The Justice Department’s campaign against state policies that allow undocumented students to pay tuition has had mixed results so far. While several states quickly agreed with the government and overturned their laws, a federal judge in Minnesota sided with the state and upheld its policy—an important win for advocates.
But a recent court order from a Nebraska judge striking down a similar state law shows that the legal battle over these policies is far from over and may even reach the US Supreme Court down the line.
The court’s conflicting orders provide clues to what’s next—and what legal issues are at play—as the DOJ directs similar laws that extend tuition benefits to eligible students, regardless of race, in California, Illinois, Kentucky, Virginia and other states.
The federal government says these state policies, commonly known as tuition-equity laws, conflict with a federal statute that prohibits states from making noncitizens “eligible for residency” for “any postsecondary education benefit unless a citizen or state of the United States is eligible for that benefit (under the amount, duration or national resident.”
Advocates for undocumented students and legal experts argue that these laws are valid but differ from each other in important ways and arise from different state contexts. That difference could ultimately affect their fate, as shown by recent court orders.
Miriam Feldblum, president and CEO of the President’s Alliance on Higher Education and Immigration, said, clearly, “the broader legal question remains unresolved.”
“Courts continue to disagree about how federal law applies to state equity laws. We have cases that seem to be very conflicting in Minnesota and Nebraska,” he said, “and yet the difference in what’s in each of these cases is significant.”
Defining a Place of Residence
One of those nuances is how tuition-equity rules are written. Their eligibility criteria vary in ways that may make some laws more vulnerable to attack by the DOJ than others.
“Looking forward, it’s clear that perhaps one of the most important issues may not be whether the state provides in-state education to undocumented students, but how the state defines eligibility,” Feldblum said. “What in Minnesota [and] The Nebraska decisions exemplify or demonstrate that courts can reach very different conclusions based on the particular statutes at issue.”
Minnesota law requires students to spend three years and graduate from a Minnesota high school, while Nebraska law outlines various ways a student can meet the “residency requirements,” including living in the state for 180 days as an adult or emancipated minor with proof of intent to reside, living in Nebraska for at least three years prior to graduating from high school where he lives with a parent or has a custodial parent.
Both of the judges’ orders hinged in part on whether the provisions count as providing benefits to non-citizens on a “residency basis” and whether citizens would benefit equally.
US District Judge Katherine Menendez ruled that Minnesota law does not require residency. He agreed with the state’s defense that some out-of-state citizens have access to education under the law, such as students from neighboring states who attend Minnesota high schools. Mendez rejected the federal government’s claim that Minnesota’s criteria “remains the same as the residency requirement,” noting that the state law’s approach is “different” from the Texas law, which expired last year, that “clearly includes eligibility and residency.”
In contrast, US District Judge Brian Buescher ruled that Nebraska’s law is “clearly based” on residency, even if the statutory definition of resident is “not the same” as federal law, “but its definition is the same.”
“The law is clear,” Buescher wrote. “Nebraska’s laws establishing residency requirements for illegal immigrants to receive an in-state education, while leaving United States citizens from other states to pay in full outside the state, clearly violate federal law.”
Hiroshi Motomura, director of the Miñana Family Center for Immigration Law and Policy at the University of California, Los Angeles, School of Law, said he is not sure if the Nebraska case is so cut and dry.
For example, a non-citizen who previously lived in Nebraska and graduated from a Nebraska high school, then moved, could clearly benefit from the policy. He emphasized that some states, such as Kansas, use terms such as “residents for the purpose of tuition and fees” in their laws, but with terms that clearly include non-residents. (The Kansas State Legislature recently voted to repeal its tuition equity law, but the governor vetoed the bill.)
State lawmakers who write these laws may be wiser to avoid the word “residence,” as California did, Motomura said. California’s law, like Minnesota’s, requires that you attend an in-state high school and be shown to benefit out-of-state residents. The California Supreme Court upheld the law in the 2010 case of Martinez v. Regents of the University of California as a result. Still, cases like Nebraska’s are “more complicated” than they first appear, Motomura added, and he could imagine “judges going both ways” in such cases.
Thomas Saentz, president and general counsel at the Mexican American Legal Defense and Educational Fund, also known as MALDEF, said educational equity laws in some states, such as Nebraska and Texas, do not require residency; they include some eligibility options related to residency and others not. However, “courts have never dealt with” the legal concept of “decision” in these cases, whether they can affect the parts of these laws that affect them rather than overturning the laws in their entirety.
Rules Without Protection
But in Nebraska and Texas, those kinds of arguments have never gotten their day in court, frustrating Saentz and other advocates for undocumented students.
In Texas, Oklahoma, Kentucky and Nebraska, states quickly reached joint consent agreements with the DOJ to repeal their state laws. The judges signed those agreements without going back and forth in court. Many organizations and students have filed petitions to intervene, seeking to participate in these lawsuits in order to argue on behalf of laws that have been left defenseless by their states. But those efforts have hit roadblocks.
At Nebraska’s behest, Buescher rejected intervention proposals from two organizations: True Potential, a provider of scholarships for participants in the Deferred Action for Childhood Arrivals program, or DACA; and the Orel Alliance, which works with Ukrainian migrants and refugees. The judge concluded that neither had standing, although he considered and responded to the points they raised in the amicus briefs. Buescher also concluded that the DOJ case was not an illegal “participation” or “friendly” case—though the state quickly folded into it—because Nebraska enforced the law until the DOJ challenged it.
MALDEF, meanwhile, has sought to intervene on behalf of undocumented students in Texas, Oklahoma and Kentucky and is looking for students in Nebraska who may seek similar representation. (Minnesota, California, Illinois and Virginia are defending their own laws.) But so far, only Kentucky has allowed MALDEF to intervene. This organization is applying to other states.
Saentz said getting students to come to court has been a challenge at a time when they are afraid to identify themselves as undocumented. “As someone who has been representing immigrants for over thirty years, this is very bad [fear] I’ve seen it,” he said—and it’s especially prominent in states with small undocumented populations, like Nebraska and Oklahoma, which make these educational equity laws difficult to defend.
With some states refusing to fight for their own laws and intervenors being blocked, judges have varying degrees of exposure to dissenting arguments before they make decisions, Feldblum said, so it’s not surprising that courts reach different decisions.
In Minnesota, “the court asked [and] received full information” and “had opposing arguments on both sides before issuing a detailed opinion. It took away all the differences,” he said. “In Nebraska, there wasn’t that … The court didn’t have the benefit of a full cross-examination from the parties that would defend the challenged law—and I think we see the difference there.”
Legal experts believe it is possible that this disagreement at the district court level could push one of these cases all the way to the US Supreme Court.
But Motomura speculated that, even if that happened, a ruling against a state law would be unlikely to kill educational equity laws nationwide, unless the Supreme Court were able to strike down one of the “stronger,” more carefully worded laws, like California’s.
Saentz similarly said he is “not afraid of Supreme Court review,” because he believes the law is on his side.
“I am concerned that, right now, many students in Texas and other states are being denied regular tuition,” sometimes paying three times the amount, “when they have a right under state law to pay that regular tuition.”
