Appellate court upholds striking down of in-state tuition for illegal immigrants in Texas

By Ryan Foley, Christian Post Reporter Tuesday, July 14, 2026

A federal appellate court has upheld a decision striking down a Texas law granting in-state tuition to illegal immigrants.

In an opinion published Thursday, the 5th U.S. Circuit Court of Appeals upheld a lower court’s ruling that a Texas law letting illegal immigrants living in the state pay in-state tuition at public colleges and universities is unconstitutional. A three-judge panel reviewed the earlier decision from the U.S. District Court for the Northern District of Texas. Judges Jerry Smith, a Reagan appointee, and Don Willett, a Trump appointee, upheld the ruling, while Judge Irma Ramirez, a Biden appointee, dissented.

The majority opinion, written by Smith, said Texas’ policy violates a federal law stating 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 (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.” 

Thursday’s ruling follows a lawsuit the U.S. Department of Justice (DOJ) filed against Texas. The state settled the suit last year, agreeing to stop charging illegal immigrants in-state tuition rates.

Afterward, two advocacy groups, a community college and a student motioned to “intervene and undo the consent judgment,” Smith noted.

“The district court denied intervention, reasoning that any attempt to intervene would be futile because the statute was preempted," Smith added. “The district court correctly denied intervention after concluding that they could not plausibly defend the preemption claim. Section 1623(a) preempts what we call the Challenged Provisions vis-à-vis illegal aliens, barring 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."

The 5th Circuit’s ruling comes just a week after the U.S. Supreme Court struck down President Donald Trump’s executive order stating that the 14th Amendment’s citizenship clause — “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside” — does not apply to illegal immigrants.

According to the National Immigration Law Center (NILC), 22 other states currently let illegal immigrants obtain in-state tuition: Arizona, California, Colorado, Connecticut, Hawaii, Illinois, Kansas, Kentucky, Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Virginia and Washington. The District of Columbia also allows it. 

The NILC noted that Florida and Oklahoma have recently repealed in-state tuition for illegal immigrants. 

Last year, Trump signed an executive order directing the U.S. attorney general and secretary of homeland security to “identify and take appropriate action to stop the enforcement of State and local laws, regulations, policies, and practices favoring aliens over any groups of American citizens that are unlawful, preempted by Federal law, or otherwise unenforceable, including State laws that provide in-State higher education tuition to aliens but not to out-of-State American citizens.”

A September 2025 report from the Presidents’ Alliance on Higher Education and Immigration found that the DOJ had also sued four other states over the in-state tuition issue: Illinois, Kentucky, Minnesota and Oklahoma. After the report’s release, Oklahoma repealed its in-state tuition policy, and the DOJ filed a lawsuit against California over its similar policy.