Virginia defends tuition assistance for immigrants in federal court 

RICHMOND, Va. (CN) — Virginia defended a policy allowing immigrant students to qualify for in-state tuition assistance in a federal court Tuesday as public universities begin preparing for the fall semester.

The commonwealth and the Justice Department’s civil division each argued for summary judgment on a challenge to two Virginia laws that provide in-state tuition assistance. Senior U.S. District Judge Robert Payne, a George H.W. Bush appointee, did not indicate when he would issue a ruling.

The Justice Department argued federal law preempts a 2020 law dubbed the Virginia Dream Act, which qualifies students for in-state tuition rates regardless of immigration status so long as they attend two years of high school in Virginia, graduate from a Virginia high school or pass an equivalent exam, and have a parent or guardian that has filed state income tax returns for at least two years before the date of registration.

The case centers around a subsection of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which forbids states from offering tuition benefits for immigrant students based on residence within a state without offering the same benefit to out-of-state citizens. The commonwealth argued the federal law does not affect the Virginia Dream Act, also known as the tuition equity pathway, because the act’s eligibility is based on high school attendance and tax payments rather than residency.

Justice Department attorney Sean Skedzielewski told Payne the combination of the criteria would make it essentially impossible to apply to out-of-state citizens. Payne said he wanted the parties to provide data on how many students qualify under the Virginia Dream Act and their immigration status.

“We would need to know the numbers,” Payne said. “That seems to me to be an important factor.”

Payne said it was important to analyze the context in which the Democratic-controlled General Assembly passed the act. Skedzielewski argued the federal law would preempt the act even if they brought a pre-enforcement challenge.

State attorney Robert Claiborne Jr. offered hypothetical scenarios where the tuition equity pathway would apply to out-of-state citizens, including a student who resides in another state but attended boarding school in Virginia, or students who cross the border between neighboring states, Maryland and West Virginia, to attend public high schools in Virginia. For instance, the Woodberry Forest School located in Madison County, Virginia, claims to have students from 27 different states.

“It is simply not true that high school attendance necessarily reflects a prior determination of residency under the commonwealth’s education statutes,” the commonwealth wrote in its motion for summary judgment.

Regardless of whether the students reside in another state, they still must have a parent or guardian who pays taxes in Virginia.

The commonwealth further argued that the Virginia Dream Act is not preempted because there are numerous other pathways for nonresident students to qualify for in-state tuition in Virginia. The academic common market pathway, for instance, is available to students from any of the 14 states in the Southern Regional Education Compact, so long as they seek a degree in a program not available in their home state.

Payne questioned why the commonwealth mentioned the other statutes that the federal government hasn’t challenged. The federal government said the preemption clause applies unless all nonresidents are eligible for in-state tuition. The commonwealth argued the tuition equity pathway is not preempted even if it is eligible for only one nonresident. Claiborne argued the other statutes satisfy the provision.

“The focus is on eligibility for post-secondary benefits,” Claiborne said. “Virginia statutes are supposed to be construed in harmony."

The federal government also argued the commonwealth’s domicile-based in-state tuition provision is preempted because it does not explicitly exclude immigrants. The commonwealth counters that the provision doesn’t apply to immigrants because of guidance from the state-empowered State Council of Higher Education for Virginia, which stated immigrant students categorically cannot have a Virginia domicile. Skedzielewski argued the court should analyze the plain text of the law and not rely on the council’s guidance.

The commonwealth also argued that even if the federal law preempts the tuition assistance statutes it would amount to unconstitutional commandeering under the 10th Amendment.

“Under the 10th Amendment and principles of federalism, Congress may not ‘issue direct orders to the governments of the states’ or ‘dictate[] what a state legislature may and may not do,’” the commonwealth said in its motion for summary judgment, quoting the Supreme Court’s opinion in Murphy v. NCAA. “That anticommandeering principle reflects the dual sovereignty of our federalist system of government, where Congress and the states have respective powers to act upon the people, but neither Congress nor the states have the power to act upon each other.”

The parties quibbled over whether the federal law is aimed at regulating states or individuals.

The Trump administration has sued states including New Jersey, Minnesota, California and Illinois over similar tuition assistance programs. Former Virginia Attorney General Jason Miyares, a Republican, asked the court to declare the Virginia Dream Act invalid with just over two weeks left in office. Attorney General Jay Jones, a Democrat, took a different position when he assumed office.

The federal government seeks a permanent injunction enjoining the implementation of the two tuition statutes. The Justice Department did not respond to a request for comment. The Office of the Attorney General said it would await the ruling to comment.