Court Upholds Ban on In-State Tuition for Undocumented Texans

Undocumented Texas students will continue to be unable to qualify for in-state tuition rates at public institutions, after an appeals court on Thursday upheld an agreement between the Trump administration and the state’s attorney general to end the benefit.

In 2001, Texas became the first state to allow undocumented students to pay in-state tuition when then-governor Rick Perry, a Republican, signed the Texas Dream Act into law. It allowed these students to pay the lower rates if they met certain criteria, including graduating from a Texas high school, living in the state for at least three years prior and signing an affidavit promising to apply for permanent residency status.

Roughly a year ago, the U.S. Justice Department sued Texas to invalidate the law, pointing to a federal statute barring undocumented people from receiving higher ed benefits based on their residency that aren’t available to out-of-state U.S. citizens. Instead of defending the law, Ken Paxton, a U.S. Senate candidate and Texas’s Republican attorney general, sided with the Trump administration within hours, and Judge Reed O’Connor, a George W. Bush appointee on the U.S. District Court for the Northern District of Texas, granted a permanent injunction against the law.

Students for Affordable Tuition, La Unión del Pueblo Entero, the Austin Community College District and Oscar Silva, a University of North Texas student, filed motions to intervene in the case to defend the law when the attorney general wouldn’t. But O’Connor denied their interventions, saying the federal law banning the in-state tuition benefit was clear.

In a 2-to-1 opinion Thursday, the Fifth Circuit Court of Appeals upheld O’Connor’s ruling. “Intervention is futile because federal law preempts the Challenged Provisions,” wrote Judge Jerry E. Smith, a Reagan appointee. He was joined by Judge Don R. Willett, a Trump appointee. Judge Irma Carrillo Ramirez, a Biden appointee, dissented.