James Ho

Now-U.S. Circuit Judge James Ho of the 5th U.S. Circuit Court of Appeals appears before the Senate Judiciary Committee in Washington, D.C., on Nov. 15, 2017. U.S. Senate/Handout via REUTERS Acquire Licensing Rights

  • Judge James Ho critical of allowing Texas to charge out-of-state residents higher tuition
  • Panel held tuition law doesn’t conflict with U.S. immigration law

Aug 15 (Reuters) – A conservative federal appellate judge cast the lone vote to reconsider a panel’s ruling rejecting a challenge to a Texas law that allows immigrants living unlawfully in the state to pay lower tuition at public universities than out-of-state students.

U.S. Circuit Judge James Ho, an appointee of former Republican President Donald Trump, dissented Monday from the 5th U.S. Circuit Court of Appeals’ 15-1 decision to not revisit a three-judge panel’s July ruling in the University of North Texas’ favor.

The panel had reversed a lower-court judge’s injunction barring officials at the public university from charging out-of-state residents higher tuition than immigrants in the country illegally who under Texas law can pay in-state rates.

That ruling came in a lawsuit by a group called Young Conservatives of Texas, who argued the Texas law ran afoul of the Illegal Immigration Reform and Immigrant Responsibility Act, which restricts states’ ability to grant migrants in the country illegally certain postsecondary education benefits.

Ho was not part of that panel, which was comprised of three other judges likewise appointed by Republican presidents.

But he said he disagreed with its decision to reverse U.S. District Judge Sean Jordan, a fellow Trump appointee in Sherman, Texas, because the discount Texas offers migrants is “a blatant violation of federal law.”

“United States citizenship is one of the greatest privileges this world has ever known,” Ho wrote. “And the ability to obtain a quality education here is one of the most treasured components of the American dream.”

Yet he said Texas was “treating U.S. citizens less favorably than illegal aliens when it comes to postsecondary education benefits” under a policy that he suggested undercut federal border control.

“Our national objectives are undercut when states encourage illegal entry into the United States,” Ho wrote.

Robert Henneke, a lawyer for the plaintiff at the Texas Public Policy Foundation, said his client was weighing an appeal to the U.S. Supreme Court, saying Ho’s opinion “pointed out several important issues” that might interest the justices.

A lawyer for the university did not respond to a request for comment.

Currently, Texas charges tuition per semester credit hour at $50 for residents and $458 for non-residents. Immigrants in the United States unlawfully who reside in Texas can pay the resident rate.

In July’s panel opinion, U.S. Circuit Judge Edith Brown Clement said the specific Texas law the group challenged was not preempted, “even if other, unchallenged provisions in Texas’ scheme may be.”

That left the door open to future lawsuits. But Ho on Monday said forcing the group to sue a second time means that “Texas will continue to blatantly violate federal law while the litigation slowly churns.”

The case is Young Conservatives of Texas Foundation v. Smatresk, 5th U.S. Circuit Court of Appeals, No. 22-40225.

For Young Conservatives of Texas Foundation: Robert Henneke and Chance Weldon of Texas Public Policy Foundation

For University of North Texas: Wallace Jefferson of Alexander Dubose & Jefferson; Sandy Hellums-Gomez of Husch Blackwell

Read more:

Texas university can’t charge out-of-state residents more than migrants – judge

Texas university’s bid to keep treating migrants as in-state residents fails

Texas university says it doesn’t have to lower tuition for U.S. citizens

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at [email protected].

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