The Department of Justice’s campaign against state policies that allow undocumented students to pay in-state tuition has seen mixed results so far. While several states quickly agreed with the government and scrapped their laws, a federal judge in Minnesota sided with the state and upheld its policy—a key win for advocates.
But a recent court order from a Nebraska judge quashing a similar state law signals that the legal battle over these policies is far from over and may even arrive at the U.S. Supreme Court down the line.
The dueling court orders offer clues as to what’s next—and what legal issues are at play—as the DOJ targets similar laws that extend in-state tuition benefits to eligible students, regardless of citizenship, in California, Illinois, Kentucky, Virginia and other states.
The federal government claims that these state policies, often called tuition-equity laws, run afoul of a federal statute that prohibits states from making noncitizens “eligible on the basis of residence” 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.”
Undocumented students’ advocates and legal experts argue these laws are permissible but differ from each other in important ways and come from different state contexts. Those differences could ultimately affect their fates, as exemplified by recent court orders.
Miriam Feldblum, president and CEO of the Presidents’ Alliance on Higher Education and Immigration, said, clearly, “the broader legal question remains unsettled.”
“Courts continue to disagree about how the federal law applies to state tuition-equity laws. We have what seem like diametrically opposed situations in Minnesota and Nebraska,” she said, “and yet the nuance of what’s in each of these cases is important.”
Defining Residency
One those nuances is how tuition-equity laws are written. Their eligibility criteria vary in ways that might make some laws more vulnerable to the DOJ’s attacks than others.
“Looking ahead, it’s clear that maybe that one of the most important issues may not be whether a state provides in-state tuition to undocumented students, but how the state defines eligibility,” Feldblum said. “What the Minnesota [and] Nebraska decisions exemplify or illustrate is that courts may reach very different conclusions based upon specific laws at issue.”
Minnesota’s law requires students spend three years at and graduate from a Minnesota high school, whereas Nebraska’s law outlines various ways a student can meet “residence requirements,” including living in the state for 180 days as an adult or emancipated minor with proof of intent to stay, residing in Nebraska for at least three years before graduating high school there or having a parent or guardian with custody living in the state.
Both judges’ orders hinge partly on whether these criteria count as conferring benefits to noncitizens “on the basis of residence” and whether citizens can equally benefit.
U.S. District Judge Katherine Menendez concluded that Minnesota’s law doesn’t require residency. She agreed with the state’s defense that some citizens from out of state gain access to in-state tuition under the law, too, such as students from neighboring states who attend Minnesota high schools. Menendez rejected the federal government’s claim that Minnesota’s criteria are still “tantamount to a residency requirement,” noting the state law’s approach is “distinct” from Texas’s law, ended last year, which “explicitly ties eligibility to residency.”
In contrast, U.S. District Judge Brian Buescher ruled Nebraska’s law is “plainly based on” residency, even if the law’s definition of resident is “not identical” to how federal statute defines it, “but its meaning is essentially the same.”
“The law is clear,” Buescher wrote. “The Nebraska statutes establishing residence requirements for illegal aliens to obtain in-state tuition, while leaving United States citizens from other states to pay full out-of-state tuition, blatantly violate the federal law.”
Hiroshi Motomura, faculty co-director of the Miñana Family Center for Immigration Law and Policy at the University of California, Los Angeles, School of Law, said he’s not convinced Nebraska’s case is so cut-and-dried.
For example, a nonresident who previously lived in Nebraska and graduated from a Nebraska high school, then moved away, could ostensibly benefit from the policy. He emphasized that other states, like Kansas, use terms like “residents for purpose of tuition and fees” in their laws, but with criteria that explicitly include nonresidents. (Kansas’s State Legislature recently voted to ax its tuition-equity law, but the governor vetoed the bill.)
State lawmakers who drafted these laws might’ve been wiser to avoid the term “residency,” as California did, Motomura said. California’s law, like Minnesota’s, hinges on high school attendance in the state and has been shown to benefit citizens who live out of state. The California Supreme Court upheld the law in the 2010 case Martinez v. Regents of the University of California as a result. Still, cases like Nebraska’s are “more complicated” than they initially appear, Motomura added, and he could imagine “judges going both ways” on such cases.
Thomas Saenz, president and general counsel at the Mexican American Legal Defense and Educational Fund, also known as MALDEF, argued that tuition-equity laws in some states, like Nebraska and Texas, don’t require residency; they include some eligibility options related to residency and some not. Yet “courts have not really grappled with” the legal concept of “severability” in these cases, whether they can strike parts of these laws that concern them rather than disbanding the laws altogether.
Laws Without Defense
But in Nebraska and Texas, those types of arguments never got their day in court, frustrating Saenz and other advocates for undocumented students.
In Texas, Oklahoma, Kentucky and Nebraska, states swiftly reached joint consent agreements with the DOJ to end their state laws. Judges signed off on those agreements without any back-and-forth in court. Multiple organizations and students have filed motions to intervene, seeking to become a party in these lawsuits to argue on behalf of laws left defenseless by their states. But those efforts have hit roadblocks.
In the Nebraska order, Buescher denied motions to intervene from two organizations: True Potential, a scholarship provider for participants in the Deferred Action for Childhood Arrivals, or DACA, program; and the Orel Alliance, which works with Ukrainian immigrants and refugees. The judge concluded neither had standing, though he considered and responded to points they raised in amicus briefs. Buescher also concluded the DOJ’s suit wasn’t an illegal “collusive” or “friendly” lawsuit—even though the state readily folded to it—because Nebraska enforced the law until the DOJ’s challenge.
MALDEF, meanwhile, has sought to intervene on behalf of undocumented students in Texas, Oklahoma and Kentucky and is seeking out students in Nebraska who may want similar representation. (Minnesota, California, Illinois and Virginia are defending their laws themselves.) But so far, only Kentucky has allowed MALDEF to intervene. The organization is appealing in the other states.
Saenz said getting students to come forward in court has been challenging at a time when they’re afraid to identify themselves as undocumented. “As someone who’s been representing immigrants for over three decades, this is the worst [fear] I’ve ever seen,” he said—and it’s even more pronounced in states with smaller undocumented populations, such as Nebraska and Oklahoma, making these tuition-equity laws harder to defend.
With some states declining to fight for their laws and intervenors blocked, judges have different levels of exposure to opposing arguments before they make decisions, Feldblum said, so it’s unsurprising courts are reaching disparate rulings.
In Minnesota, “the court asked for [and] received a full briefing” and “had adversarial arguments from both sides before it issued a very detailed opinion. It took in all the nuance,” she said. “In Nebraska, there was none of that … The court didn’t have the benefit of a fully adversarial presentation from parties who are going to defend the challenged statute—and I think that we can see the difference there.”
Legal experts believe it’s possible these disagreements at the district court level could propel one of these cases as far as the U.S. Supreme Court.
But Motomura speculated that, even if that did happen, a ruling against a particular state law is unlikely to kill tuition-equity laws nationwide, unless the Supreme Court managed to strike down one of the “strongest,” most carefully worded laws, like California’s.
Saenz similarly said he’s not “fearful of Supreme Court review,” because he believes the law is on his side.
“I am concerned that, in the meantime, lots of students in Texas and other states are being denied regular tuition,” paying sometimes triple the price, “when they have every right under state law to pay that regular tuition rate.”
This story was corrected to update the spelling of a source.
Source link
#Court #Orders #Differ #Legality #Tuition #Equity #Laws
