Texas Bill Would Keep DACA Recipients from Receiving In-State Tuition

By Preston Huennekens on November 30, 2018


Every state in the country operates public universities. Most Americans with college degrees graduated from public universities. Because state taxes support them, tuition is often significantly (and properly) higher for non-resident students. International students are also considered out-of-state residents and are not given in-state tuition discounts.

With this in mind, should public universities classify DACA recipients as international students, or do they count them as in-state residents?

The answer to that question went unanswered when President Obama unveiled the Deferred Action for Childhood Arrivals announcement in 2012.

The government granted DACA recipients renewable work permits and Social Security numbers that they could use to enroll in college. The Justice Department never defined residency rules for charging tuition to DACA recipients.

Given this ambiguity, many states rushed to clarify that they would count DACA recipients as in-state residents by passing legislation such as the Maryland Dream Act. On the other hand, Arizona, Missouri, Georgia, and Indiana all passed legislation stating that DACA recipients are not entitled to resident status and must pay out-of-state tuition.

In 2001, years before DACA, Texas passed its own bill saying that young illegal aliens who "lived in Texas for three years, sought legal status, and were a graduate of high school or earned a GED" could attend college and pay in-state tuition. Then-Governor and future 2012 and 2016 presidential hopeful Rick Perry signed the bill into law.

According to USCIS, Texas has the second-highest number of DACA recipients, behind only California. It is likely that some of them attended a state university by paying in-state tuition, subsidized by taxes.

Texas state Rep. Kyle Biedermann introduced a bill that would bar Texas from counting DACA recipients as Texas residents for tuition purposes at state universities. House Bill 413 would amend Section 54.052 of the state's Education Code to include a subsection reading that:

[A] person who is not authorized under federal statute to be present in the United States may not be considered a resident of this state for purposes of this title.

This 30-word addition would bar DACA recipients from receiving tuition benefits as in-state residents. Note that it would not prohibit anyone from attending a state university. Just as a foreign student on an F visa or an American student from Oklahoma, DACA recipients would pay out-of-state tuition if they attend Texas public universities.

Biedermann's bill is not an outrageous proposition because DACA recipients are not citizens or legal residents. In an interview Biedermann asked, "Why should we give them a deduction or a subsidy at taxpayer expense when other Texans could use the funds also to get educated?" Further, they are not a group "authorized under federal statute to be present in the United States" because DACA is, after all, only an administrative deferment of their future removal. This thinking informed the Arizona Supreme Court's decision to bar DACA recipients from receiving tuition benefits in that state, noting that under the Illegal Immigration Reform and Immigrant Responsibility Act individuals who are not lawfully present in the United States cannot receive public benefits.

HR 413 may fail in the Texas legislature, but it is in line with similar legislation in other states. It is nowhere near as prohibitive as Alabama and South Carolina, which both ban illegal aliens from attending public universities altogether. Until any congressional legislation defines their permanent status, it is not unreasonable for states to treat DACA recipients as international students and charge them out-of-state tuition.