Virginia agrees to eliminate in-state tuition for undocumented students
The Justice Department, led by Attorney General Pam Bondi, has sued seven states challenging their tuition policies for undocumented students.
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Republican Virginia Attorney General Jason Miyares, who has just over two weeks left in office, agreed with the federal Justice Department that a 2020 law providing in-state tuition to undocumented students was unconstitutional.
In a joint court filing, Miares and Justice Department attorneys asked a federal judge to invalidate the Virginia Dream Act and bar state authorities from enforcing it. If approved, the joint consent decree would make Virginia the fourth state to repeal a policy that allowed eligible undocumented students to pay lower in-state tuition. The joint agreement comes just one day after the Trump administration sued Virginia over its in-state tuition policy — the seventh such lawsuit.
In response to these challenges, some states fought the Justice Department, and several Republican-led states quickly agreed to stop providing in-state tuition to undocumented students. The rapid changes in policy have caused confusion and chaos for students as they scramble to find ways to pay for their tuition. Some advocacy groups have sought to join the lawsuit challenging the Justice Department.
Miares, who lost his re-election bid to Democrat Jay Jones in November, wrote on social media that it was clear the 2020 regulations were “superseded by federal law.”
“Illegal immigrants do not receive benefits that are not available to U.S. citizens,” he wrote. “Rewarding non-citizens with the privilege of in-state tuition is wrong and will only further incentivize illegal immigration. I have always said I would strike, and I am proud to play a role in ending this illegal program.”
Trump’s lawyers argued in the Virginia lawsuit and elsewhere that such policies discriminate against U.S. citizens because out-of-state students are ineligible for in-state tuition. In Virginia, undocumented students are eligible for a reduced tax rate if they graduate from a state high school and they or their parents filed a Virginia income tax return at least two years before enrolling in 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 stall for time to prevent the new administration from defending them.” He added that his team was reviewing their legal options.
Meanwhile, the Dream Project, a Virginia nonprofit that supports undocumented students, is seeking to intervene in the lawsuit and ask the court to delay consideration of the proposed order. An estimated 13,000 undocumented students were enrolled in Virginia colleges and universities in 2018, documents show.
The Dream Project argued in its filing that it and the students it serves would be harmed if the Virginia Dream Act were overturned and that courts should hear defenses of the law.
“The Trump administration deliberately filed this motion late at night during the holidays without briefing, public oversight, or hearing from the scholars and families who will be impacted by this ruling,” Zuraya Tapia-Hadley, executive director of the Dream Project, said in a release. “The state and federal government are trying to re-legislate and set aside the will of the people. If we don’t intervene, this effectively opens the door for established law to be thrown out with the stroke of a pen through the ruling.”
Carl Tobias, a law professor at the University of Richmond, said he hopes Judge Robert Payne will grant the motion to intervene, noting that he “adheres to correct procedure.”
“There is a basic premise that every lawsuit should have two sides, and there are not two sides in this lawsuit,” he said, adding that if a judge does approve the consent decree, the General Assembly could always rewrite a law similar to the Virginia Dream Act.
To Tobias, the legislation is constitutional and should withstand legal challenges.
“This administration has a very different view of what the Constitution requires, so they can make their own arguments,” he said. “But they shouldn’t be creating them in a vacuum without hearing the other side.”
