Fifth Circuit Upholds End of In-State Tuition for Illegal Aliens in Texas
Under federal law, “U.S. citizens or nationals must be treated no worse than illegal aliens.”
The Fifth Circuit Court of Appeals has upheld the end of in-state tuition benefits for illegal aliens in Texas.
Governor Abbott announced the win on X:
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. https://t.co/AW35SAzrRO
— Greg Abbott (@GregAbbott_TX) July 9, 2026
The court’s 2-1 decision leaves standing an agreement reached last year between the Trump DOJ and the state of Texas to end the unlawful taxpayer-funded benefits, which are denied to U.S. citizens in other states.
The ruling also ends over a year of litigation initiated by would-be intervenors seeking to undo that agreement.
Like other states, Texas charges its own residents a much lower rate to attend its public colleges than those who live out of state.
For over twenty years, Texas laws required state colleges and universities to offer those reduced in-state tuition rates to aliens, whether they were here legally or not—a benefit denied to citizens from other states.
But that’s discrimination against our own citizenry, and it’s illegal. In June of last year, the U.S. Department of Justice sued to block the state from enforcing the laws, as we covered from the beginning here.
That lawsuit seemed to be over before it started, however, when, just hours later, the DOJ and the State entered into a consent judgment agreeing to end the benefits. Their filing was promptly approved by the district judge.
But then, shortly thereafter, two advocacy groups, a community college, and a student sought to intervene in the case, throwing a monkey wrench into what looked like a done deal.
The lower court denied their request last August, explaining that “intervention is legally futile,” because the laws’ provisions are expressly preempted by federal law.
The groups appealed, arguing the district court had prejudged the merits without a hearing or adversarial briefing.
Yesterday, a majority of the Fifth Circuit disagreed, rejecting the would-be intervenors’ arguments as meritless. Its decision upholds the parties’ agreement to end the unlawful benefits and affirms the lower court ruling.
The court reiterated that federal law 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. As the court summed it up, “U.S. citizens or nationals must be treated no worse than illegal aliens.”
For years, illegal immigrants came to this country knowing that in over 20 states, all kinds of benefits, including scholarships and loan subsidies, in addition to in-state tuition rates, lay in store—for them, but not for U.S. citizens.
Last year, the Trump DOJ began its broad-scale campaign to end the preferential tuition benefits—benefits that basically amount to incentives for illegal immigration. Texas was the first of now 12 states so far to be sued.
This is not the first time outside parties have tried to derail a consent judgment entered with the DOJ to end the unlawful benefits. Last month, as I wrote here, the federal district court in Nebraska rejected just such an attempt and approved the decree—for similar reasons, finding the state’s provisions “blatantly violate” federal law.
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Comments
Erase ALL incentives for illegals.
Incentives, benefits, freebies, ID’s, job permits, housing, everything. They deserve NOTHING.
PRESIDENT Trump’s offer to leave with a $1000 and a deadline is the best offer they should ever get. Anything less, seize all their property and repatriate them with prejudice.
If the Demsocialists want to pay for their schooling, then they should pull the money out of their tiny DNC election funds. And by extension, they should shut their communist pie holes.
What about DACA students?
The average DACA recipient is 32, so I am not sure that’s a big issue.
Time to enforce/end the “DEFERRED” portion of DACA.
Trump could end DACA with the stroke of a pen!
That is incorrect. No state has been treating illegal aliens better than their own citizens in this matter. Why would any state want to?
What the law prohibits is states treating students who are illegally residents of their own state better than they do students who are citizens of other states. That is something that it’s reasonable for a state to want to do, and many states have chosen to do it, but they can’t because Congress banned it. Until just recently they’ve all been ignoring that law and no one was bothering to enforce it; that’s now changed.
Thanks – caption fixed.
I understand people might not like Milhouse’s analysis, but he is factually correct. I guess I’m the lone up-vote so far on this one…
Correct – almost always correct on the legal analysis. I work indirectly with a lot of constitutional attorneys, so while I often disagree with the political position of the law, Milhouse legal analysis is almost always spot on.
First – The author needs to provide link to actual opinion.
Second – opinion is correct
Third – as expected, the dissent is from a biden appointee – ie Ramirez
This is not true. Those benefits were only available to them if they moved to one of those states; and they were equally available to any US citizen who did the same. No state treated illegal aliens better than similarly situated US citizens.
The problem is that the law requires states to treat US citizens better than illegal aliens. If a state chooses to offer its own illegal residents a college rate, it must also offer that same rate to all US citizens no matter where they live. Texas must offer a US citizen permanently resident in New Zealand the same rate as an illegal resident of Dallas. It’s reasonable for a state to protest, if it likes, that this law is unfair, or unreasonable, or bad policy; but it doesn’t matter, it’s the law and the states are required to obey it. If they don’t like it they can lobby Congress to change it.
I’m surprised the ruling was 2-1. I would have expected 3-0.
Ramirez is a biden appointee. Its never going to be unannomis with a Biden or Obama appointee
I just skimmed the dissent, and there is something to it. Ramirez says the district court should have heard arguments and not simply decided that the plaintiffs had no possible case. She says they had two plausible arguments: 1) that the district court had no jurisdiction and therefore could not accept the consent decree; and 2) that the federal law in question violates the 10th amendment, and is thus void.
There’s a general principle that the 10th amendment forbids Congress from directly regulating the states, or from telling state legislatures what laws they may or may not pass. Congress can only regulate individuals, not states, and this law seems not to put any burden on any individual, but merely to prohibit the state from making a law setting a lower rate for illegal residents than for US citizen non-residents. So Ramirez says the district court should have considered that argument and not dismissed it out of hand.
Why is this even a question?? They are illegal. Deport them. Problem solved!
It’s not up to the state to deport them. It can’t even if it wants to. But it is up to the state how much to charge them for attending a state college. And the law requires that that rate be no lower than what is charged to US citizens regardless of where in the world they live.
Too bad California is not affected…
If the state didn’t have their collective head up their collective asses they could notify ICE and ICE could deport them. Problem solved.
BTW: I shouldn’t have to explain this,
Yes, they could indeed notify ICE. Nothing prevents them. But it’s then up to ICE whether to do anything about it. In the meantime the student is eligible to attend college, and it’s up to the state to decide how much to charge.
And it does affect California just as much as Texas. The difference is merely that Texas immediately consented to the federal lawsuit against it, while if California received such a lawsuit it would fight it in court. Once the principle is established for TX it will be applied to CA too.
How about a ruling that illegal aliens are illegal?
That depends upon what the meaning of illegal is.
I’m sure you could get Judge Ronald McDonald to rule that.
“This is not the first time outside parties have tried to derail a consent judgment entered with the DOJ to end the unlawful benefits”
Sue-and-settle is (D)ifferent when they do it… but (R)epugnant when we do it.
Thankfully there’s much more narrowing of benefit eligibility coming for illegal aliens. Some already kicked in, some kick in this fall and some in Jan ’27. Basically other than ER stabilization, care for childbirth and K-12 the eligibility of illegal aliens for almost every other Federally funded program is being eliminated or the eligibility for Federal subsidies eliminated. SCOTUS has told us that the children born here to illegal alien Parents are Citizens so they remain eligible for programs. However reporting requirements from recipients of Federal program $ may also begin to play a role in ID, locating, detaining and deporting the illegal alien Parents.
As these cuts/eligibility restrictions and reporting requirements kick in more illegal aliens will voluntarily depart as the gravy train begins running off the tracks. While folks granted lawful status as refugee or asylum remain eligible the entry gate for those claims is narrowing as well; TPS for Haitians running out (finally) as one example.
Does a Washington resident and student of Oregon State University have a course of action to request back tuition for the cost between in-state and out-of-state tuition?
For a long time now Oregon has provided in-state tuition for illegal aliens, but charged full price for out-of-state students. This has been a notorious and persistent behavior, prominently ignoring the controlling Federal law. At what point does the clear conspiracy to ignore the law, and failure to collect the right tuition amount, become an actionable cause for Oregon residents?
Does the state have to consider this a potential cost? For every 1000 students with a per-year overcharge of $5K, that is a $2M (plus interest?) to be refunded to former students. Combine OSU, UO, OHSU and community colleges across at least a decade, that could be $100M. Can I get a slice of that?
No, and this is one of the points the dissent made. The law doesn’t require offering the low rate to citizens from out of state; instead it forbids offering the rate to illegals from in-state unless it also offers it to citizens from out of state. Offering it to out-of-state citizens is a condition on being able to offer it to in-state illegals, but it’s phrased as a prohibition rather than a requirement.
So no, an out-of-state citizen would not have a claim for a refund. He can’t say “you should have charged me the lower rate”; all he can say is “you should have charged him the same as you charged me”, and he has no standing to say that, because it doesn’t affect the rate he was charged.
I’m a little late to this discussion, but isn’t there a class action opportunity here? Would out of state students charged a higher rate than illegal alien students have standing to sue these universities?
No. See my answer just above.