JUSTICE DEPARTMENT SUES UNIVERSITY OF DELAWARE OVER IN-STATE TUITION POLICY FOR UNLAWFULLY PRESENT STUDENTS

The U.S. Department of Justice filed a federal lawsuit Thursday against the University of Delaware and its Board of Trustees, challenging a residency policy that allows certain students who are not lawfully present in the United States to qualify for in-state tuition while out-of-state U.S. citizens remain subject to higher nonresident rates.

The complaint was filed in the U.S. District Court for the District of Delaware. The federal government is seeking declaratory and injunctive relief against Section VII of the university’s Student Residency Classification for Tuition and Fee Purposes policy.

The Justice Department argues that the policy conflicts with 8 U.S.C. § 1623(a), a federal statute governing postsecondary education benefits for individuals who are not lawfully present in the United States.

Under that statute, an individual who is not lawfully present cannot receive a postsecondary education benefit based on residence within a state unless U.S. citizens and nationals are eligible for the same benefit regardless of where they reside.

The Department’s position is that the University of Delaware’s policy violates that requirement because qualifying students without lawful status can receive the resident tuition rate based on Delaware residency while U.S. citizens living in other states generally must pay the higher nonresident rate.

The lawsuit represents the federal government’s legal position and has not yet resulted in a final ruling against the university.

According to the complaint, the University of Delaware maintains separate resident and nonresident tuition rates. For one academic year, the university charges Delaware residents approximately $15,740 in tuition while nonresidents are charged approximately $42,470.

That represents a difference of approximately $26,730 for a single academic year.

The challenged portion of the university’s residency policy establishes a special pathway for certain students to receive in-state tuition.

To qualify under that provision, an applicant must have attended a Delaware high school for at least three years, graduated from a Delaware high school or received an equivalent diploma, lived with a parent or legal guardian while attending high school, enrolled at the University of Delaware within 18 months of graduation and provided evidence of having applied for U.S. citizenship or permanent residency.

The Justice Department argues that those requirements function as residency-based criteria and do not independently require the applicant to be lawfully present in the United States.

Federal attorneys contend that this creates an unequal tuition structure because an eligible student without lawful immigration status residing in Delaware can receive the lower resident rate while a U.S. citizen residing outside Delaware does not automatically qualify for the same benefit.

The complaint raises two separate federal preemption claims under the Supremacy Clause.

The first relies on 8 U.S.C. § 1623(a). The Department argues that Congress expressly prohibited state residency from being used to provide postsecondary education benefits to individuals who are not lawfully present unless the same benefit is available to U.S. citizens regardless of residency.

The second claim relies on 8 U.S.C. § 1621.

The Justice Department argues that certain state or local public benefits may be extended to individuals who are not lawfully present only through enactment of a state law. Federal attorneys contend that the University of Delaware residency policy is an administrative policy established by the university’s Board of Trustees rather than an enactment passed by the Delaware legislature.

Based on those two arguments, the Department maintains that the challenged policy is preempted by federal law.

Associate Attorney General Stanley E. Woodward Jr. said the Department intends to continue challenging state laws and university policies that it believes provide reduced tuition benefits to individuals who are not lawfully present when comparable benefits are unavailable to all U.S. citizens.

Assistant Attorney General Brett A. Shumate of the Justice Department’s Civil Division said the dispute centers on federal law governing eligibility for education benefits.

The complaint also places the Delaware case within a broader line of litigation involving similar tuition policies across the country.

One of the most significant cases cited by the Department involves Texas.

In July 2026, the U.S. Court of Appeals for the Fifth Circuit upheld the denial of efforts to intervene in litigation involving Texas in-state tuition provisions. The court concluded that 8 U.S.C. § 1623(a) preempts state provisions that allow individuals who are not lawfully present to obtain residence-based tuition benefits when the same benefit is unavailable to U.S. citizens and nationals without regard to residency.

The Fifth Circuit emphasized that residence does not have to be the only eligibility factor for the federal statute to apply. If residence is a necessary condition for receiving the lower tuition rate, the court concluded that the benefit can still fall within the scope of § 1623(a).

The appellate court also treated discounted in-state tuition as a postsecondary education benefit because the reduced rate provides a direct financial advantage compared with nonresident tuition.

The Justice Department cited additional cases involving Kansas, Illinois, Nebraska, Oklahoma and Kentucky as support for its legal theory in the Delaware lawsuit.

According to the Department, the University of Delaware action is the 26th lawsuit brought as part of its nationwide effort challenging in-state tuition policies involving individuals who are not lawfully present.

The Department reported that cases involving Texas, Kentucky, Oklahoma, Nebraska, Illinois and Kansas have already resulted in court orders or consent judgments preventing enforcement of similar tuition provisions.

Additional federal lawsuits remain pending involving policies in Minnesota, Virginia, California, New Jersey, Massachusetts, Rhode Island, Maryland, Colorado, New York, Connecticut, Vermont, Arizona, New Mexico, Oregon, Washington, Hawaii, the District of Columbia, Arkansas and Utah.

The Department is asking the Delaware federal court to declare Section VII of the University of Delaware’s residency policy invalid under the Supremacy Clause and permanently prohibit the university and its Board of Trustees from enforcing it.

The requested injunction would also prevent the university from adopting a substantially similar policy that provides residence-based tuition benefits to individuals who are not lawfully present while denying the same eligibility to U.S. citizens based on their state of residence.

The litigation now places the University of Delaware’s tuition classification system before a federal court, where the central issue will be whether the university’s residency policy conflicts with federal restrictions governing postsecondary education benefits.

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U.S. Department of Justice — United States of America v. University of Delaware; University of Delaware Board of Trustees, Complaint, U.S. District Court for the District of Delaware, filed October 1, 2026. (Free Download)

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U.S. Court of Appeals for the Fifth Circuit — United States of America v. State of Texas, No. 25-10898, opinion filed July 9, 2026. (Free Download)

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