Dive Brief:
- A federal judge this week dismissed the U.S. Department of Justice’s lawsuit challenging two Virginia laws as part of the agency’s nationwide campaign to end in-state tuition policies for undocumented students.
- The DOJ argued that the two laws conflict with federal immigration statute and therefore should be struck down. However, U.S. District Judge Robert Payne disagreed in his Monday ruling, marking the second time that a judge has dismissed one of the federal agency’s lawsuits against such state policies.
- Overall, the Trump administration’s DOJ has filed lawsuits against 24 states and the District of Columbia. In six of those states, federal judges have sided with the DOJ and struck down policies that provide certain undocumented students with in-state rates. The DOJ has appealed the earlier ruling dismissing one of its lawsuits, while the other cases are ongoing.
Dive Insight:
The DOJ sued Virginia over its laws in December. As in its other lawsuits, the agency pointed to a 1996 federal immigration law that says immigrants who are not lawfully in the U.S. cannot be eligible for “any postsecondary education benefit” based on their residency unless “a citizen or national of the United States” is also eligible for the benefit regardless of whether they’re a state resident.
The agency argued that the federal statute preempts Virginia’s laws — and therefore the laws should be struck down — because they provide in-state tuition to undocumented students based on their residency. In his ruling this week, however, Payne rejected the DOJ’s argument.
DOJ officials did not immediately respond to a request for comment Thursday.
In the DOJ’s lawsuit, the agency alleged that one of Virginia’s contested laws had granted undocumented students eligibility for in-state tuition since 2022. That law grants eligibility for in-state rates for those who were “domiciled” in the state the year before they enrolled in college.
However, the state’s higher education coordinating agency has issued guidelines barring undocumented students from gaining in-state tuition through this pathway. Therefore, Payne wrote, that Virginia law isn’t preempted by the federal statute.
The second contested law, enacted in 2020, allows students to receive in-state tuition if they meet several requirements, including attending a public or private high school or receiving home school instruction in the state for at least two years since July 1, 2008, and showing that they or one their parents or guardians had filed Virginia income tax returns for at least two years before they enroll.
A little over 1,200 students qualified for in-state tuition in Virginia through these provisions during the 2025-26 academic year, according to Payne’s ruling.
Payne ruled that the provisions didn’t grant in-state tuition based on residency and therefore weren’t preempted by federal statute. He cited several examples of ways nonresidents could gain in-state tuition through the law, such as an out-of-state student attending a private boarding school in Virginia.
The judge also rejected the DOJ’s interpretation of the federal statute that bars undocumented students from receiving higher education benefits based on their residency unless “a citizen or national” of the U.S. also receives them, regardless of their residency.
The DOJ has maintained in court documents that the phrasing means “all” citizens must be eligible for the benefit. But Payne said the correct interpretation would be “‘one or more,’ but not all.”
“If Congress meant ‘all citizens’ it could have said so. It did not,” Payne wrote.
Under the DOJ’s interpretation, Payne said, states would be forced to nix their out-of-state tuition entirely if any undocumented student were eligible for the in-state rate.
“No school would do that because it would defeat the purpose of in-state tuition rates,” Payne wrote, adding that this interpretation would essentially mean “providing a total prohibition on undocumented students receiving in-state tuition.”
The ruling is similar to a federal court decision handed down in March that dismissed the DOJ’s lawsuit against Minnesota laws providing in-state tuition to certain undocumented students. The judge overseeing that case similarly ruled that Minnesota’s laws were not based on residency. The DOJ has since appealed that ruling.
Meanwhile, in six states — Illinois, Kansas, Kentucky, Nebraska, Oklahoma and Texas — judges have sided with the DOJ. In all of those cases except Illinois, state officials filed a joint motion with the DOJ to have the laws struck down.
In this week’s ruling, Payne wrote that four of those cases differed because the laws in question were explicitly tied to residency.
The DOJ recently widened its campaign against in-state tuition for undocumented students by suing the University of Delaware over its policy making certain undocumented students eligible for in-state tuition.
