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The battle over in-state college tuition for undocumented immigrants

A recent court decision benefited immigrants, but the battle will likely continue.

- December 6, 2023
(cc) University of Illinois Springfield

Several months ago, Florida governor and presidential candidate Ron DeSantis called for legislators to repeal a Florida law that allows children of undocumented immigrants to pay in-state college tuition rates. The legislature didn’t go along with it. But it seems unlikely that the idea of prohibiting undocumented students from paying in-state tuition will go away – especially given the push by Donald Trump and other candidates to focus attention on undocumented immigrants, who Trump recently accused of “poisoning the blood of our country.” 

But despite these continued attacks, a recent court decision gives undocumented students an important victory: allowing colleges and universities to charge them in-state tuition, exactly the opposite of what DeSantis wanted. Here is why, and what may come next.

What are the relevant federal laws?

Although the Supreme Court ruled in 1982 that all states must provide public education to students, irrespective of their immigration status, the decision only applies to elementary and secondary education. This leaves undecided whether immigrants might have rights to an education in public colleges and universities.

Two federal laws have had more direct consequences for higher education. One is the 1996 Personal Responsibility and Work Opportunity Reconciliation Act. It prohibits providing “state and local public benefits” to undocumented immigrants – unless the states pass legislation explicitly making undocumented immigrants eligible for those benefits. including in-state tuition assistance. 

The second law was the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. This act prohibited states from offering “postsecondary education benefits” to undocumented immigrants unless those benefits were offered to all U.S. citizens, regardless of their state residence. 

Both laws sought to limit access to higher education for individuals without legal presence – especially since few states would want to allow undocumented immigrants to pay in-state tuition if it meant giving the same benefit to out-of-state students, who typically pay higher tuition rates.

How did states respond to these laws?

The actual impact of these laws varied across states. Some modified their policies to provide benefits to undocumented students despite federal restrictions. Texas was the first state to do so. In 2001, then-Governor Rick Perry signed House Bill 1403 (aka the “Texas Dream Act”). The Texas law said that any student would be eligible for in-state tuition at a Texas public college or university if they attended a state secondary school for three years and graduated or obtained a GED in the state. 

As a result of this law, as of 2021, a little more than 22,000 of the 1.3 million students enrolled in Texas colleges and universities were using this benefit. At the University of North Texas, where I teach, only 300 of the 44,336 students in the 2022-23 school year were identified as not legally present and eligible for in-state tuition rates.

The Texas law became the template for subsequent bills in other states. As of 2023, 24 states and the District of Columbia have some “tuition equity” law and at least 15 states offer state financial aid to eligible students regardless of their immigration status. Four states allow public universities to offer private institutional aid and scholarships to eligible students regardless of their immigration status. Only three states, Alabama, Georgia, and South Carolina, explicitly prohibit the admission of undocumented immigrants to public colleges and universities. 

In 2020, the Texas Public Policy Foundation (TPPF), a conservative think tank, filed a lawsuit on behalf of out-of-state students affiliated with the University of North Texas chapter of the student organization Young Conservatives of Texas (YCT). They argued that UNT violated the Illegal Immigration Reform and Immigrant Responsibility Act because out-of-state students paid a higher tuition than in-state students who were undocumented immigrants and qualified for in-state tuition under the 2001 law. 

In 2022, Federal District Judge Sean Jordan, a Trump appointee, sided with the plaintiffs and imposed a permanent injunction on in-state tuition for undocumented students in Texas public universities. Over UNT’s objection that in-state tuition is not a direct financial payment that requires state funds, Judge Jordan concluded that in-state tuition should be considered a postsecondary education benefit and that UNT’s policy violated the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. UNT subsequently appealed the decision to the 5th Circuit Court of Appeals.

In a surprising outcome from a traditionally conservative court, the 5th Circuit unanimously vacated Judge Jordan’s decision and affirmed the ability of UNT and other universities to allow undocumented students to pay in-state tuition. Although the 5th Circuit concluded that out-of-state YCT students had standing to sue, it argued that the district court opinion misinterpreted the Illegal Immigration Reform and Immigrant Responsibility Act. 

In the words of the Appellate Court, the federal law “doesn’t impose any duty to grant the same benefits to U.S. citizens…. Its sole focus is on improper benefits for illegal aliens.” While the District Court ruled that the 1996 IIRAIRA imposes a duty on states to grant citizens the same benefits, the Appeals Court ruled that states are simply prohibited from providing benefits to undocumented people if U.S. citizens are not eligible. As a result, the Appeals Court reversed the District Court’s decision.

What comes next? 

There have been several attempts to invalidate tuition equity in Texas and beyond, while other states are considering incorporating some kind of tuition equity for a growing number of undocumented students. 

For several reasons, this may not be the end of the story. Because both the district and appellate courts agree that YCT has standing to sue, subsequent lawsuits could be filed by this group in Texas on different legal grounds. Indeed, the appeals court even said that “a different, unchallenged portion of Texas’ scheme seems to conflict with” federal law. This could embolden other groups to test systems like the one in Texas. 

Thus, we should expect future battles about undocumented immigrants’ access to higher education to play out at state universities and involve even more debate about federal law and state powers over education and tuition equity.