Virginia Defends In-State Tuition Policy for Immigrant Students in Federal Court
Richmond, Va. – On Tuesday, Virginia defended its policy that allows immigrant students to access in-state tuition assistance in federal court, as public universities prepare for the upcoming fall semester. The Commonwealth, alongside the Civil Division of the Department of Justice, sought summary judgment regarding challenges to two Virginia laws that govern this tuition assistance.
Senior U.S. District Judge Robert Payne, appointed by President George H.W. Bush, did not specify when he would issue his ruling. The Justice Department contended that federal law supersedes the 2020 Virginia Dream Act, which was designed to make immigrant students eligible for in-state tuition provided they meet specific criteria, such as attending two years of high school in Virginia, graduating from a Virginia high school or passing an equivalent exam, and having a parent or guardian who has filed a state income tax return for at least two years prior to enrollment.
The case hinges on a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which forbids states from offering tuition benefits to immigrant students based on in-state residency unless they also extend the same benefits to out-of-state nationals. The federal government argued that the Virginia Dream Act, also referred to as the Tuition Fairness Pathway, is unaffected by federal law because its eligibility requirements focus on high school attendance and tax contributions rather than residency.
Sean Skerzelewski, an attorney with the Justice Department, emphasized to Judge Payne that the combination of these criteria renders it nearly impossible for out-of-state students to qualify. Judge Payne expressed interest in analyzing the potential impact of the Virginia Dream Act, requesting data on the number of eligible students and their immigration status.
Payne pointed out the importance of understanding the motivations behind the Democratic-led General Assembly’s decision to pass the bill. Meanwhile, Skerzelewski maintained that federal law preempts the state statute regardless of whether it is challenged prior to its implementation.
State Attorney Robert Claiborne Jr. proposed that the tuition equity path might also accommodate out-of-state students, including those attending Virginian boarding schools or those who cross state lines, such as students from Maryland and West Virginia, to attend public schools in Virginia. For instance, Woodbury Forest School in Madison County serves students from 27 different states.
The Commonwealth contended that high school attendance does not necessarily indicate a prior residency determination as per federal education law. Regardless of residency, students must have a parent or guardian who pays taxes in Virginia. Furthermore, the Commonwealth argued that the Virginia Dream Act does not infringe upon federal law, as nonresident students have various avenues to qualify for classes in Virginia, including programs like the Academic Common Market Pathway, which caters to students from participating states seeking degrees not available in their home state.
Judge Payne questioned the rationale behind the Commonwealth citing other statutes it has yet to challenge. The federal government argued that the preemption clause is applicable unless all non-residents qualify for in-state tuition, asserting that the tuition equity pathway fails even if only one nonresident meets the eligibility criteria. Claiborne responded that other statutes align with this provision.
Additionally, the federal government argued that the federal residency-based in-state tuition provision does extend to immigrants unless explicitly stated otherwise. The Commonwealth refuted this claim, asserting that under the guidance of the Virginia Council on Higher Education, immigrant students cannot establish domicile in the state. The Justice Department’s attorney argued that courts should interpret the law based on its explicit language rather than relying solely on council guidance.
The Commonwealth further maintained that even if federal law did override the tuition assistance regulations, such authority would violate the Tenth Amendment through unconstitutional coercion. The Confederation pointed to the Supreme Court’s ruling in Murphy v. NCAA, asserting that Congress cannot impose direct orders on state governments, highlighting the principle of federalism wherein both the federal government and states have effective governance over the people without infringing upon each other’s authority.
The ongoing debates included whether the federal law targets states or individual students. The Trump administration has previously targeted similar tuition assistance programs in New Jersey, Minnesota, and other states. Former Virginia Attorney General Jason Miyares called for a court ruling to invalidate the Virginia Dream Act shortly before leaving office, while his successor, Democratic Attorney General Jay Jones, took a different stance. The federal government is pursuing a permanent injunction to halt the enforcement of the two tuition laws, though the Justice Department has yet to respond to requests for subsequent comments. The Attorney General’s Office indicated it would wait for the ruling before issuing any statements.
