Federal judge rules UNT can’t charge out-of-state students more tuition than undocumented students

A federal judge has blocked the University of North Texas from charging out-of-state American students higher tuition than some undocumented Texas students who are allowed to pay the lower, in-state tuition rate under a 2001 law after he ruled the state statute violates the U.S. Constitution. (Ben Torres For The Texas Tribune, Ben Torres For The Texas Tribune)

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A federal judge has ruled that the University of North Texas can’t charge out-of-state American students higher tuition than undocumented Texans who qualify for lower in-state tuition under a 2001 Texas law.

UNT lawyers appealed last week’s decision by U.S. District Judge Sean Jordan, a Trump appointee, over the weekend. If upheld, the decision could impact other Texas public universities, which depend financially on charging higher out-of-state student tuition.

The ruling centers on Texas’ 2001 law allowing undocumented students who have lived in Texas for three years and graduate from a Texas high school to pay in-state tuition.

This recent challenge by the Texas Public Policy Foundation, on behalf of the student organization the Young Conservatives of Texas, could provide a new path forward for some Texas lawmakers who have wanted to eliminate the in-state tuition benefit for undocumented students since at least 2015.

In 2021, a little more than 22,000 students were enrolled in Texas colleges and universities using this benefit.

Two years ago, the right-leaning TPPF filed the lawsuit, pointing out that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 states that an individual “who does not legally reside in the United States should not be eligible for a postsecondary education benefit granted on the basis of where someone lives unless United States citizens qualify for the same benefit.” Therefore, they argued, out-of-state students shouldn't have to pay more than undocumented Texas students.

Jordan, the federal judge, agreed.

“​​Because Texas’s non-resident tuition scheme directly conflicts with Congress’s express prohibition on providing eligibility for postsecondary education benefits, it is preempted and therefore unconstitutional,” Jordan wrote.

Other university systems in the state said they are still reviewing this ruling.

But Thomas A. Saenz, president of the Mexican American Legal Defense and Educational Fund, criticized the judge’s ruling.

“It’s hard not to see it as a Trump judge overreaching to try to change longstanding law in the state of Texas,” said Saenz, who is also MALDEF’s general counsel. He found the ruling surprising given the amount of time the state law has been in place.

“It’s obviously a political lawsuit, and granting that political lawsuit is what’s disturbing,” he said.

TPPF lawyer Rob Henneke said he’s excited the ruling will make Texas colleges and universities more affordable for out-of-state students.

“For the thousands of college students in Texas who’ve been burdened by these higher out-of-state tuition rates, they get immediate relief from having to pay so much to be educated,” he said.

According to New American Economy, a bipartisan research group, out-of-state tuition rates are on average three times higher than in-state rates.

At UNT, the average cost of tuition and fees for an in-state student is just under $12,000, while an out-of-state student pays closer to $24,000 on average.

Students at the University of Texas at Austin who are Texas residents pay between $11,000 and $14,000 on average for tuition, while a nonresident student pays between $38,600 and $47,000 in tuition.

Saenz, with MALDEF, said Texas lawmakers could change the law to eliminate the three-year residency requirement and provide in-state tuition to any Texas resident who graduated from a Texas high school, similar to California’s law. But he admitted that “in the current political context, that seems less likely.”

Gov. Greg Abbott, Lt. Gov. Dan Patrick and Conroe Republican Brandon Creighton, chair of the Texas Senate Higher Education Committee, did not immediately respond to requests for comment.

Michael Olivas, a professor emeritus at the University of Houston Law Center who helped write the 2001 law, slammed the judge’s decision.

He said the judge did not take into account the other exceptions that allow out-of-state students to receive the lower, in-state tuition rate, including the waiver that allows students in bordering states to receive in-state tuition at some institutions.

“These students are trying to make a political point for an issue that was a non-issue and then obfuscated it,” he said.

Olivas also said TPPF lawyers did not adequately demonstrate how out-of-state students are harmed by the law, given that any U.S. citizen can qualify for in-state tuition if after living in Texas for a year before enrolling in college, while an undocumented student must live in Texas for three years before qualifying for in-state tuition.

Olivas expects advocacy and legal immigration groups to get involved in the appeal of the UNT ruling.

On Wednesday, the Mexican American Legislative Caucus said in a statement that it would be unfair to require undocumented Texans to pay higher tuition costs than out-of-state students who are granted in-state tuition after living in the state for one year.

“Texas Dreamers are Texans,” state Rep. Rafael Anchía, a Dallas Democrat and chair of the caucus, said in the statement. “This political decision ignores the facts, plain and simple. These students are required to satisfy higher standards, three times that of their peers. And now, out-of-state students with no connection to Texas will be given preferential treatment that will result in less opportunities for students who graduate from our neighborhood schools.”

Meanwhile, lawyers for UNT also argued that barring it from charging out-of-state students a higher rate will force the university to incur millions in lost revenue, an argument the judge rejected.

“Budgetary constraints do not absolve constitutional violations,” he wrote.

Timia Cobb contributed to this story.

Disclosure: The Texas Public Policy Foundation, the University of Texas at Austin, the University of Houston and the University of North Texas have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribunes journalism. Find a complete list of them here.

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Correction, April 13, 2022: A previous version of this story incorrectly stated that the cost to attend UNT was $26,500 for an in-state tuition, while an out-of-state student paid $38,800. At UNT, the average cost of tuition and fees for an in-state student is just under $12,000, while an out-of-state student pays closer to $24,000 on average. In a previous version of this story, the name of Michael A. Olivas, professor emeritus at UH Law Center, was misspelled. It is Olivas not Olivias.