Students, immigrant-rights advocates and Austin Community College are asking the 5th U.S. Circuit Court of Appeals on Thursday to let them defend the Texas Dream Act that has helped thousands of undocumented students afford college.
The law allowed certain students who attended and graduated from high school in Texas to pay in-state tuition, even if they lacked legal immigration status. The measure was blocked exactly one year ago after the Trump administration sued the state, and Texas Attorney General Ken Paxton agreed not to defend the law.
Now, Students for Affordable Tuition, La Unión del Pueblo Entero, Austin Community College and student Oscar Silva want a chance to defend the law themselves. Paxton’s office and Justice Department lawyers say the case shouldn’t be reopened because the Texas law conflicts with federal immigration law.
The background
Texas was the first state to let certain undocumented students pay in-state tuition after lawmakers passed the Texas Dream Act in 2001 with little debate and broad, bipartisan support.
The law, signed by the Republican former Gov. Rick Perry, allowed certain students without legal status to qualify if they graduated from a Texas high school or earned an equivalent diploma here, lived in the state for at least three years before graduating and signed an affidavit saying they would seek permanent residency as soon as they were eligible.
Supporters said Texas benefited from students educated in its K-12 schools by making college more affordable and moving them into the workforce. But as Republican politics shifted on immigration, the law became a target.
After another failed effort by some state lawmakers last year, U.S. Justice Department lawyers sued Texas. Paxton’s office quickly agreed the law conflicted with federal immigration law and asked a judge to block it. U.S. District Judge Reed O’Connor approved the agreement and blocked the law the same day.
Students for Affordable Tuition is a group of students who say they were harmed by the ruling. La Unión del Pueblo Entero, or LUPE, is an immigrant-rights group. They asked to intervene along with Austin Community College and Silva, a University of North Texas graduate student who qualified for in-state tuition under the Texas Dream Act.
O’Connor, a President George W. Bush appointee who sits in the Northern District of Texas’ Wichita Falls division, rejected their request, so they appealed to the 5th Circuit.
What the fight is about
Justice Department lawyers sued Texas, saying the Texas Dream Act violated a 1996 federal immigration law.
That law says states cannot give people who are not lawfully present a higher education benefit based on residency unless U.S. citizens can get the same benefit, no matter where they live. Justice Department lawyers argue Texas gave some undocumented students a lower tuition rate that U.S. citizens from other states could not get.
Paxton’s office agreed. The Texas Dream Act so clearly conflicted with federal immigration law that defending it or letting others defend it would be futile, state lawyers said. In their brief, they argued private parties “cannot hijack the State’s defense of its statutes.”
Students for Affordable Tuition, LUPE, ACC and Silva argue that O’Connor got ahead of himself. They say he should have first decided whether they met the legal requirements to intervene, not whether their defense of the Texas Dream Act would ultimately succeed.
“The people of Texas are entitled to genuine litigation before a federal court invalidates their democratically enacted statute,” lawyers for LUPE, ACC and Silva wrote in their brief.
The groups argue the Texas Dream Act did not conflict with federal law because eligibility was not based solely on residency.
Students also had to graduate from a Texas high school or earn an equivalent diploma here, live in the state for at least three years before graduating and sign an affidavit saying they would seek permanent residency as soon as they were eligible.
Students for Affordable Tuition say the stakes are concrete for its members, who “face significant increases in their higher education costs, putting college out of reach for many of them, some of whom have already spent years in college and will not be able to complete their specific program.”
Broader impact
The Texas Dream Act opened higher education to more than 57,000 students, lawyers for LUPE, ACC and Silva told the court. They argued that ending the law could cost Texas hundreds of millions of dollars a year through reduced wages, earnings and consumer spending, and said ACC expected revenue losses, administrative burdens and negative effects on programs and services if the ruling remained in place.
Since O’Connor blocked the Texas Dream Act last year, students and colleges across the state faced confusion over who still qualifies for in-state tuition.
The Texas Higher Education Coordinating Board told colleges to identify and reclassify students who are not lawfully present as nonresidents but did not tell schools how to determine lawful presence or what documents to accept. That uncertainty led at least one student with Deferred Action for Childhood Arrivals, or DACA, to be initially charged out-of-state tuition, The Texas Tribune previously reported.
Students for Affordable Tuition told the 5th Circuit that several Texas colleges had charged DACA recipients out-of-state rates, even though Texas lawyers said they should still qualify for in-state tuition.
What happens next
Judges Jerry E. Smith, Don R. Willett and Irma Carrillo Ramirez will hear the case.
Smith was appointed by President Ronald Reagan; Willett by President Donald Trump; and Ramirez by President Joe Biden.
The 5th Circuit does not have to rule Wednesday. A decision could come weeks or months later.
If the court sides with the groups, the case could return to the district court, where they would have a chance to defend the law.
If the court sides with Paxton’s office and Justice Department lawyers, the judgment blocking the law would remain in place.
This article first appeared on The Texas Tribune.
Sign Up for SA Current newsletters.
Follow us: Apple News | Google News | NewsBreak | Reddit | Instagram | Facebook | Twitter | Or sign up for our RSS Feed
