Immigrant students and their advocates are working to reopen federal lawsuits that ended in-state tuition benefits for undocumented students in two states and another state where the same outcome seems imminent. Advocates say the judges ruled in favor of the government without a public hearing and the affected students weren’t given the opportunity to defend the policies.

Since the summer, the U.S. Department of Justice challenged in-state tuition policies in Illinois, Kentucky, Minnesota, Oklahoma and Texas, claiming state laws extending in-state tuition prices to undocumented students breach federal law.

In Texas and Oklahoma, attorneys general quickly sided with the DOJ and judges swiftly ruled to end in-state tuition benefits for undocumented students. As a result, tuition tripled for some undocumented students this fall, forcing them to make difficult choices about whether they could afford to stay enrolled.

Kentucky’s undocumented students could soon face the same dilemma. The Kentucky Council on Postsecondary Education agreed to end in-state tuition benefits for local undocumented students in a settlement filed in September, but a judge has yet to make a ruling. Meanwhile, legal battles in Minnesota and Illinois are ongoing as these states defend their policies.

Since these lawsuits first emerged, civil rights groups and students have sought to intervene or become parties to them. They’re hoping to reopen the quickly closed cases to have their say in court.

A Latino civil rights organization, the Mexican American Legal Defense and Educational Fund, was the first to file a motion to intervene on behalf of undocumented students in Texas in June. A month later, the American Civil Liberties Union of Texas, the Texas Civil Rights Project, Democracy Forward and the National Immigration Law Center followed suit. They filed their own emergency motions to intervene on behalf of the activist group La Unión del Pueblo Entero, the Austin Community College District’s Board of Trustees and Oscar Silva, a student at the University of North Texas.

MALDEF filed a similar motion on behalf of a group of undocumented students in Kentucky in August. And last week, the organization moved to intervene for students in Oklahoma, as well.

Thomas A. Saenz, MALDEF president and general counsel, said undocumented students in Kentucky, Oklahoma and Texas “were promised regular tuition, and as a result of that promise, made the decision to attend public higher education institutions in those states,” but “that promise was stripped away wrongfully” and without public input.

He stressed that, except for in extreme circumstances, such as cases involving national security, federal courts are meant to do their work in the public eye. But the Texas and Oklahoma laws got the ax without a public hearing. He also argued state lawmakers who dislike these policies can seek to repeal them, like any other state law, but there’s “no basis for legally challenging them.”

“They’re not allowed to close the public out, do things behind closed doors,” Saenz said. “We ought to expect our courts to conduct their work in public. And that did not happen in Texas. It did not happen in Oklahoma.”

A Bumpy Road

Despite students and advocates’ efforts, the motions to intervene have hit a legal setback.

In Texas, U.S. District Judge Reed O’Connor denied both MALDEF’s and the other groups’ motions to intervene. O’Connor, a George W. Bush appointee, said in court filings he agreed with the federal government and Texas that the motions were “legally futile” because federal law “pre-empts” the challenged Texas law. All of the groups seeking to intervene appealed the decision to the U.S. Court of Appeals for the Fifth Circuit.

Saenz pushed back on the judge’s reasoning, saying O’Connor agreed with Texas and the DOJ’s conclusion “without any argument” or a public hearing where he could have heard a defense of the Texas Dream Act, the 24-year-old law that offered in-state tuition to undocumented students.

“No administration of either party in nearly a quarter century has ever challenged the Texas Dream Act, so his conclusion of futility is simply ludicrous,” Saenz said.

The law was never “presented,” according to Saenz. “That’s the way the courts are supposed to work. You’re supposed to have [an] argument presented in an adversarial manner. He simply signed off on a concocted agreement” between the Texas and U.S. attorneys general, he said.

A group of higher ed institutions and organizations have rallied behind MALDEF and other advocacy groups. The Presidents’ Alliance on Higher Education and Immigration filed a 43-page amicus brief with the Fifth Circuit last week, defending interveners in Texas. Thirty-seven colleges, universities, higher education and immigrant rights organizations also signed on to the amicus brief, including the American Association of Colleges and Universities and the Association of Catholic Colleges and Universities.

The district court decision “violates democratic principles by denying all interested parties their right to be heard,” the amicus brief read.

Whether or not intervention efforts succeed, the stakes of these overturned state laws are too high not to try everything possible, said Miriam Feldblum, president and CEO of the Presidents’ Alliance.

“This is about workforce development and supporting our domestic—including immigrant—talent pipeline that colleges and universities train, educate, nurture, and that go on to fuel the workforces … in communities and states,” she said.

She also described intervening as a matter of “fairness.”

“This is not about special treatment of undocumented students,” Feldblum said. “The tuition-equity challenges are targeting students who have grown up in the U.S., who have graduated from local high schools to pursue postsecondary education. This is what we want them to do. This is why we’re investing in their education.”

Despite the roadblock, Saenz said he’s still confident motions to intervene will ultimately triumph.

“I’m very hopeful, because it’s the law,” he said. “Intervention is legally required to be granted in all of these cases. And when we get to the merits of whether the tuition-equity laws are pre-empted or not, the law is absolutely on our side.”