What happened
The Fifth Circuit on Thursday affirmed a Texas federal judge’s refusal to let advocacy groups, a community college and a student intervene after the United States and Texas resolved a suit over in-state tuition for students not lawfully present.
The panel said the proposed intervenors could not clear a threshold futility analysis because the challenged Texas Education Code provisions were preempted by 8 U.S.C. § 1623(a). The court agreed with the district court that federal law “bars such a disparity” when students not lawfully present can qualify for resident tuition while out-of-state U.S. citizens cannot.
The dispute followed a June 2025 suit by the United States accusing Texas of allowing certain students not lawfully present to pay in-state resident tuition while requiring out-of-state U.S. citizens to pay higher nonresident rates. Texas settled, and the district court approved a consent judgment permanently enjoining enforcement of Texas Education Code sections 54.051(m) and 54.052(a).
Students for Affordable Tuition, La Union del Pueblo Entero, Austin Community College and Oscar Silva moved to intervene after judgment and sought to undo the consent judgment. The district court denied intervention, finding the effort legally futile because Section 1623(a) preempted the challenged provisions.
Writing for the panel, Judge Jerry E. Smith said the case was controlled in part by the Fifth Circuit’s 2023 Young Conservatives decision, which held that Section 1623(a) expressly preempts state rules granting benefits to unlawfully present noncitizens when U.S. citizens have not received the same benefit. Unlike the tuition-rate provision spared in that earlier case, the provisions challenged here addressed eligibility for resident tuition through Texas domicile or residence rules.
The court also clarified that futility review applies to would-be defense intervenors, joining what it described as the longstanding practice of other circuits. Intervention was futile, the panel said, because the proposed intervenors could not plausibly defend the challenged provisions against the federal preemption claim.
The Fifth Circuit affirmed denial of the intervention motions and dismissed the remaining claims for want of appellate jurisdiction.