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Court: Texas universities can charge out-of-state students higher tuition than illegal immigrants
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‘We’re disappointed for our clients who now, as the Court recognized, have to pay 9 times more in-tuition than illegal aliens’

In Texas, illegal immigrants who live in the state are eligible to receive in-state tuition prices, paying significantly less than out-of-state students who are legal American citizens.

The Fifth U.S. Circuit Court of Appeals recently sided with University of North Texas officials, ruling that a 2001 Texas state law allows colleges and universities to charge out-of-state students a higher tuition rate than undocumented immigrants.

However, the court’s decision directly contradicts the Illegal Immigration Reform and Responsibility Act of 1996, a federal statute that the Justice Department has failed to enforce.

The Clinton-era law mandates that states must offer out-of-state U.S. citizens the same tuition rate given to in-state students if that state grants illegal immigrants in-state tuition.

The Young Conservatives of Texas, a student group at the University of North Texas, initially filed the lawsuit in 2020, arguing it is unjust that out-of-state students are required to pay more than undocumented Texas students.

The Texas Public Policy Foundation, the conservative nonprofit research institute that filed the lawsuit on behalf of YCT, is not pleased with the court’s ruling.

“We’re disappointed for our clients who now, as the Court recognized, have to pay 9 times more in-tuition than illegal aliens,” Christian Townsend, an attorney with the foundation, told The College Fix in an email.

The Texas Dream Act allows all Texans, citizens or not, to pay in-state tuition rates if they have lived in the state for at least three years and graduated from a Texas high school.

According to the Higher Ed Immigration Portal, there are currently 59,021 illegal aliens in the Lone Star state’s higher education system, most of whom likely meet Texas’ in-state residency requirements.

This week’s decision reversed a previous ruling from April 2022, when a District Court ruled in favor of the Young Conservatives of Texas.

In that decision, the district court stated that “[I]f a State makes an unlawfully present alien eligible for a postsecondary education benefit on the basis of state residency, it must make a United States citizen eligible for the same benefit regardless of whether the citizen is such a resident.”

But the appeals court’s 15-page ruling, issued July 10, argued the district court erred.

“YCT contends that [the Illegal Immigration Reform and Responsibility Act of 1996] requires that universities either make illegal aliens eligible for in-state tuition, or they can charge U.S. citizens out-of-state tuition. They cannot do both. …. That is not correct,” the district court ruled.

“ …That act, among other things, restricts states’ authority to grant certain postsecondary education benefits to illegal aliens unless other conditions are met. … Meanwhile, Texas charges students who satisfy certain residency requirements lower tuition than it charges to nonresident students. … So long as they satisfy the statute’s residency requirements, illegal aliens are eligible for Texas resident tuition. Out-of-state, nonresident American citizens are not.”

Currently, Texas resident tuition is $50 per semester credit hour and nonresident tuition is $458 per semester credit hour, the ruling states.

The appeals court’s ruling left the door open to further litigation, stating there “may be valid preemption challenges to Texas’ scheme here. But this is not one of them.”

With this latest development, the Texas Public Policy Foundation told The College Fix they are reviewing the court’s decision and contemplating further action.

Since 2022, at least 23 states offer in-state tuition rates to illegal aliens who meet residency requirements, according to the National Immigration Law Center.

Those states are Arizona, California, Colorado, Connecticut, Florida, Hawaii, Illinois, Kansas, Kentucky, Maryland, Minnesota, Nebraska, Nevada, New Jersey, New Mexico, New York, Oklahoma, Oregon, Rhode Island, Texas, Utah, Virginia and Washington as well as the District of Columbia.

Hans von Spakovsky, a legal fellow at the Heritage Foundation and a former Department of Justice attorney, previously told The College Fix the impact the statue would have if the government actually enforced the Illegal Immigration Reform and Responsibility Act of 1996.

“If the DOJ actually enforced the law those states would lose, they’d be forced to either stop providing in-state tuition to illegal immigrants or get rid of increased tuition for U.S. citizens,” he said.

The problem is that while the statute has been on the books for many years, and a number of states have violated it, the DOJ has never acted to enforce the law, von Spakovsky said.

MORE: This law would save students tuition money, but the DOJ refuses to enforce it

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About the Author
Blake Mauro -- Clemson University