Court Was Right to End Texas Dream Act, Block In-State Tuition for Illegal Aliens, Policy Experts Say

Last week, the U.S. Court of Appeals for the 5th Circuit ruled that federal law prevents Texas from granting in-state college tuition to illegal aliens living 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 Texas over the law. The state agreed that the act conflicted with federal immigration law, and a federal judge permanently blocked the statute from being enforced. 

Shortly after the act was blocked, Students for Affordable Tuition, La Unión 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, Judge 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 5th 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.

Mandy Drogin, a senior fellow for the Government Reform and Oversight Coalition at the Texas Public Policy Foundation, told the Daily Signal that the law is “morally bankrupt” because it incentivized “law breakers” and “bad behavior.”

“First and foremost, [it’s so] if we’re telling parents that they should take this treacherous journey, or send their kids on a treacherous journey, to be abused, to be raped, to be tortured, as we know occurs in the journey up into the U.S., particularly Texas. But also, [with] the incentives in the education system, where we’re effectively saying, ‘If you come here illegally, if you break the laws of our land, we’re going to allow it,'” Drogin said. 

She added that Texans charge out-of-state tuition because Texas taxpayers help fund higher education institutions.

“[Because] the parents and the grandparents and the patriots of Texas fund our institutions, we have a system where we charge out-of-state tuition for students that reside in the other 49 states,” Drogin said. “So, why in the world would taxpayers be forced to subsidize students that are from other countries when we all recognize that we should not be subsidizing students from other states?”

Robert Henneke, executive director and general counsel for the Texas Public Policy Foundation, also told the Daily Signal that the Texas Dream Act had previously been challenged by the foundation and the Young Conservatives of Texas, which sued the University of North Texas in 2022 over the law’s constitutionality.

The two groups lost their challenge after the 5th Circuit ruled that the Texas law did not conflict with federal law, but the litigation laid the groundwork for future challenges.

Henneke said the Texas law had always been unlawful.

“The reason that the Texas law policy was unlawful is because it gave an educational benefit to illegal immigrants. That same benefit was not given to all American citizens. And that’s what violated the federal law,” he said.

Hennecke said the 5th Circuit’s recent ruling will benefit Texans by bringing additional revenue to Texas institutions of higher education.

“This will generate more revenue for Texas institutions of higher education because they’ll be able to charge more in tuition to noncitizens, non-legal residents, or potentially it frees up more spots in our state universities for Texans and Americans.”