Texas Can’t Force Out-of-State Citizens to Pay Higher College Tuition Than Illegal Immigrants: Judge

A judge's gavel in a file photo. AlexStar/iStock

A Texas law that in effect compels citizens of the United States to pay a higher college tuition rate than illegal immigrants is unlawful, a district judge ruled last week.

Under current Texas law established in 2001, a student who lives in Texas for three years and graduates from a Texas high school is entitled to in-state tuition rates. Anyone who fails to meet those residency criteria must pay higher out-of-state tuition rates, regardless of whether that person is a U.S. citizen.

In some situations, this tuition scheme makes U.S. citizens from states other than Texas pay higher tuition than students who continue to live in the state illegally, according to Young Conservatives of Texas, a student group advocating against in-state tuition rates and financial aid for illegal immigrants.

Meanwhile, a federal law from 1996, known as the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), specifically bans residency-based college tuition benefits that don’t take a student’s citizenship into account. One section of the statute reads:

“[A]n alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”

Arguing that these state and federal statutes conflict with one another, the Young Conservatives in 2020 sued the University of North Texas (UNT) on behalf of a group of its members, each of whom is a U.S. citizen from a state other than Texas and is, or was, a student at the university.

In the complaint, the Young Conservatives asked the court to preempt the Texas law under the Supremacy Clause of the U.S. Constitution. For a remedy, the youth group sought a permanent injunction that would prohibit the UNT from applying the tuition rates set forth in the challenged tuition scheme.

In response, the UNT argued that the Young Conservatives do not have standing to sue and that the university is not a proper defendant in this suit. It also contended that the court should not read IIRIRA to preempt the Texas education law.

U.S. District Judge Sean Jordan found none of these arguments persuasive. In his 40-page opinion (pdf) issued April 8, the Trump appointee ruled that the Young Conservatives had a sound standing to assert its claims, since its members did pay non-resident tuition for their most recent semester at UNT and anticipated paying non-resident tuition for future semesters.

“This economic harm is a sufficiently concrete and particularized injury for purposes of establishing standing,” Jordan wrote.

The judge also found that UNT administrators named in the lawsuit not only had a particular duty to enforce the challenged law, but also “demonstrated willingness” to do so at their university, noting that one of the Young Conservatives members was dropped from her classes in 2022 because she could not afford out-of-state tuition.

In other words, the administrators acted as “the boots on the ground at UNT ensuring compliance with [Texas law]’s mandate by applying its prohibitions,” according to Jordan.

When it comes to the heart of the dispute, Jordan said the intent expressed in IIRIRA is so unambiguous that it undoubtedly invalidates the current Texas law, even though Congress didn’t explicitly label that particular section as a preemption provision.

“Giving this language a plain and commonsense meaning, the statute sets forth a simple rule: If 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,” he explained.

“Congress is not required to employ a particular linguistic formulation when preempting state law. Nor has the Supreme Court ever required any particular magic words in express preemption cases,” Jordan added. “The Court concludes that the [Texas education law] is expressly preempted by [IIRIRA].”

The UNT previously claimed in court filings that an unfavorable ruling could cost the university millions of dollars in lost revenue each semester. For now, the decision declaring higher out-of-state tuition rates unlawful only pertains to the UNT.

The Texas Public Policy Foundation, a legal group representing the Young Conservatives in the case, applauded the decision, saying that colleges and universities across Texas should begin to plan for the ruling to apply to them soon.

“Universities in Texas simply cannot willingly violate federal law to benefit noncitizens in Texas at the expense of U.S. citizens,” said Robert Henneke, general counsel and executive director at the Foundation. “Now that a federal judge has rightly declared the out-of-state tuition statute unconstitutional, no Texas state university should continue to charge out-of-state students a higher tuition rate, starting with the upcoming summer semester.”