The legal and ethical basis for the DOJ’s challenge is disputed. The DOJ claims that federal law prohibits states from granting post-secondary education benefits based on residence to undocumented immigrants unless the same benefits are available to all U.S. citizens regardless of their residence (8 U.S.C. § 1623). Advocates for in-state tuition for undocumented immigrants argue that these state laws are consistent with federal law pointing out that out-of-state U.S. citizens, who meet the same residency requirements as undocumented students, are also eligible for the in-state tuition rate. Some critics of these lawsuits have accused the recanting states and the federal government of colluding to end their state laws.

This issue has created a crisis of legal and ethical conflicts within higher education, and it is a major topic of discussion and concern among peers in my field of work, government-funded student financial assistance programs. Here in Texas, a court ruling by a federal judge declared the state law unenforceable, but that court ruling does not repeal the law nor remove it from statute. It just keeps the state from acting on the law or enforcing it. This informational Padlet will explore the legal arguments and ethics implicated on both sides of the issue and will evaluate the likelihood of these federal court rulings being overturned in the future.

(8 U.S.C. § 1623)

3 Tex. Educ. Code § 56.033(c). (2005, September 1). Texas public educational grants. https://statutes.capitol.texas.gov/Docs/ED/htm/ED.56.htm

8 U.S.C. § 1623. (1996, September 30). Limitation on eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education benefits. https://uscode.house.gov/view.xhtml?req=(title:8%20section:1623%20edition:prelim)

19 Tex. Admin. Code § 21.24. (2008, May 21). Determination of resident status. https://shorturl.at/zhbNE

National Association of Student Financial Aid Administrators. (2017, November). Statement of ethical principles. https://www.nasfaa.org/statement_of_ethical_principles

Tex. Const. art. I, § 1. (1876, February 15). Freedom and sovereignty of state. https://tlc.texas.gov/docs/legref/TxConst.pdf

U.S. Const. art. VI, cl. 2. (1787, September 17). Supremacy clause. https://www.archives.gov/founding-docs/constitution-transcript#6

United States of America v. Andrew Beshear. (2025, September 23). U.S. District Court, Eastern District of Kentucky. https://www.justice.gov/opa/media/1403911/dl?inline

United States of America v. State of Oklahoma. (2025, August 7). U.S. District Court, Eastern District of Oklahoma. https://shorturl.at/ORaoy

United States of America v. State of Texas. (2025, June 4). U.S. District Court, Northern District of Texas. https://shorturl.at/QIXOu

Passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1623, that says states cannot give preferential treatment, like in-state tuition, to undocumented immigrants based on where they live. 

U.S. Department of Homeland Security (DHS)

Develops federal regulations to carry out immigration-related laws created by the U.S. Congress. There is no DHS regulation to go along with this federal law because the law is largely self-executing and limits the authority of states directly.

U.S. Department of Justice (DOJ)

Enforces laws passed by the U.S. Congress through the federal courts.

Texas Legislature

Passed the Texas Dream Act of 2001, 3 Tex. Edu. Code §§ 54.051(m), 54.052(a), that provided in-state tuition and financial aid at Texas public colleges to certain undocumented students who graduated from a Texas high school and had lived in the state for at least three years.

Texas Higher Education Coordinating Board (THECB)

Developed state rule 19 Tex. Admin. Code § 21.24, Determination of Residency Status, to carry out the law passed by the Texas Legislature.

Texas Attorney General

Enforces and defends laws passed by the Texas Legislature.

(3 Tex. Edu. Code §§ 54.051(m), 54.052(a))

(8 U.S.C. § 1623)

(19 Tex. Admin. Code § 21.24)

The DOJ claims that each state’s law that grants in-state residency to undocumented students violates the Supremacy Clause of the U.S. Constitution. The Supremacy Clause, (U.S. Const. art. VI, cl. 2), establishes federal laws as being supreme to any conflicting state laws.

Link: https://www.archives.gov/founding-docs/constitution-transcript

Texas Constitution

Article I, Section 1 of the Bill of Rights of the Texas Constitution (Tex. Const. art. I, § 1) states that Texas is "subject only to the Constitution of the United States." If a conflict arises between a Texas law and a federal law, that is within the national government's constitutional authority, the federal law will prevail. 

Link: https://tlc.texas.gov/docs/legref/TxConst.pdf

(Tex. Const. art. I, § 1)

(U.S. Const. art. VI, cl. 2)

The U.S. Congress passed this federal law that says states cannot give preferential treatment, like in-state tuition, to undocumented immigrants based on where they live. 

Link: https://uscode.house.gov/view.xhtml?req=(title:8%20section:1623%20edition:prelim)

U.S. Department of Homeland Security (DHS)

Develops federal regulations to carry out immigration-related laws created by the U.S. Congress. There is no DHS regulation to go along with this federal law because the law is largely self-executing and limits the authority of states directly. The law is enforced through legal challenges brought by the U.S. Department of Justice (DOJ) in the federal court system.

Link: NA

Texas Dream Act of 2001 (3 Tex. Edu. Code §§ 54.051(m), 54.052(a))

The Texas Legislature passed this state law that provided in-state tuition and financial aid at Texas public colleges to certain undocumented students who graduated from a Texas high school and had lived in the state for at least three years.

Link: https://statutes.capitol.texas.gov/Docs/ED/htm/ED.54.htm#54.051

Determination of Resident Status (19 Tex. Admin. Code § 21.24)

The Texas Higher Education Coordinating Board (THECB)

developed this state rule to carry out the law passed by the Texas Legislature. It largely just mirrors the law and establishes certain procedures for Texas colleges to follow to administer the law.

Link: https://shorturl.at/zhbNE

(3 Tex. Edu. Code §§ 54.051(m), 54.052(a))

(8 U.S.C. § 1623)

(19 Tex. Admin. Code § 21.24)

A U.S. District Court ruled that the 2001 Texas law granting undocumented persons in-state tuition is unconstitutional because it violates the Supremacy Clause by contradicting the federal law. It ruled the State's law as unenforceable, and it prevents persons, who are not lawfully present in the U.S., from receiving in-state tuition in Texas.

Link: https://shorturl.at/QIXOu

United States of America v. State of Oklahoma, 2025

Just as in the Texas court ruling, a U.S. District Court ruled that the 2004 Oklahoma law granting undocumented persons in-state tuition is unconstitutional on the same basis and stopped undocumented immigrants from receiving in-state tuition in Oklahoma.

Link: https://shorturl.at/ORaoy

United States of America v. Andrew Beshear-Governor of Kentucky, 2025

Just as in the Texas court ruling, a U.S. District Court ruled that the 2015 Kentucky law granting undocumented persons in-state tuition is unconstitutional on the same basis and stopped undocumented immigrants from receiving in-state tuition in Kentucky.

Link: https://www.justice.gov/opa/media/1403911/dl?inline

The following court cases are being challenged by the defending states and are undecided:

United States of America v. Tim Walz-Governor of Minnesota, 2025

United States of America v. State of Illinois, 2025

(United States of America v. State of Texas, 2025)

(United States of America v. State of Oklahoma, 2025)

(United States of America v. Andrew Beshear-Governor of Kentucky, 2025)

• Austin Community College's website incorrectly states that undocumented students still qualify for in-state tuition.

  Link: https://admissions.austincc.edu/residency-information/residency-status-undocumented-students/

  
  

• Blinn College's website, until September 2025, incorrectly stated that DACA students could not be classified as Texas residents.

  Link: https://www.blinn.edu/admissions/residency-information.html

  
  

• Laredo College has removed all information about state residency for both undocumented and lawfully present immigrants from its website, and it issued an announcement in August 2025 that DACA students cannot be classified as Texas residents at Laredo College.

(3 Tex. Educ. Code § 56.033(c))

Advocate for students 

• Remain aware of issues affecting students and continually advocate for their interests at the institutional, state and federal levels.

• Support federal, state and institutional efforts to encourage students, as early as the elementary grades, to aspire to and plan for education beyond high school. 

Support student access and success 

• Commit to removing financial barriers for those who want to pursue postsecondary learning and support each student admitted to our institution.

Link: https://www.nasfaa.org/statement_of_ethical_principles

(National Association of Student Financial Aid Administrators, 2017)

• Embracing transparency and clarity

  • I want to be on the receiving-end of clarity of information and transparency of professional practices, and I also want to be on the giving-end of of these values.

• Respecting all individuals

  • Our shared humanity makes us all worthy of respect, and I value being someone who honors the humanity of others.

• Refraining from conflicts of interest

  • I value abiding by my commitments and always acting in a manner that merits the trust and confidence others have placed in me.