The Fifth Circuit Court of Appeals has denied an attempt by Austin Community College and other Parties that sought to intervene in a lawsuit that resulted in a consent judgment enjoining a Texas law that allowed certain illegal immigrants to receive in-state tuition at public colleges and universities.
Last June, the Department of Justice sued the State of Texas on the grounds that state laws that provided for in-state tuition rates for certain illegal aliens violated federal law. The State, represented by Attorney General Ken Paxton’s office, quickly entered into a consent judgment that conceded that portions of the Texas Education Code violated federal law.
“In direct and express conflict with federal law, Texas education law specifically allows an alien who is not lawfully present in the United States to qualify for in-state tuition based on residence within the state, while explicitly denying resident-based tuition rates to U.S. citizens that do not qualify as Texas residents,” read one section of the joint motion for entry of the consent judgment.
After United States District Judge Reed O’Connor granted the joint motion for entry of the consent judgment, several parties – represented by left-wing organizations including the Texas Civil Rights Project, the American Civil Liberties Union, and the Democracy Forward Foundation – sought to intervene in the lawsuit to defend the legality of in-state tuition for illegal immigrants.
In a 2-1 ruling, the Fifth Circuit upheld Judge O’Connor’s ruling to deny the motion to intervene. Judge Jerry Smith wrote for the majority, joined by Judge Don Willett. Judge Irma Carrillo Ramirez wrote a dissenting opinion.
“Put another way, if some U.S. citizens or nationals, regardless of residency, are ineligible
for reduced in-state tuition rates, then all illegal aliens must be ineligible to receive the same benefit based on residency. U.S. citizens or nationals must be treated no worse than illegal aliens,” wrote Judge Smith.
In her dissent, Judge Castillo highlighted the speed at which the lawsuit was settled and the consent judgment was approved by Judge O’Connor.
She wrote, “Within approximately six hours, the parties settled, and the district court granted their joint motion for entry of a ‘consent judgment.’ The consent judgment declared the Challenged Provisions unconstitutional ‘as applied to aliens who are not lawfully present in the United States’ and permanently enjoined their enforcement. The district court did not invite any substantive briefing—adversarial or otherwise—before entering the consent judgment.”
Texas leaders praised the Fifth Circuit’s ruling.
“Texas and the Trump DOJ just secured another major victory for the rule of law. The Fifth Circuit upheld the END of in-state tuition for illegal immigrants in Texas,” said Governor Greg Abbott.
State Senator Mayes Middleton, the Republican nominee for Texas Attorney General, tweeted, “Huge win putting citizens first and ending subsidized in-state college tuition for illegal immigrants!”
