Justice Department Takes Its Tuition Fight to Delaware

The Justice Department filed suit against the University of Delaware on Oct. 1, arguing that the school's tuition policy breaks federal law and discriminates against American citizens. In the department's telling, the university extends the in-state rate to aliens residing in Delaware while charging U.S. citizens from other states the full out-of-state rate.

According to the department's announcement, press release number 26-1125, the policy extends the discounted rate to aliens residing in the state "regardless of whether those aliens are lawfully present." The government is asking a court to block the policy and to bar the university from adopting any new tuition rule that favors illegal aliens over citizens.

This is the 26th lawsuit the department has brought in a nationwide push against in-state tuition benefits for illegal immigrants, an effort the release credits Attorney General Todd Blanche with leading. Six of those cases have already produced orders permanently enjoining or declaring unconstitutional similar laws, in Texas, Kentucky, Oklahoma, Nebraska, Illinois and Kansas. Nineteen more are pending.

The Federal Statute at the Center of It

The complaint leans on a provision of federal immigration law stating that an alien not lawfully present "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." That language is quoted from the complaint by The Western Journal. Put plainly, the government's reading is this: if a school gives the in-state rate to an illegal alien living in the state, it has to give the same rate to a citizen living in Ohio or Oregon.

The Western Journal, citing the university's student financial services page, puts the in-state rate at $15,740 and the out-of-state rate at $42,470. The Justice Department release itself lists no dollar figures, and the outlet did not specify the term or academic year those numbers cover.

The complaint also argues that granting a public benefit of this kind requires affirmative action by a state legislature, which the government says did not happen in Delaware. That argument appears in the Western Journal's account of the filing rather than in the department's public statement.

What Justice Department Officials Said

Associate Attorney General Stanley E. Woodward Jr. framed the suit as one piece of a longer campaign.

This Department of Justice's efforts will not cease until we have challenged every state law or university policy that gives preferential treatment to illegal aliens over our Nation's own citizens.

Woodward also directed a line at state officials, saying that "when a state Attorney General allows her own state to violate federal law, this department must step in to enforce it." Neither the department's release nor the Western Journal story names the Delaware attorney general, so we are not attaching a name to that line here.

Assistant Attorney General Brett A. Shumate of the Civil Division put the legal theory in one sentence: "This is a simple matter of federal law: colleges cannot provide benefits to illegal aliens that they do not provide to U.S. citizens." He added that the department "will not tolerate American students being treated like second-class citizens in their own country." The case is being handled by the Civil Division's Enforcement and Affirmative Litigation Branch.

What Is Not Yet on the Record

Everything above is the government's side. The University of Delaware has not responded publicly in either source reviewed, and neither has the Delaware attorney general's office. The allegations are untested, and the court, judge and case number were not stated in the department's release.

A few other details remain unconfirmed. Some outlets have reported that the suit also names the university's board of trustees; that does not appear in the Justice Department release. The department describes its six wins as orders permanently enjoining and declaring such laws unconstitutional, including an order from the Fifth Circuit, while the Western Journal described those states more loosely as having had to modify their policies. Nebraska and Kansas were resolved through proposed consent decrees rather than contested rulings.

It is also worth noting that the scope of who actually qualifies under the university's policy, and how it defines residency, has not been laid out in the coverage so far. The description of the beneficiaries as illegal aliens is the Justice Department's, and the university's own policy text has not been reviewed against it.

Next comes the university's answer or a motion to dismiss, and possibly a preliminary-injunction motion from the government. The question worth watching is whether Delaware fights or follows Nebraska and Kansas into a negotiated resolution, and how the 19 pending cases in states from California to Vermont shake out behind it.