Last week, the U.S. Court of Appeals for the Fifth Circuit ruled that federal law prevents Texas from granting in-state college tuition to illegal aliens residing in the state.
In 2001, the Texas Legislature passed the Texas Dream Act, allowing illegal aliens who graduated from a Texas high school, lived in the United States for more than three years, and signed an affidavit stating they would seek permanent residence to qualify for in-state tuition at Texas public universities.
Twenty-four years later, the U.S. Department of Justice sued the State of Texas over the law. The state agreed that the Texas Dream Act conflicted with federal immigration law, and a federal judge permanently blocked the statue from being enforced after both parties agreed.
Shortly after the Texas Dream Act was permanently blocked, Students for Affordable Tuition, La Union del Pueblo Entero, Austin Community College, and Oscar Silva sought to intervene to defend the statute, arguing they should be allowed to defend the longstanding law after state officials declined to do so.
The appeals court held that two provisions in the Texas Education Code allowing certain illegal aliens to establish Texas residency violated 8 U.S.C. § 1623(a), a federal law enacted by Congress in 1996 that prohibits illegal aliens from receiving postsecondary education benefits based on state residency.
Writing for the majority, Judges Jerry E. Smith, with Judge Don Willett joining, said Section 1623 “does not limit its preemptive effect to state-law residency determinations based on a single factor.”
“Appellants present little to no authority that ‘on the basis of’ should warrant anything other than a but-for standard. The but-for test is satisfied here—continuous residency is one of the two requirements to establish residency under section 54.052(a)(3) and is a but-for cause of the provision of postsecondary education benefits and ‘the basis of’ their provision within § 1623(a)’s meaning,” the judges continued.
Judge Irma Carrillo Ramirez dissented, arguing that the district court failed to determine whether the case presented a genuine legal dispute before entering judgment.
“Six hours after the United States sued the State of Texas, the district court entered a consent judgment invalidating the 25-year-old Texas Dream Act based on the parties’ agreement that the law is preempted by 8 U.S.C. § 1623(a). It then denied Appellants’ attempts to intervene to defend the Texas law,” Ramirez wrote. “Because its existence is unclear, I would remand for the district court to evaluate its jurisdiction under Article III in the first instance. Even if jurisdiction exists, because the district court’s evaluation of Appellants’ motions to intervene was incomplete, and § 1623(a) is not a valid preemption statute under the Tenth Amendment, I respectfully dissent.”
The Fifth Circuit’s ruling reaffirmed the lower court’s injunction against the Texas Dream Act, leaving in place the prohibition on illegal aliens receiving in-state tuition at Texas public universities.
