The Texas Higher Education Coordinating Board proposed new rules that would change how institutions determine in-state residency and tuition. The suggestions follow a June court order that struck down the Texas Dream Act, a law that allowed certain non-citizen students, including undocumented students, to access in-state tuition and financial aid. The board held a public hearing on Monday and is accepting testimonies until Sunday.  

In July, the University began requiring students to provide evidence of lawful presence to establish Texas residency and qualify for in-state tuition. The rules, which were proposed in August, would formalize the policy and only allow students who are lawfully present to receive tuition waivers or exemptions. Additionally, schools may confirm student eligibility for these benefits with U.S. Citizenship and Immigration Services, according to the proposed rules. 

Verifying student eligibility information with U.S. Citizenship and Immigration Services could be a violation of the Family Educational Rights and Privacy Act, said Danny Woodward, an attorney with the Texas Civil Rights Project, a non-profit advocacy organization. FERPA protects student records, including personally identifiable information. 

“It’s going to scare off students who are eligible for in-state tuition and who can show lawful presence,” Woodward said. “They might not want to be sending their personal information to the federal government at a time like this. It’s just going to have a chilling effect on access to education across the state.” 

According to the U.S. Citizenship and Immigration Services website, “unlawful presence” refers to any period of time when a person is present in the country “without being admitted or paroled.” Specific immigration statuses that demonstrate “lawful presence” remain unspecified, according to the proposed rules. A spokesperson for the board said it will not provide a definition of “lawful presence.” 

“It will continue to be up to institutions to consult with their own legal counsel on those issues and decisions,” the spokesperson wrote.

U.S. Citizenship and Immigration Services did not provide comment.

The complexity of immigration law presented challenges for universities attempting to comply with the federal court order, and they will continue if a clear definition of “lawful presence” is not provided, Woodward said. 

“The result is going to be that students who are in fact eligible for in-state tuition, even under the injunction, are not going to get it because universities are going to be making mistakes,” Woodward said. “That has already been happening.” 

After the court order, UT sent letters to 1,148 students instructing them to submit documentation of “lawful status,” according to responses provided by Assistant Vice Provost Brenda Schumann and assistant registrar Leighanne Rodriguez through a public information request. Lawful status has a narrower definition, which excludes people with Deferred Action for Childhood Arrivals or Temporary Protected Status, according to the Intercultural Development Research Association.

Marco Julian Gonzalez, a plan II, finance and business junior, helped convene students from different Hispanic fraternities and sororities at the Texas Capitol in the spring to share testimony on state laws that aimed to end the Texas Dream Act. The proposed rules place a greater financial burden on students, he said. Gonzalez created an action guide for providing written testimony to the board. 

“Very often, these same students are the first in their families to go to college,” Gonzalez said.  “They’re already being asked to navigate a place that feels foreign to them. Now, you’re adding even more barriers of information for them to be able to earn an education.”