The Trump administration has challenged in-state tuition policies for immigrants without lawful status in 21 states, securing favorable orders in five while continuing litigation across 16 others, including an appeal of a Minnesota ruling.
By yourNEWS Media Newsroom.
The Trump administration’s Justice Department has expanded its legal campaign against state policies providing in-state college tuition to immigrants without lawful status, filing challenges in 21 states and securing favorable orders against policies in Texas, Kentucky, Oklahoma, Nebraska and Illinois.
The Justice Department said in its latest nationwide update that those five cases resulted in orders permanently enjoining or declaring unconstitutional state provisions that allowed certain immigrants without lawful status to receive reduced tuition. Litigation remains active elsewhere, including a federal appeal involving Minnesota.
Kansas has also moved toward ending its policy after the Justice Department sued the state in June and Kansas officials joined federal attorneys in seeking a consent decree that would permanently bar enforcement of the tuition law. The Justice Department said its broader campaign had reached 21 states by late August.
The Kansas agreement, however, was presented as a proposed consent decree requiring court approval. In its Aug. 27 update, DOJ continued to list Kansas among the cases that remained pending.
The administration’s legal argument centers on a federal statute enacted in 1996, 8 U.S.C. § 1623. The law provides that an immigrant who is not lawfully present in the United States may not receive a postsecondary education benefit based on state residence unless U.S. citizens can receive the same benefit regardless of whether they live in that state.
DOJ argues that state laws granting resident tuition to immigrants without lawful status while charging out-of-state American citizens higher tuition conflict with that federal restriction and are therefore preempted under the Constitution’s Supremacy Clause.
“Over 30 years ago, Congress made clear that States cannot put illegal aliens before our Nation’s own citizens,” Associate Attorney General Stanley E. Woodward Jr. said when DOJ announced its lawsuits against Arizona, New Mexico, Oregon and Washington in August. “By granting illegal aliens in-state tuition, Washington, Oregon, New Mexico, and Arizona are pushing citizens to the side and ignoring federal law. No more. As of today, we have now sued 21 states who we allege were thwarting Congress’s clear prohibition on placing aliens over citizens. Our efforts will not cease until President Trump’s promise is fulfilled: illegal aliens will not receive benefits denied to American citizens.”
Assistant Attorney General Brett A. Shumate of the Justice Department’s Civil Division made a similar argument.
“This is a simple matter of federal law: colleges cannot provide benefits to illegal aliens that they do not provide to U.S. citizens,” Shumate said. “This Department of Justice will not tolerate American students being treated like second-class citizens in their own country.”
The Justice Department’s Aug. 27 filings against Arizona, New Mexico, Oregon and Washington brought the administration’s total number of state challenges to 21.
At that point, DOJ identified active cases involving Minnesota, Virginia, California, New Jersey, Kansas, Massachusetts, Rhode Island, Maryland, Colorado, New York, Connecticut, Vermont, Arizona, New Mexico, Oregon and Washington.
Minnesota represents the administration’s most significant courtroom setback in the campaign so far.
A federal district judge dismissed the Justice Department’s challenge to Minnesota’s tuition and financial-aid laws in March, concluding that the state’s eligibility rules did not violate the federal statute in the manner DOJ alleged. The federal government appealed the decision to the 8th U.S. Circuit Court of Appeals, where the litigation remains ongoing.
Minnesota’s policy bases eligibility in part on attendance and graduation from a Minnesota high school rather than simply granting the benefit to every person residing in the state. That distinction is central to the legal dispute over whether the benefit is being awarded “on the basis of residence” within the meaning of federal law.
Kansas presented a different situation.
Kansas Attorney General Kris Kobach concluded in February that the state’s law conflicted with federal law. The provision allows certain people without lawful immigration status to qualify as Kansas residents for tuition purposes if they attended an accredited Kansas high school for at least three years and graduated or obtained a Kansas GED, among other requirements.
The Justice Department sued Kansas in June, and state officials joined federal attorneys in proposing an agreement that would prevent enforcement of the law.
“For decades, the Kansas legislature gave preferential treatment to illegal aliens over American citizens,” Woodward said at the time. “We encourage all States to follow the commonsense correction of Attorney General Kobach, ceasing any policy that rewards illegal entry into our nation with educational opportunities not available to U.S. citizens.”
Shumate said the department intended to continue challenging similar policies nationwide.
“Kansas’s unconstitutional and un-American laws should never have been passed in the first place and are prohibited by federal law,” he said. “The Department of Justice has won on this exact issue in Texas, Oklahoma, Kentucky, and Nebraska, and we will take this fight to any states that fail to put American citizens first.”
Illinois subsequently became the fifth state that DOJ identified as having received a favorable order, joining Texas, Kentucky, Oklahoma and Nebraska.
The legal campaign continued rapidly through the summer. DOJ filed challenges against Massachusetts and Rhode Island, followed by Maryland and Colorado, then New York, Connecticut and Vermont. The four lawsuits filed against Arizona, New Mexico, Oregon and Washington in late August brought the department’s announced total to 21.
The cases do not all involve identical state laws. Eligibility requirements differ among states, and courts must determine whether each individual policy conflicts with federal law.
The central federal provision does not categorically state that every immigrant without lawful status can never receive lower college tuition. Rather, it prohibits a state from granting a postsecondary benefit on the basis of residence to a person not lawfully present unless U.S. citizens are eligible for the same benefit without regard to their own state residence. That distinction has become a key issue in litigation such as the Minnesota case.
The Trump administration maintains that the challenged state programs violate that restriction because they effectively allow qualifying immigrants without lawful status to receive tuition rates unavailable to many U.S. citizens living outside the state.
States defending their policies have argued in some cases that eligibility is based on factors such as high school attendance and graduation rather than residency itself, putting the interpretation of the 1996 federal statute at the center of the legal fight.
With five favorable orders secured, a proposed resolution involving Kansas and litigation continuing in 16 states, the Justice Department’s campaign has grown into a nationwide court battle over who may qualify for taxpayer-supported resident tuition at public colleges and universities.
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