Under Attorney General Pam Bondi, the Justice Department has sued seven states to challenge their tuition policies for undocumented students.
Andrew Harnik/Getty Images News/Getty Images
With just over two weeks left in office, Republican Virginia attorney general Jason Miyares agreed with the federal Justice Department that a 2020 law granting in-state tuition to undocumented students is unconstitutional.
In a joint court filing, Miyares and lawyers for the Justice Department asked a federal judge to declare the Virginia Dream Act invalid and bar state authorities from enforcing it. If approved, the joint consent decree order would make Virginia the fourth state to scrap its policies that allow eligible undocumented students to pay the lower in-state tuition rate. The joint agreement came just one day after the Trump administration sued Virginia over its in-state tuition policies—the seventh such lawsuit.
In response to these challenges, some states have fought the Justice Department, while several Republican-led states quickly agreed to stop offering undocumented students in-state tuition. The rapid change in policies spurred confusion and chaos for students as they scrambled to find ways to pay for their education. Some advocacy groups have sought to join the lawsuits to challenge the Justice Department.
Miyares, who lost his re-election bid to Democrat Jay Jones in November, wrote on social media that it’s clear that the 2020 statute “is preempted by federal law.”
“Illegal immigrants cannot be given benefits that are not available to American citizens,” he wrote. “Rewarding noncitizens with the privilege of in-state tuition is wrong and only further incentivizes illegal immigration. I have always said I will call balls and strikes, and I am proud to play a part in ending this unlawful program.”
Trump lawyers argued in the Virginia lawsuit and elsewhere that such policies discriminate against U.S. citizens because out-of-state students aren’t eligible for in-state tuition. In Virginia, undocumented students can qualify for the reduced rate if they graduated from a state high school and if they or their parents filed Virginia income tax returns for at least two years before they enroll at a postsecondary institution.
Jones, the incoming Democratic attorney general, criticized the administration’s lawsuit as “an attack on our students and a deliberate attempt to beat the clock to prevent a new administration from defending them.” He added that his team is reviewing their legal options.
In the meantime, the Dream Project, a Virginia nonprofit that supports undocumented students, is seeking to intervene in the lawsuit and has asked the court to delay its consideration of the proposed order. An estimated 13,000 undocumented students were enrolled in Virginia colleges and universities in 2018, according to the filing.
The Dream Project argued in its filing that it and the students it serves would be harmed if the Virginia Dream Act is overturned and that the court should hear a defense of the law.
“The motion by the Trump administration was deliberately filed over a holiday in the dead of night without briefing, without public scrutiny, and without hearing from our scholars and families who would be impacted by this judgment,” Dream Project executive director Zuraya Tapia-Hadley said in a news release. “The state and federal administrations are attempting to re-legislate and set aside the will of the people. If we don’t intervene, that essentially opens the door for settled law to be thrown out with the wave of a pen via a judgment.”
Carl Tobias, a law professor at the University of Richmond, said he’s hopeful that the judge, Robert Payne, will grant the motion for intervention, noting that he “is a stickler for proper procedures.”
“There’s a basic premise that there should be two sides to every litigation, and there aren’t two sides in this litigation,” he said, adding that if the judge does approve the consent decree, the General Assembly could always put a law similar to the Virginia Dream Act back in place.
To Tobias, the legislation is constitutional and should withstand a legal challenge.
“This administration has a very different view of what the Constitution requires, so they can make their arguments,” he said. “But they shouldn’t be making them in a vacuum without hearing the other side.”
