Texas begins implementing in-state tuition rate ban for students in U.S. illegally

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(The Center Square) – The Texas Higher Education Coordinating Board adopted new rules to prohibit higher education institutions in Texas from providing in-state tuition rates to students who are in the country illegally. 

The rules were adopted in order for Texas to comply with a court order in a lawsuit the Trump administration won against Texas. 

The Trump administration sued Texas, arguing provisions of the Texas Education Code were “expressly preempted by federal immigration law,” 8 USC Section 1623, which states, “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit . . . without regard to whether the citizen or national is such a resident.”

Higher education institutions providing instate tuition to noncitizens while not providing it to all citizens regardless if they lived in Texas or not was illegal, the administration argued.

“In direct and express conflict with federal law, Texas education law specifically allows an alien who is not lawfully present in the United States to qualify for in-state tuition based on residence within the state, while explicitly denying resident-based tuition rates to U.S. citizens that do not qualify as Texas residents,” the administration argued. 

“No matter what a state says, if a state did not make U.S. citizens eligible, illegal aliens cannot be eligible,” the administration argued. The court agreed. 

A consent agreement was reached in June prohibiting Texas from providing in-state tuition to all students who are in the country illegally, The Center Square reported. 

The board adopted rule changes on “Determination of Resident Status,” which apply to Texas Education Code Chapter 54, Subchapter B, Tuition Rates. It applies to public, private and independent higher education institutions in Texas when “determining a person’s entitlement to resident status under any provision of the TEC.”

It states that in order to be eligible for in-state tuition, students “must be lawfully present in the United States, in addition to meeting the other requirements set forth in the new rule.” Students “must be able to demonstrate, and each institution must verify, that the person is lawfully present in the United States and also meets one of the three classifications of resident status defined in TEC.”

It requires institutions to reclassify students and charge the correct tuition during the Fall 2025 semester with stipulations. “A reclassification takes effect in the current semester if the reclassification occurs prior to the census date. Otherwise, it takes effect in the first succeeding academic term,” it says.

“Institutions are responsible for charging a person nonresident tuition beginning with the first academic term that begins after the date the institution discovers that the institution erroneously classified a person as a Texas resident,” it clarifies.

Multiple immigration groups objected to the change, including those representing Deferred Action for Childhood Arrivals (DACA) students. The board said it is “legally bound by the judgment, as an agency of the State of Texas” and “does not have the authority to permit any other person or institution that may be separately and independently bound by federal law and the Federal Order to delay or avoid compliance.”

The federal order prohibits in-state tuition from being granted to students who are “not lawfully present in the United States.” The board points to applicable case law and federal orders “indicating that DACA recipients are not lawfully present and thus ineligible to receive the benefit of Texas resident tuition on that basis.” 

It also points to the Fifth Circuit ruling more than once that the DACA program created by former President Barack Obama is illegal.

Texas first sued to end DACA in 2019, joined by 10 states. In 2021, a district court ruled that DACA is procedurally and substantively unlawful. The ruling was appealed to the Fifth Circuit, which upheld the district court’s ruling. 

In 2022, the Fifth Circuit ruled DACA was illegal but didn’t end the program. Instead, it ordered the federal government not to approve any new DACA applications, The Center Square reported.

Next, the Biden administration’s Department of Homeland Security promulgated another rule on DACA, which the state coalition challenged. In 2023, the district court again ruled DACA was illegal, vacated it and implemented a nationwide injunction, which remains in effect. 

The ruling was again appealed; the Fifth Circuit again upheld it in February, The Center Square reported. DACA remains illegal with a nationwide injunction in place, according to the Fifth Circuit.