EducationIssuesNew Lawsuit Takes Aim at Texas Universities’ Out-of-State Tuition

Though the lawsuit is nominally against UNT, the think tank hopes for a declaration that out-of-state tuition for all state universities in Texas violates the U.S. Constitution.
November 20, 2020
The Texas Public Policy Foundation (TPPF), a conservative think tank, and student activism group Young Conservatives of Texas (YCT) have joined in court to sue the University of North Texas (UNT) in the hopes that a win can reduce tuition costs for students.

TPPF’s legal team, led by general counsel Robert Henneke, represents YCT in a lawsuit against UNT claiming that a provision within Texas’ Education Code that allows universities to set higher rates for out-of-state students violates the U.S. Constitution.

Specifically, federal law states that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit.”

The Texas Education Code, on the other hand, sets different rates for Texans and non-Texans and also considers non-citizen aliens to be residents of Texas if they live in the state — and are therefore eligible for in-state tuition.

In other words, Texas law allows universities to provide the in-state tuition rate to illegal aliens, while federal law mandates that collegiate benefits for aliens should also be available for citizens in college. The plaintiffs call this an unconstitutional fault line and hope that a win in the lawsuit will effectively end out-of-state tuition.

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“Federal law provides that all citizens must have access to at least the same level of educational benefits as such aliens,” the lawsuit reads, filed Monday.

“Because this state’s statute directly conflicts with federal law, it is preempted by, and thus unconstitutional under, the Supremacy Clause of the United States Constitution.”

Henneke emphasized that lower tuition, not immigration reform, is the goal of the case.

“Our focus has nothing to do with in-state tuition for illegal aliens. The focus of this case is on the high cost of higher education for all students, and here we have a specific example where out-of-state students under Texas law are being charged more,” Henneke said.

“This is one way to lessen the burden on students who are pursuing an education at the University of North Texas. And I think the better response to the complaint about the high cost of higher education is not to cancel debt but to prevent that debt from being incurred in the first place, and the only way we can do that is by making college less expensive.”

The lawsuit, filed in Denton County district court, requests a declaration that the provision within Texas code that sets different rates for out-of-state students is unconstitutional.

The suit does not ask for any declaration against the part of Texas code that determines resident status. A win for TPPF in the suit would set a legal precedent against out-of-state tuition in Texas, affecting all state universities and not just UNT.

The federal law only requires equity between residents and non-residents. With current code, the out-of-state rate would have to drop to $50 per credit hour — Texas’ current general tuition rate for public universities — to meet the federal requirement.

If the Texas legislature were to adjust the current specified general tuition rate of $50 per credit hour, potentially giving schools more authority over their rates, the lawsuit could yield an adverse effect if TPPF wins the declaration they seek. Texas universities could raise in-state tuition to offset losses instead of lowering out-of-state tuition. But for now, it’s specified in code.

The university estimates an average annual cost of attendance for Texas residents living on campus at $25,680, compared to $38,340 for out-of-state students. UNT’s tuition calculator estimates a tuition cost of $4,201 for undergraduate Texas residents taking 15 hours and $10,336.65 for undergraduate non-Texans.

Since service of the lawsuit is still pending, UNT has not yet filed an answer.

The offices of the UNT administrators named in the lawsuit did not respond for comment.


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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.