Full Breakdown
Fifth Circuit Blocks Texas In-State Tuition for Undocumented Students
7/10/2026, 9:48:39 PM
Core Ruling
On July 9, 2026 the 5th U.S. Circuit Court of Appeals affirmed a district-court consent judgment that bars Texas from granting in-state tuition rates to students who are not lawfully present in the United States. The panel held that 8 U.S.C. § 1623(a) preempts the Texas Education Code provision because a state may not confer a post-secondary benefit on an illegal alien based on residence unless the same benefit is available to all U.S. citizens and nationals regardless of residency. The decision is final for Texas, and the state has indicated it will not pursue further appeal.
Legislative Background
The Texas “Dream Act,” enacted in 2001 under Governor Rick Perry, allowed certain undocumented students to qualify for in-state tuition after graduating from a Texas high school, residing in the state for three years, and signing an affidavit promising to seek legal residency. The policy survived two decades of legislative attempts to repeal it and remained in effect until the Department of Justice sued Texas in June 2025, alleging conflict with federal law. Texas Attorney General Ken Paxton entered a joint motion agreeing with the government, leading to a consent judgment entered by U.S. District Judge Reed O’Connor on June 4, 2025.
Federal Legal Basis
The appellate court relied on the preemption language of 8 U.S.C. § 1623(a), which bars states from offering “postsecondary education benefits” to illegal aliens unless the same benefit is universally available to U.S. citizens and nationals. The majority opinion, written by Judge Jerry Smith, emphasized that the Texas provision created a residency-based benefit for undocumented students while out-of-state U.S. citizens paid higher rates, violating the statute.
Official Reactions
The Justice Department praised the outcome, noting the enforcement of federal immigration statutes. Former Attorney General Pam Bondi said the department “commends Texas leadership and AG Ken Paxton for swiftly working with us to halt a program that was treating Americans like second-class citizens in their own country.” Governor Greg Abbott posted that Texas and the “Trump DOJ” had secured “another major victory for the rule of law.” Assistant Attorney General Brett Shumate announced the appellate victory on X, linking to the court’s opinion.
Opposition and Dissent
Left-leaning groups—including the Texas Civil Rights Project, the American Civil Liberties Union, and the Democracy Forward Foundation—sought to intervene to defend the tuition program but were denied. Judge Irma Carrillo Ramirez dissented, arguing that the rapid settlement of the case raised due-process concerns and suggesting the statute might infringe the Tenth Amendment by directing state policy.
Student Impact
Undocumented students enrolled after the judgment must now pay nonresident tuition, which is “typically several times higher” than in-state rates. Earlier estimates placed the number of affidavit signers at roughly 19,000, though that figure included some lawfully present students. The Higher Ed Immigration Portal reported that, before the ruling, Texas hosted the nation’s second-largest population of undocumented college students—about 57,000. DACA recipients and other lawfully present students remain eligible for in-state tuition under existing state guidance.
Conflicting Data & Gaps
Sources differ on the exact number of students affected: one estimate cites 19,000 affidavit signers, while another reports 57,000 undocumented enrollees overall. No comprehensive public database tracks how many currently receive in-state rates, leaving the precise impact unclear. Additionally, a Minnesota federal court in March rejected the DOJ’s reading of the statute, highlighting divergent judicial interpretations of preemption.
Verbatim Quotes
- “The Justice Department commends Texas leadership and AG Ken Paxton for swiftly working with us to halt a program that was treating Americans like second-class citizens in their own country,” — Pam Bondi, Former Attorney General
- “Put another way, if some U.S. citizens or nationals, regardless of residency, are ineligible for reduced in-state tuition rates, then all illegal aliens must be ineligible to receive the same benefit based on residency. U.S. citizens or nationals must be treated no worse than illegal aliens,” — Judge Jerry Smith
- “The district court correctly denied intervention after concluding that they could not plausibly defend the preemption claim,” — Judge Jerry Smith
- “Texas and the Trump DOJ just secured another major victory for the rule of law.” — Governor Greg Abbott
Future Outlook
The consent judgment remains in effect for the 2025-2026 academic year and beyond, with no indication of further litigation from Texas. The ruling may influence pending challenges to similar tuition policies in other states, though courts have shown divergent views on the scope of federal preemption.
