University of North Texas can charge out-of-state students higher tuition than undocumented Texans, appeals court rules

Students walk the University of North Texas campus in Denton, TX on February 24, 2022.
Students walk the University of North Texas campus in Denton last year. A federal appeals court said the school can charge out-of-state American citizens more for tuition than undocumented Texans pay. Credit: Shelby Tauber for The Texas Tribune

The University of North Texas can charge out-of-state American citizens higher tuition than undocumented students who live in Texas, the 5th U.S. Circuit Court of Appeals ruled Monday. The appeals court reversed a federal district court ruling that had blocked the practice.

Monday’s ruling allows the school to continue its current tuition policies.

The ruling is a win for undocumented students in Texas who benefit from the lower tuition rates and advocates who have fought against some Texas lawmakers’ efforts to eliminate the in-state tuition benefit for undocumented students.

If the appeals court had upheld the previous ruling, the decision would’ve had broad implications for all public universities in the state that financially rely on charging out-of-state students higher rates.

In its decision, the appeals court said the lower court misinterpreted federal statute, also ruling that U.S. District Judge Sean Jordan abused his discretion when he barred the university from charging higher tuition to out-of-state students than in-state students because it relied on an incorrect legal analysis.

But the court did leave the door open to future challenges of other aspects of Texas’ in-state tuition law.

“There may be valid preemption challenges to Texas’ scheme here. But this is not one of them,” the court stated.

Rob Henneke, executive director and general counsel of the right-leaning Texas Public Policy Foundation, said Monday’s ruling is only a minor victory for UNT. He disagrees with the court’s analysis but thinks the court left room for another challenge on different legal grounds.

He said TPPF is considering its next steps to potentially pursue further legal action on the issue.

The lawsuit centers on Texas’ 2001 law allowing undocumented students who have lived in Texas for three years and graduate from a Texas high school to pay in-state tuition.

Three years ago, TPPF filed the lawsuit on behalf of the Young Conservatives of Texas student group at UNT. In the lawsuit, they pointed out that the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 states that an individual “who does not legally reside in the United States should not be eligible for a postsecondary education benefit granted on the basis of where someone lives unless United States citizens qualify for the same benefit.”

Therefore, they argued, out-of-state students shouldn't have to pay more than undocumented Texas students.

In a statement, UNT celebrated the ruling.

“The fifth circuit’s unanimous opinion affirms the position UNT has taken throughout this litigation,” said Kelley Reese, interim vice president and senior associate vice president of university brand strategy and communications. “We appreciate the court of appeals’ careful review of Texas law. We at UNT will continue focusing on the reason we’re here — educating tomorrow’s leaders.”

At UNT, the average cost of tuition and fees for an in-state student was just under $12,000 in 2022, while an out-of-state student paid closer to $24,000 on average.

Students at the University of Texas at Austin who are Texas residents pay between $11,000 and $14,000 on average for tuition, while a nonresident student pays between $38,600 and $47,000 in tuition during that same time.

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