On June 4, a federal judge in Amarillo, Texas, issued an injunction against the State of Texas charging in-state tuition for undocumented students at Texas public colleges. Previously, Texas adopted a law allowing undocumented students to pay the lower in-state tuition. However, the U.S. Department of Justice filed a lawsuit challenging the constitutionality of that law, and Texas Attorney General Ken Paxton joined that challenge.
The legal challenge is based upon the Constitution assigning immigration policy to the federal government. The result of this injunction is to eliminate the Texas law without having the Texas legislature vote to repeal it. Then-Governor Rick Perry signed the Texas Dream Act into law in 2001, and the law has survived several efforts to repeal it in subsequent years.
The injunction applies only to Texas, but has national implications. First, the lawsuit was based upon a February 19 Trump Executive Order generally prohibiting undocumented immigrants from receiving taxpayer-funded benefits. Second, New York and more than 20 other states have similar laws that could be subject to challenge under that executive order. Under New York law, undocumented students are not only entitled to in-state tuition but are also eligible to receive state-funded Tuition Assistance Program (TAP) grants that cover attendance at either public or private colleges.
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The IIRIRA, 8 U.S.C. § 1623, provides:
“Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.”
The Department of Justice argued that any state law or administrative decision contrary to the IIRIRA is preempted by the federal law.
In theory, the Department of Justice could use the Executive Order, the IIRIRA, and the new Texas precedent to challenge provisions in other states.
Kentucky Lawsuit
On June 18, the Department of Justice filed a lawsuit in the Federal District Court for Eastern Kentucky challenging Kentucky regulations that provide in-state tuition for undocumented students in public universities. The Trump Administration claims that this discounted tuition is preempted by the IIRIRA and the Supremacy Clause of the Constitution.
Minnesota Lawsuit
On June 25, the Department of Justice filed a third lawsuit in the Federal District Court for Minnesota, which was very similar to the Texas and Kentucky lawsuits. The case was filed against Governor Tim Walz, Attorney General Keith Ellison, and the Minnesota Department of Higher Education. Like Texas or Kentucky, Minnesota offers a lower in-state tuition for students who have studied and lived in Minnesota for the past three years. Unlike those states, Minnesota has a second program to provide free tuition scholarships for in-state students who can’t otherwise afford to attend college. The Trump Administration claims both Minnesota laws violate IIRIRA and the Supremacy Clause. More such cases addressing public university tuition are expected to follow in other states.
In a press release, Attorney General Pam Bondi said, “No state can be allowed to treat Americans like second-class citizens in their own country by offering financial benefits to illegal aliens, The Department of Justice just won on this exact issue in Texas, and we look forward to taking this fight to Minnesota in order to protect the rights of American citizens first.”
Cornell Impact
New York is unusual because Cornell, the state’s land grant college, claims to be a private rather than a public university. However, TAP, which helps New York high school graduates to attend colleges in-state, applies to both public and private schools. So, any Justice Department campaign to attack state laws allowing immigrant students in-state benefits would more likely attack TAP than Cornell’s overall financial aid policies.
Cornell’s current financial aid policy is to evaluate the financial need of undocumented DACA students using the same formula as any other student. Although students who are U.S. citizens are eligible to receive federal financial aid, undocumented students are not. So, those students are not required to fill out the Free Application for Federal Student Aid (FAFSA) form. Non-DACA undocumented students’ and international students’ financial need is considered in their admission decisions. However, once admitted, DACA students and long-term undocumented students receive full financial aid.
This aid is funded by Cornell as a private institution and does not represent taxpayer funding. Similarly, a DACA student’s self-help aid formula component would be the same regardless of whether the student was paying in-state or full tuition.
Cornell also funds other support programs for DACA and international students.
New York State Has a Large Number of Immigrant and International Students
Cornell does not release their undocumented or DACA populations, but there is public statewide data for immigrant and international students.
In 2020, Cornell had 5,146 international students, of whom 1,433 were undergraduates.
New York State-wide, there were 31,452 undocumented students in higher education. Of these, 6,661 were DACA-eligible. An estimated 7,000 undocumented students graduate from high school in the state each year.
In conclusion, given the number of undocumented students graduating from high school each year, higher education must address the tension between federal policy that disfavors continued presence in the United States and the educational needs of those students. That question is now being addressed in terms of federal law preempting state laws.
