Legal Advocate Decries “Coordinated Assault” on Noncitizens

When Thomas A. Saenz first began working on the issue of tuition equity in 1993 at the Mexican American Legal Defense and Educational Fund, “whether undocumented students could pay [in-state] tuition or not was more or less an open question.”

But over the course of the next decade, after federal law was decided and, with the help of groups like MALDEF, states began passing laws that permitted undocumented students to qualify for in-state tuition based on certain factors, the situation for these students became more clear. 

Saenz, now the president and general counsel of MALDEF, said, “From a legal perspective, this was settled.” In 2024, 24 states and Washington, D.C., allowed undocumented students who met certain criteria, such as having gone to high school in the state, to pay the in-state rate.

But, after the Trump administration’s Justice Department filed 25 lawsuits in the last 16 months, in-state tuition for undocumented students has been rolled back in at least six states and remains uncertain in many others. 

The DOJ argues that these state policies violate a 1996 law that bars noncitizens from qualifying for higher education benefits, such as in-state tuition, on the basis of residence unless “a citizen or national of the United States is eligible for such a benefit.” Offering in-state tuition to undocumented students incentivizes illegal immigration and disadvantages U.S. citizen students, the administration claims. 

Saenz and many other immigrants’ advocates disagree. They argue that the policies are legally sound because they allow undocumented students to qualify for in-state tuition based on many factors, sometimes not even including residency, and they often include factors that permit U.S. citizen students from other states to also qualify for in-state tuition. 

Advocates say it’s only fair to allow undocumented students—the vast majority of whom were brought to the United States as young children—to pay the same tuition rates as the citizen students they grew up alongside at the colleges they mutually earned admission to. These students often go on to graduate, gain work authorization and make great contributions to their communities, they say. 

And it’s not a violation of federal law. Of that, Saenz, who has been working on the issue since before the federal law or any of the state policies came into existence, is sure. 

Saenz spoke with Inside Higher Ed about his experience working on the nation’s first tuition-equity policies, what in-state tuition means for undocumented students and how the administration’s campaign could end. This interview has been edited for clarity and length.

Q: Since these policies first began, what has in-state tuition meant for undocumented students and communities more broadly?

A: It’s made higher education affordable for a lot of people who otherwise would have had to go to a private college and hopefully receive private financial aid, or who would have otherwise not really been able to pursue higher education. 

What it has meant for the community is that these graduates—who are graduates because they were able to afford their education—most of them are highly contributing to the economy and society. That’s because many of the students who were undocumented when they came into college now have work authorization either because they’ve adjusted [their status] or because they have authorization through something like deferred action. In either case, they’ve been able to make a very significant contribution to the economy but also to public safety—many of these graduates are in health care or in other front-line occupations. 

Q: How did in-state tuition for undocumented students become an issue for state and federal policymakers? 

A: In California there were court decisions going in both directions, one that said undocumented students couldn’t receive regular tuition and the other saying they could. Those cases were keyed up by anti-immigrant folks, basically. So that’s what I think partially raised the issue. And then Proposition 187, which included a higher education provision. [Editor’s Note: In 1994, California voters approved Proposition 187, which prohibited undocumented immigrants from benefiting from many public services. A federal judge ruled the measure unconstitutional in 1998.]

I think that’s what put it on the radar of the folks who spearheaded the enactment of the federal restrictions first in the Welfare Reform Act and then subsequently in what is known as Section 1623.

Prior to that, it was very informal. Some schools would allow undocumented students to pay in-state tuition, others might not. But then the federal government stepped in in 1996.

Q: When you started working on this issue and the first policy was being developed in Texas, was there concern about violating the 1996 federal law?

A: From my personal experience, yes. They were absolutely aware. Not only do I know it from my involvement, but I also would note that there is a presumption under federal law and under state law that legislators know the current law when they act. So you actually have to make an assumption when you analyze these kinds of things that the legislators were aware of 1623, and they certainly were. 

Both California and Texas took steps to avoid having their policies struck down by 1623. In California, residence is not a criterion at all to receive regular tuition. In Texas, residence is one criteria of several. In neither case is it the only criterion, which is what 1623 would strike down. 

No other administration since 2001, when Texas and California enacted their laws, no Department of Justice under an administration of either party, including the first Trump administration, has ever filed a lawsuit challenging these laws. I think that’s also an indicator that everyone understood that because they didn’t rely solely on residence, all of these state laws were compliant with Section 1623.

Q: So, why are they doing it now? 

A: Well, I can’t tell you that. Obviously this Trump administration, even in comparison with the first Trump administration, is much more virulently anti-immigrant, and they pursue anti-immigrant policies in every way that they can. This is a particular pernicious step because all of these students are future contributors to the economy and society of their states. They’re much-needed educated members of the workforce. 

Q: At a recent press briefing, you mentioned that these lawsuits are just as much part of the administration’s anti-immigration agenda as the Immigration and Customs Enforcement raids and arrests. What do you mean by that?

A: Well, certainly the street enforcement has garnered lots of headlines, as it should because of the extreme brutality, the racial profiling, the deaths. This campaign in court doesn’t get as much headline-grabbing attention because they’re keeping it under wraps.

They are, I believe, seeking to avoid any kind of backlash to this litigation campaign by not publicizing it as a campaign. If you were going to go out and sue nearly half the states in the country, that’s generally something that you would be touting much more and talking about more. They’re not doing that.

Q: Not all of the states are defending the laws, but we’ve seen MALDEF and other groups try to get involved in the suits on behalf of students by filing motions to intervene. I know not all of these petitions have been successful, but can you explain why you took that approach? 

A: The federal rules of civil procedure provide for intervention of parties who have an interest that could be impaired by litigation if they are not adequately represented by the others in the case. So you can intervene as a plaintiff or you can intervene as a defendant. In these cases, we have sought to intervene as a defendant, because in many of these cases the states are not putting up any defense. 

This would be the quintessential situation where the intervention should be allowed. The state is not defending a law in which our clients have a very strong interest because it’s what makes higher education affordable for them. Ordinarily these would be easy motions, but we have not been allowed to intervene except in Kentucky. In Texas, the court denied intervention on the basis of futility. In Oklahoma, the district court never ruled. And in Kansas, the court approved the consent decree and therefore denied our motion to intervene, in essence asserting that it was unnecessary to grant intervention because the court was at the same time approving the consent decree. 

So, other than in Kentucky, there has been a failure to apply the correct law to allow students, who are those most directly affected by the attempted elimination of tuition equity, to intervene—which is what should be allowed.

Q: You’ve mentioned that MALDEF and others could petition the Supreme Court to review the decision in the Texas case. What would that look like?

A: Technically, because the Fifth Circuit panel has continued to deny our intervention, our clients aren’t parties to the case. If we had been granted intervention, our clients would be parties to the case. But they’re not, and when you’re not a party, you don’t really have the ability in federal court to challenge a decision. 

What they decided and what would go to the Supreme Court is whether intervention should have been granted. Now, if intervention is granted, then we could come back and ask to challenge the merits of the consent decree. But right now that’s not something we can technically do. 

There is a way in which they overlap, because the Fifth Circuit decision was based on futility. That means the Fifth Circuit decided our arguments on the merits were not good at all, and therefore it would be futile to allow us to intervene. There’s a way the current status does lead to some potential analysis of the merits issue, but technically the first issue—and the only issue at this time—is whether intervention should have been granted. 

Q: You’ve referred to the 25 lawsuits as a coordinated assault on the rights of undocumented students. Did this coordinated assault surprise you?

A: Well, they followed Texas pretty quickly with Oklahoma, so they indicated pretty early on that they would be filing more lawsuits. But was I surprised in the first instance? Absolutely. As I said, no administration has ever filed a lawsuit challenging these laws. Clearly, they have a different view of the law than their predecessors. That was surprising.

Initially, we might have thought they would leave out the California model [in which residence is not a criterion], but they filed in California fairly quickly as well. That’s because they have this really unsupported theory that attending high school in the state is the same as residence, when it plainly is not in practice. But that’s their claim.

In my mind, that clearly identified it as a coordinated assault.

Q: We saw advocates condemn the lawsuits, but we didn’t see as much forceful language about the administration’s campaign. Was there a specific reason why you waited? Do you think the legal advocacy community was prepared for this fight?

A: Honestly, I think we expected the media to write about this as a coordinated assault, but when it became clear that the media, by and large, is generally treating these as one-offs, we concluded that we need to be more forceful in pointing out the pattern that clearly indicates a coordinated assault on these students and these laws. 

Prior to Texas, I don’t think this was top of mind as a prospect of the overall anti-immigrant policies of this administration. There were so many other things going on, and I don’t necessarily think that anybody anticipated this. Again, it is so unique in the history of these laws.

Q: Besides dealing with these lawsuits, what’s next on advocates’ lists in the fight for college access for undocumented students? 

A: I think that there are still political battles even if we prevail. For example, in Oklahoma, we were already on appeal when the Oklahoma Legislature and governor repealed the law. There’s nothing we can do about that. So, our lawsuit in the 10th Circuit in Oklahoma is only for that period of time when students were paying higher out-of-state tuition because of the consent decree. But once the [repeal] legislation took effect, there is nothing we can do.

So there is still an ongoing need to reinforce political support.