A group of college students asked a Fifth Circuit panel Thursday to overturn an agreement that blocked a state law allowing students without permanent immigration status to receive in-state tuition at Texas public colleges and universities.
The students, joined by advocates also hoping to intervene in the case, asked the three-judge panel to vacate a 2025 consent judgment between Texas Attorney General Ken Paxton and the Justice Department that blocked the Texas Dream Act.
The decades-old law allowed in-state tuition for individuals without legal immigration status who establish residency in Texas, making attending college significantly cheaper.
But the agreement between Paxton and the DOJ established the law is preempted by a federal law stating individuals without lawful immigration status can’t be eligible “for any postsecondary education benefit” based on their residency within a state unless a U.S. citizen would also be eligible for that benefit regardless of residency.
Thomas Saenz, representing Students for Affordable Tuition, argued the entry of the consent judgment on the same day the Justice Department filed its case challenging the Dream Act deprived the students of “notice and an opportunity to be heard” in violation of their due process rights.
U.S. District Judge Reed O’Connor, a George W. Bush appointee, had ruled intervention would be futile because the act is definitely preempted by federal law.
And Joshua Salzman — representing the civil rights group La Unión del Pueblo Entero, along with Austin Community College and an individual student — argued the lower court lacked jurisdiction to enter the consent judgment because there was no “case or controversy” between Paxton and the Justice Department.
Salzman told the panel Paxton had conspired with the DOJ to bring a case to overturn the Dream Act.
“Since the 1880s, the Supreme Court has warned against the possibility that a party defeated in the legislature might circumvent the democratic process and, through a friendly suit, seek the invalidation of a democratically enacted law, and I think that describes this case,” Salzman said.
But Texas Assistant Solicitor General Nathaniel Plemons argued there was indeed a case and controversy, saying it didn’t matter “what the attorney general thinks or feels about the case,” as unless the Texas legislature overturned the Dream Act or a court blocked it, the law was going to continue to be enforced in violation of federal statute.
The intervenors argue the federal law should not be interpreted as preempting the Dream Act. Salzman told the panel in-state tuition does not qualify as a post-secondary education benefit.
See here and here for the background. The intervenors are arguing that there was no actual dispute between the Trump Justice Department and the state of Texas, and so the court had no jurisdiction to make any ruling. They want to be allowed to intervene on behalf of the people who are affected by the lawsuit. If they win, the case will be remanded back to the district court. Which will probably rule against them anyway because that’s the kind of judge Reed O’Connor is, but one step at a time. Houston Public Media and the Trib have more.