Fifth Circuit upholds Texas instate tuition ban for illegal foreign national students

By Bethany Blankley
The Center Square

Nearly one year after a lower court ruled that Texas universities providing in-state tuition to illegal foreign nationals was illegal, the Fifth Circuit Court of Appeals upheld the decision.

On Thursday, a panel of three judges ruled 2-1 affirming the lower court’s decision and dismissed all other claims.

At issue is a 2001 law enacted under former Republican Gov. Rick Perry, which allowed students who were in the country illegally to receive in-state tuition rates at public colleges and universities in Texas. In 2022, at least 57,000 illegal foreign national students were enrolled in public higher education institutions receiving lower instate tuition rates, according to an analysis by the Presidents’ Alliance.

For more than a decade, hundreds of thousands of students – all in the country illegally – received lower tuition rates than American citizens applying to public higher education institutions in Texas.

Under Gov. Greg Abbott and Republican majority legislatures, the law was never repealed.

Last year, the Trump administration sued Texas arguing higher education institutions providing in-state tuition to noncitizens while not providing it to all citizens regardless if they lived in Texas or not was illegal.

“In direct and express conflict with federal law, Texas education law specifically allows an alien who is not lawfully present in the United States to qualify for in-state tuition based on residence within the state, while explicitly denying resident-based tuition rates to U.S. citizens that do not qualify as Texas residents,” the administration argued.

It also argued that some provisions of the Texas Education Code were “expressly preempted by federal immigration law,” 8 USC Section 1623, which states, “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit . . . without regard to whether the citizen or national is such a resident.”

Within hours of the lawsuit being filed, a federal judge agreed with the administration. U.S. District Judge Reed O’Connor from the Northern District of Texas Wichita Falls Division granted the federal government’s motion and declared sections of the state law in question illegal, The Center Square reported.

He also ruled that Texas Education Code sections 54.051 (m) and 54.052(a), “as applied to aliens who are not lawfully present in the United States, violate the Supremacy Clause and are unconstitutional and invalid.”

He also permanently enjoined the state, including state colleges and universities, from enforcing state law “as applied to aliens who are not lawfully present in the United States.”

Texas then settled with the administration and entered into a consent judgment, which O’Connor approved.

Last October, the Texas Higher Education Coordinating Board adopted new rules to comply with the court ruling, which applies to public, private and independent higher education institutions in Texas. It states that eligibility for in-state tuition only applies to students who are “lawfully present in the United States, in addition to meeting the other requirements,” The Center Square reported. The ban applies to Deferred Action for Childhood Arrivals (DACA) students.

Two advocacy groups, a community college, and a student sought to intervene, attempting to nullify the consent judgment. The district court denied their intervention, arguing the state law was preempted by federal law. They then appealed to the Fifth Circuit and lost.

“The district court correctly denied intervention after concluding that they could not plausibly defend the preemption claim,” the Fifth Circuit ruled. “Section 1623(a) preempts what we call the Challenged Provisions1 vis-à-vis illegal aliens, barring states from conferring postsecondary education benefits on any illegal alien based on residence unless the same benefit is available to all U.S. citizens and nationals irrespective of residency. We AFFIRM the denial of the motions to intervene and dismiss the remaining claims for want of appellate jurisdiction.”

Judge Jerry Smith, writing for the majority, also clarified that “all of appellants’ preemption contentions are meritless” and dismissed “the remaining claims for want of appellate jurisdiction.” He also wrote that “appellants are nonparties and cannot appeal the consent judgment.”

In response to the ruling, Abbott said, “Texas and the Trump DOJ just secured another major victory for the rule of law. The Fifth Circuit upheld the END of in-state tuition for illegal immigrants in Texas.”

The 2001 Texas law is still on the books and the state legislature could still repeal it.