connor did.
Texas Attorney General Ken Paxton claimed credit for the outcome, saying in a statement Wednesday evening that “ending this discriminatory and un-American provision is a major victory for Texas,” echoing the argument made by Trump administration officials.
“Under federal law, schools cannot provide benefits to illegal aliens that they do not provide to U.S. citizens,” U.S. Attorney General Pam Bondi said in a statement Wednesday. “The Justice Department will relentlessly fight to vindicate federal law and ensure that U.S. citizens are not treated like second-class citizens anywhere in the country.”
The Justice Department filed its lawsuit in the Wichita Falls division of the Northern District of Texas, where O’Connor hears all cases. O’Connor, appointed by President George W. Bush, has long been a favored judge for the Texas attorney general’s office and conservative litigants.
Texas began granting in-state tuition to undocumented students in 2001, becoming the first state to extend eligibility. A bill to end this practice advanced out of a Texas Senate committee for the first time in a decade this year but stalled before reaching the floor.
The measure, Senate Bill 1798, would have repealed the law, and also required students to cover the difference between in- and out-of-state tuition should their school determine they had been misclassified. It would have allowed universities to withhold their diploma if they don’t pay the difference within 30 days of being notified and if the diploma had not already been granted.
Republican Sen. Mayes Middleton of Galveston authored the legislation, which would have prohibited universities from using any money to provide undocumented students with scholarships, grants or financial aid. It would have also required universities to report students whom they believe had misrepresented their immigration status to the attorney general’s office and tied their funding to compliance with the law.
Responding to the filing Wednesday, Middleton wrote on social media that he welcomed the lawsuit and hoped the state would settle it with an agreement scrapping eligibility for undocumented migrants.
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This issue has come before the courts before. In 2022, a district court ruled that federal law prevented the University of North Texas from offering undocumented immigrants an educational benefit that was not available to all U.S. citizens. The 5th U.S. Circuit Court of Appeals threw out that case on procedural grounds, but noted there likely were “valid preemption challenges to Texas’ scheme.” Trump administration lawyers repeatedly cited that finding throughout Wednesday’s filing.
“States like Texas have been in clear violation of federal law on this issue,” said Robert Henneke, executive director and general counsel at the Texas Public Policy Foundation, the conservative think tank that brought the 2022 lawsuit. “If anything, it’s surprising that this wasn’t brought earlier.
Don Graham, a co-founder of TheDream.US, the largest scholarship program for undocumented students, said these young people already face significant hurdles to get to college. They cannot access federal grants and loans, so legal action to rescind in-state tuition could prevent them from completing or enrolling in college altogether, he noted.
“It’ll mean that some of the brightest young students in the country, some of the most motivated, will be denied an opportunity for higher education,” Graham said. “And it’ll hurt the workforce, it’ll hurt the economy.”
Hundreds of Texas students who have been awarded a Dream.US scholarship went into nursing and education, professions that are struggling with shortages. Recent economic analysis from the American Immigration Council suggests rescinding in-state tuition for undocumented students in the state could cost Texas more than $460 million a year from lost wages and spending power.
The loss of thousands of students will also have an immediate financial impact on universities, according to available data. About 20,000 students using the law to enroll at Texas universities paid over $81 million in tuition and fees in 2021, according to a report from progressive nonprofit Every Texan. In the wake of the court’s ruling, advocates said stifling those enrollments would create cascading effects.
“This policy has been instrumental in providing access to higher education for all Texas students, regardless of immigration status, and dismantling it would not only harm these students but also undermine the economic and social fabric of our state,” said Judith Cruz, assistant director for the Houston region for EdTrust in Texas.
At least one organization, Immigrant Families and Students in the Fight, which goes by its Spanish acronym FIEL, released a statement saying it would challenge the court’s judgment. “Without in-state tuition, many students who have grown up in Texas, simply will not be able to afford three or four times the tuition other Texas students pay,” FIEL Executive Director Cesar Espinosa said. “This is not just.”
I want to note that the 2001 law passed with near-unanimous support in both chambers. It was not only uncontroversial, it was popular. Political support for such laws can certainly change over time, but it’s bizarre to me that it could have been illegal all this time. And that’s even before we get into this lightning-fast lawsuit-followed-by-immediate-settlement, which sure doesn’t seem like how the legal system usually acts. I may not be a lawyer, but Steve Vladeck is, and he calls bullshit, too.
Within a span of just over six hours, (1) the federal government sued Texas challenging a state law under which undocumented immigrants who reside in Texas are eligible for in-state tuition at Texas’s colleges and universities; (2) Texas agreed to “settle” the lawsuit by consenting to a judgment under which the state would be permanently enjoined from enforcing the law because it violates the Supremacy Clause of the U.S. Constitution (ostensibly because it is preempted by federal law); and (3) the consent judgment was approved by the district judge—Judge Reed O’Connor, who had a 100% chance of having this case assigned to him, since it was filed by the federal government in … the Wichita Falls Division of the Northern District of Texas.
There are at least three problems with what happened here. First, the Supreme Court has long made clear that Article III courts lack the power to adjudicate such transparently collusive lawsuits—because there is no true case or controversy when “both litigants desire precisely the same result.” Indeed, district courts are supposed to have an obligation, in such circumstances, to protect the jurisdiction of the federal courts. Not so much, here.
Second, even if there’s some way to satisfy Article III in this context, it’s Republicans who have spent much of the past decade railing against what they’ve described as “sue-and-settle,” where a federal agency defendant agrees to settle a lawsuit with a plaintiff on the (alleged) ground that the agency agrees with the plaintiff’s regulatory goals. Those cases (1) usually take longer than six hours; (2) tend to involve contexts in which the agency has a good-faith argument that it’s going to lose the lawsuit if it doesn’t settle; and (3) are typically brought by directly affected interest groups. In all three respects, this seems … worse. Indeed, part of what appears to have prompted yesterday’s activity was the fact that two bills intended to repeal the 2001 state law failed this week in the Texas Legislature. A collusive lawsuit by the United States against a state shouldn’t be a backdoor when the democratic process has already declined to intervene.
And third, of all of the courthouses in which the United States and Texas could’ve played this game, they singled-out Wichita Falls—one of the handful of “single-judge” divisions remaining in any federal district court in the country after the Judicial Conference’s March 2024 policy statement strongly discouraging the practice. Not only does that suggest a lack of confidence on the parties’ part that a randomly assigned judge would have endorsed these shenanigans, but it also drives home that, for all of the complaining by the current administration and its supporters about “judge shopping” by litigants challenging Trump policies, the only real judge shopping that’s currently going on is by the federal government.
It’s all a stain on the federal courts—one that, in this case, comes at the literal expense of as many as 20,000 Texans who have been living in the United States since they were children. Everyone involved in this sham proceeding ought to be ashamed of themselves—and, if given the chance, the Fifth Circuit shouldn’t let it stand. I’m not holding my breath.
The long list of things that the next Democratic government needs to deal with includes as a high priority killing off these judicial cheat codes for the likes of Ken Paxton and his cronies. That’s too far in the future to worry about right now. The thing to do now is appeal, however long a shot that is. I wish I had a better answer. The other thing to do is make this a part of the case against Trump on the grounds of limitless, unrelenting grift, corruption, and crime. The biggest problem there is that it’s so vast regular people have a hard time wrapping their minds around it. The best way to deal with that is to tell relatable stories about it, and boy is there no shortage of those. Daily Kos and Reform Austin have more.
Along those lines, did not Gaulieter Abbott also propose college tuition hikes across the board?
Good.
Already had a child not get into UT because she wasn’t of sufficient ethnic origin, and because the decision was made to attend college east of TX, have paid out-of-State tuition for 3+ yrs now because ‘once enrolled as out-of-State, forever out-of-State’ for tuition purposes. And yup, the child is a bonafide US citizen and current resident of TX.
Why should undocumented students be paying less tuition than documented ones ?
If you’re a fan of legal immigration, unfortunately the decision to eliminate ‘perks’ to illegal immigrants is the stick needed to get folks to do it right to begin with, or at least make an effort to become a US citizen instead of toiling in anonymity.
I’ve gone back to school, and when I recieved my bill, there was a notice that I pay an extra $400 to support others who are not able to afford tuition. If I’m forced to support being charged extra, which I cannot afford, then I don’t mind supporting a bill like the one mentioned in this article.
C. L., could it be that the child did not meet the standards required? Top 10% get in.
“The “Top 10%” refers to a Texas state law guaranteeing admission to the top 10% of graduating high schoolers to public colleges and universities in Texas, according to BestColleges.com. This rule applies to all public universities within the University of Texas System, including UT Austin and UT Dallas”
I went to Oklahoma State University, by choice, and paid out-of-state tuition; I ain’t whining. Just finished paying tuition of son who went to Berklee, I ain’t bitching.
Not the same thing Fagan.
I understand why one of the Left would choose to call the judge “activist” but this ignores the plain and inarguable fact that the Texas law, giving illegal aliens in-state tuition discounts, provides benefits to illegal aliens that is not provided to U.S. citizens. That is distinctly against federal law.
You may disagree with the policy, which is fine, but it is not an “activist” judicial ruling.
Those “undocumented immigrants” attended Texas public schools, and their parents probably also resided here. They pay sales tax, which is the tax the state has chosen to use. Whereas illegal out-of-state students and their parents don’t pay that state tax.
One thing about the MAGA cult is that they are very whiny people who whine about almost everything they perceive as unfair to them.
Meme is right. “One thing about the MAGA cult is that they are very whiny people who whine about almost everything they perceive as unfair to them.” Amen.
These Dreamers don’t qualify for in-state tuition discounts unless they graduate from a Texas high school and reside in Texas. “U.S. citizens” also qualify for in-state tuition in Texas if they are Texas residents.
This judge was very active falling all over himself in a lovesick rush to kiss Trump’s ass with this ruling so I think it is okay to call him an activist. Since the ruling appears to be outside of judicial norms, what is the term for such a ruling? Me, I think the term ‘horseshit ruling’ works fine, but … IANAL.