Students, immigrant-rights advocates and Austin Community College asked the 5th U.S. Circuit Court of Appeals on Thursday to let them defend the Texas Dream Act that has helped thousands of immigrant students lacking permanent legal status afford college.
The law allowed students who attended and graduated from high school in Texas to pay in-state tuition, even if they did not have legal immigration status. A federal judge blocked the law a year ago after the Trump administration sued the state, and Texas Attorney General Ken Paxton agreed not to defend it.
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 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 multiple failed efforts from state lawmakers to change the law, U.S. Justice Department lawyers sued Texas last year. 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 students and immigrant advocates say
Advocacy groups Students for Affordable Tuition and LUPE, Austin Community College and Silva argued they have the legal right to intervene. They urged the court to apply a more lenient standard for intervention instead of requiring proof that their defense of the Texas Dream Act would ultimately succeed.
Students for Affordable Tuition said 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.”
“The people of Texas are entitled to genuine litigation before a federal court invalidates their democratically enacted statute,” lawyers said in a legal brief to the 5th Circuit.
Thomas Saenz, the lead lawyer for Students for Affordable Tuition, also stressed that affected students did not get due process because of how quickly the Texas Dream Act was overturned.
It is “important to emphasize here how extraordinary that it all occurred as quickly as it did,” Saenz told the 5th Circuit on Thursday. “The court needs to look at whether this extraordinary situation violated due process rights held by students for affordable tuition and the other students who benefited or would benefit in the future.”
The groups believe 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.
What the federal government says
Justice Department lawyers sued Texas, saying the Texas Dream Act violated a 1996 federal immigration law. That federal law says states cannot give people who are not lawfully present a higher education benefit unless U.S. citizens can get the same benefit, no matter where they live.
U.S. Department of Justice attorneys now argue the The Texas Dream Act so clearly conflicted with federal immigration law that allowing others to intervene and defend it would be futile.
“We opposed intervention … only on the grounds that it’s legally futile because the statutes are preempted,” Andrew Marshall Bernie, an attorney with the U.S. Department of Justice, told the appeals court Thursday.
Responding to concerns over due process, Bernie argued courts are not constitutionally required to hear from outside groups when a state law is challenged for violating a federal statute. In the end, he said, the outside groups did get due process because their arguments have been heard by the trial court and the 5th Circuit.
The Texas Dream Act opened higher education to more than 57,000 students, lawyers for LUPE, ACC and Silva told the court. The law could cost Texas hundreds of millions of dollars a year through reduced wages, earnings and consumer spending. ACC said it expected lost revenue, administrative burdens and negative effects on programs and services if the ruling remains in place.
Since O’Connor blocked the Texas Dream Act last year, students and colleges across the state have 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 provide clarity on how to do so. 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.
Judges Jerry E. Smith, Don R. Willett and Irma Carrillo Ramirez will next deliver a ruling, which could come in the following weeks or months. Smith was appointed by President Ronald Reagan, Willett by President Donald Trump, and Ramirez by President Joe Biden.
If the court sides with the student and immigrant groups, the case could return to the district court, where advocates 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 story was originally published by The Texas Tribune and distributed through a partnership with The Associated Press.
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