Seems clear to me that they should be allowed to intervene, but the same judge that allowed the settlement has to allow this as well.
A group of undocumented students on Wednesday asked a judge to let them intervene in a case that revoked their access to in-state tuition, the first step in their ultimate goal of overturning the ruling.
The filing comes a week after the U.S. Department of Justice sued Texas over its 24-year-old law that allowed undocumented Texans who had lived in the state for three years and graduated from a Texas high school to qualify for lower tuition rates at public universities. Texas quickly agreed with the Trump administration’s claim that the law was unconstitutional and asked a judge to find the law unenforceable.
The quick turnaround — the whole lawsuit was resolved in less than six hours — represents a “contrived legal challenge designed to prevent sufficient notice and robust consideration,” lawyers for these students argued in their motion.
They’re asking U.S. District Judge Reed O’Connor to allow them to join the lawsuit and argue for why the statute should remain in effect. The Justice Department and the Texas attorney general’s office oppose the motion on the grounds that the matter has been resolved and the case is terminated, court documents say.
[…]
The people who are most impacted by a lawsuit typically have a right to have their voices heard on a case, said David Coale, a Dallas appellate attorney. Getting O’Connor to agree to reopen might be a tough sell, he said, but if they’re denied, they could appeal that ruling and the rest of the case alongside it, to the 5th U.S. Circuit Court of Appeals.
“The 5th Circuit’s obviously a very conservative court, but part of that conservatism is a pretty limited view of the judicial role,” Coale said. “So if they get a chance to argue their case there … they may have some luck.”
See here for the background, and be sure to read the excerpt from law professor Steve Vladeck, who outlines clearly why the collusion in this case was so suspect. That doesn’t mean the students, who are represented by MALDEF, will prevail, but it’s a good starting point.
COLLUSIVE LITIGATION FOR ME, NOT FOR THEE
I agree that this case has the badges of collusive llitigation.
The problem with the lefty professoriate is that they invoke high jurisprudential principle selectively based on their own ideological commitments, i.e. biases.
They were perfectly comfortable with noted feticide practitioner Alan Baid’s recruitment of two pro-choice ex-lawyers for a collusive invalidation of SB8.
Hurrah! We have our test case!
Not only that, the two leaders of a newfangled cottage industry of law review articles on how to defeated SB8 – Howard Wasserman in Florida and Rocky Rhodes at STCL in Houston – expressly advocated the strategy of “arranged litigation.”
So, now both sides are now doing it and it seems to be working.
Incidentally, the Texas Supreme Court very recently came out very strongly against deciding cases that don’t present a true controversy.
Empty in-dicta judicial rhetoric?
One wonders