Court: UNT can continue charging out-of-state students more than undocumented Texans

The University of North Texas can still charge out-of-state students higher tuition than undocumented students who are in-state residents. The 5th Circuit Court of Appeals, sitting in New Orleans, reversed a lower court's ruling.

According to Texas Higher Education Coordinating Board data, more than 1,500 students at the University of North Texas were out-of-state students in the Fall of 2022.

“The fifth circuit’s unanimous opinion affirms the position UNT has taken throughout this litigation. 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," said Kelley Reese, interim vice president and senior associate vice president of university brand strategy and communications at the University of North Texas.

The ruling is a win for undocumented students who, since 2001, have been allowed to pay in-state tuition if they lived in the state for three years and graduated from a Texas high school.

"I've grown up in the city of Garland, Texas, my whole life," said Oscar Silva.

Silva's family moved to North Texas from Mexico when he was two years old. He is not a citizen and tells NBC 5 after a court decision on a federal program known as Deferred Action for Childhood Arrivals he has "no real pathway to citizenship.”

"When I found UNT, it was affordable and it was close to Garland, Texas. I was ready to call this my home for the next four years," Silva said, "If it wasn't for in-state tuition I would not be at UNT right now."

Since then, he's become the president of Eagle Dreamers, a student immigration advocacy group.

Over the past year, another student group has been squaring off with the leadership at the University of North Texas. The Young Conservatives of Texas argued in court a federal law - the Illegal Immigration Reform and Immigrant Responsibility Act, passed in 1996 - states a non-citizen cannot get a benefit not available to citizens. Lawyers with the conservative think-tank Texas Public Policy Foundation filed the lawsuit on their behalf against Neal Smatresk, President of UNT, and Shannon Goodman, VP of Enrollment at UNT.

According to court documents, in-state students at UNT pay $50 a credit hour while out-of-state students pay more than $450 a credit hour.

However, the 5th Circuit Court of Appeals sides with UNT because the university offers in-state tuition to undocumented students and citizens alike. There's no special treatment as long as you're a Texas resident the court argued.

The appeals court wrote “If immigrants shall be eligible, U.S. citizens are” and the school's policy "does nothing more than set the tuition price for nonresident students, citizens or not."

The judges did agree the Young Conservatives did have standing and were harmed, writing "There may be valid preemption challenges to Texas’ scheme here. But this is not one of them."

That gives some wiggle room for an appeal or a future lawsuit according to Christian Townsend, an attorney on the case for the Texas Public Policy Foundation.

“We got involved because we believe in the supremacy clause of the U.S. Constitution, which holds that federal law is supreme to state law," said Townsend, “The court held that our clients are injured by the fact they have to pay nine times more than in-state students.”

Townsend tells NBC 5 they are reviewing the decision and are deciding whether to appeal to the United States Supreme Court. If that highest court takes up the case it won't just be a fight over tuition at the University of North Texas but it will impact every public university in the state and may even put in jeopardy the Texas Dream Act.

According to UNT, the average annual cost of attendance for a Texas resident living on campus and enrolled in 15 hours per semester is $26,554. For out-of-state students, the average annual cost of attendance is $38,794.