Miyares makes deal with DOJ instead of taking tuition aid lawsuit to court

RICHMOND, Va. (WRIC) -- Outgoing Attorney General Jason Miyares is facing some pushback after he chose to enter into an agreement with the Trump administration rather than take its lawsuit -- in which it accused Virginia of breaking federal law -- to court.

In a Dec. 31 joint press release, the Legal Aid Justice Center, the ACLU of Virginia and the Dream Project announced that they had filed an emergency motion to intervene in a federal lawsuit that took aim at both undocumented and refugee students in Virginia.

On Monday, Dec. 29, the Department of Justice (DOJ) sued Virginia, claiming its tuition aid policies for migrants violate federal law. It went on to allege that these policies discriminate against U.S. citizens and incentivize illegal immigration.

According to the release, the next day, on Tuesday, Dec. 30, Miyares entered into an agreement with the DOJ that involved him "surrendering without defending the [policies]" in question.

“The Attorney General of Virginia has abandoned his duties to defend Virginia law and the people of the Commonwealth, so we must,” said ACLU-VA Senior Immigrants’ Rights Attorney Sophia Gregg in the release. "Attorney General Jason Miyares has sided with the Department of Justice — intentionally working in secrecy and over a holiday weekend — to manufacture a predetermined outcome to deprive Virginian students of not only their futures but their day in court."

But what does Virginia law actually say?

The policies in question largely stem from House Bill 1547, otherwise known as the "Virginia Dream Act," which went into effect on July 1, 2020. As explained by the Higher Ed Immigration Portal, under this law, undocumented students who meet certain criteria can qualify for in-state tuition at Virginia's public universities.

Those criteria are as follows:

• The student attended a Virginia high school for at least two years
• The student either graduated from said high school on or after July 1, 2008, or passed a high school equivalency examination approved by Virginia's Secretary of Education
• The student -- or a parent or guardian, in the case of a dependent student -- has filed Virginia income tax returns for at least two years prior to college enrollment, and evidence is submitted to that effect
• The student has registered as an entering student in a public Virginia college

A related measure, HB 1179, was signed into law on April 6, 2020. It allows certain individuals who have been admitted to the United States as refugees or who hold a Special Immigrant Visa to access in-state tuition.

According to the State Council of Higher Education for Virginia, the primary way a U.S. citizen can get access to in-state tuition in Virginia is by proving they have lived in the state for at least a year. However, there are several additional paths to in-state tuition access that cover a variety of circumstances.

One such path is through the tuition equity provision -- which U.S. citizens qualify for if they meet the same conditions listed above for undocumented students, as well as not having a current, valid visa.

In their motion, the Legal Aid Justice Center, the ACLU of Virginia and the Dream Project argue that these migrant tuition aid policies "were carefully crafted to comply with federal requirements" and that "the state's immediate surrender denies students their right to be heard."

'Sudden, severe and irreparable financial hardship'

The agreement between Miyares and the DOJ is still subject to approval -- however, if it is, impacted students could lose access to in-state tuition rates immediately.

"These are Virginia students who grew up in the Commonwealth, graduated from our high schools, contribute to our communities, and made life-altering decisions for their futures relying on a state law that has existed for years," said Rohmah Javed, director of the Immigrant Justice Program at the Legal Aid Justice Center, in the release. "They are Virginians in every way that matters, and they deserve someone to stand up and fight for them. We want to intervene for the court to consider the real-world impact on Virginia students before making a final decision."

According to data from the Higher Ed Immigration Portal, there are just over 13,000 undocumented students enrolled in Virginia higher education, which represents only 0.026% of Virginia's 508,000 college students. Notably, not all of these students necessarily qualify for in-state tuition under the terms listed above.

One of the three organizations involved in this motion, the Dream Project, provides scholarships and mentorship opportunities to undocumented students in Virginia, according to its website. It was established in 2010 after efforts to pass a federal Dream Act failed.

According to the release, many of the Dream Project's "Dream Scholars" rely on in-state tuition rates to be able to afford college -- meaning that, if the agreement Miyares and the DOJ struck is approved, these students will likely lose access to higher education.

The Dream Project's executive director, Zuraya Tapia-Hadley, said the following in a statement within the release:

“The motion by the Trump administration was deliberately filed over a holiday in the dead of night without briefing, without public scrutiny and without hearing from our scholars and families who would be impacted by this judgment. Through our students, volunteers and leaders, the Dream Project contributed to pivotal work to achieve the passage of the Virginia Dream Act. The state and federal administrations are attempting to re-legislate and set aside the will of the people. If we don't intervene, that essentially opens the door for settled law to be thrown out with the wave of a pen via a judgment. Virginia will lose the many talents that our scholars contribute to institutions throughout our Commonwealth. It’s also an existential challenge to the Dream Project and would undermine our core mission, disrupt ongoing scholarship and mentorship programs, and require the diversion of our limited resources to provide crisis support for students facing sudden, severe, and irreparable financial hardship.”

8News reached out to Miyares' office for comment and received the following statement:

"It is clear that this Northam-era state statute is preempted by federal law. Illegal immigrants cannot be given benefits that are not available to American citizens. Rewarding non-citizens with the privilege of in-state tuition is wrong and only further incentivizes illegal immigration. I have always said that I will call balls and strikes, and I am proud to have played a part in ending this unlawful program." 

We also reached out to Attorney General-elect Jay Jones (D), who will be taking over as Virginia's top attorney in less than a month. As of the time of reporting, we have not yet heard back.