(CN) – A group of college students asked a Fifth Circuit panel Thursday to void an agreement between the Texas attorney general and the Department of Justice that blocked a state law that allowed students without permanent immigration status to receive in-state tuition at Texas public colleges and universities.
The students, along with lawyers also hoping to intervene in the case, asked the three-judge panel to release a 2025 consent judgment between Texas Attorney General Ken Paxton and the Department of Justice that blocked the Texas Dream Act.
The decades-old law allowed in-state tuition for individuals without legal immigration status who take up residence in Texas, making college attendance significantly more affordable.
But the agreement between Paxton and DD established that individuals without legal immigration status may not be eligible “for any postsecondary education benefit” based on their residence within a state, unless a US citizen would be eligible for that benefit regardless of residency.
Thomas Saenz, representing Students for Affordable Tuition, argued that entering the consent decree on the same day the Justice Department filed its case challenging the Dream Act deprived students of “notice and an opportunity to be heard” in violation of their due process rights.
And Joshua Salzman — representing a coalition made up of La Unión del Pueblo Entero, a civil rights group known as LUPE, Austin Community College and an individual student — argued that a lower court lacked jurisdiction to prevent them from intervening because there was no “case or controversy” between Paxton and the Justice Department.
US District Judge Reed O’Connor, appointed by George W. Bush, had ruled interference would be futile because the act is definitely preempted by federal law.
Salzman told the panel that Paxton had conspired with the DOJ to file a case to overturn the Dream Act.
“Since the 1880s, the Supreme Court has warned against the possibility that a defeated party in the legislature could bypass the democratic process and, through a friendly suit, seek to invalidate a democratically enacted law, and I think that describes this case,” Salzman said.
But Texas Assistant Solicitor General Nathaniel Plemons argued there was indeed a case and controversy, saying it didn’t matter “what the attorney general thinks or feels about the matter,” since unless the Texas legislature overturned the Dream Act or a court blocked it, the law would continue to apply in violation of federal statute.
Intervenors argue that the federal law should not be interpreted as preempting the Dream Act. Salzman told the panel that in-state tuition does not qualify as a postsecondary education benefit.
“There is no money or benefit flowing in the opposite direction to the student,” Salzman said. “It’s a status, and it’s a status that’s the default status in Texas because the Texas education system exists primarily and primarily to serve the people who will contribute to the Texas economy in the future.”
Justice Department attorney Andrew Bernie argued that federal law clearly applies to in-state tuition and that a conference report from when the law was passed shows that was Congress’ intent. To hold otherwise, he argued, would “deprive the statute of application where Congress clearly intended it to apply.”
Intervenors also argue that, if federal law does indeed preempt the Texas Dream Act, applying it in this case would violate the 10th Amendment to the U.S. Constitution by interfering with a state’s ability to set its own eligibility requirements for in-state tuition.
U.S. District Judge Irma Carrillo Ramirez was skeptical of the arguments in favor of preemption. The Joe Biden nominee asked Bernie and Plemons about the differences between the definition of residency in state and federal laws and also seemed to agree with the intervenors’ arguments about the 10th Amendment.
When Bernie argued that the federal law is “an alien regulation” that falls within the constitutional authority of the federal government, Ramirez asked, “How is that not a regulation for the states if they are not allowed to give in-state tuition to whomever they want?”
“Because the way the statute works, the only thing the statute does, as opposed to issuing any kind of order (to states), is it just preempts inconsistent state laws,” Bernie said.
“Like SB 4?” asked Ramirez, referring to a separate legal battle over a Texas law that allows state authorities to enforce immigration law.
Ramirez joined in one dissent April decision allowing that law to take effect after Trump’s Justice Department rejected a challenge to the Biden-era law. The dissent in that case argued that SB 4 is likely to be preempted by federal law.
U.S. District Judge Jerry Smith, a Ronald Reagan appointee, and U.S. District Judge Don Willett, a Donald Trump appointee, joined Ramirez on the panel. The judges took the case under submission and did not indicate when they will rule.
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