Recently the 5th Circuit Court of Appeals upheld a consent decree between the United States and Texas that struck down state laws that extended in-state tuition rates to illegal aliens who reside in Texas, while forcing American citizens from out of state much higher out-of-state tuition rates.
The Court held that federal law preempts the challenged provisions of state law because it bars states from conferring postsecondary education benefits on any illegal alien based on residence unless the same benefit is available to all U.S. citizens and nationals irrespective of residency.
Ira Mehlman is media director for the Federation for American Immigration Reform, which filed a brief encouraging this decision.
“Texas was actually the first state to offer in-state tuition to illegal aliens. They were the ones who found the loophole in the 1996 law that says if you offer in-state tuition to an illegal alien, you must offer those same benefits to any U.S. citizen regardless of where they happen to live in the country. Texas made in-state tuition contingent on having graduated high school in Texas rather than based on immigration status."
According to the 5th Circuit, intervention would have been “futile because federal law preempts” the challenged provisions of Texas law.
But Mehlman says over the years the views in Texas have clearly evolved.
"Right now, Texas has been the leader in establishing policies that discourage illegal immigration in cooperation with federal efforts to enforce immigration laws. So, it's been a radical change in how Texas views this. And Texas basically said to the Department of Justice, we agree to abide by the decision to end the in-state tuition policy, which is good."
Mehlman says other states are following suit.
