A federal judge in Virginia has ruled against the U.S. Department of Justice (DOJ) in a case challenging the state’s policy allowing some undocumented immigrants to pay in-state tuition at public colleges, while the DOJ simultaneously filed a lawsuit targeting a similar policy at the University of Delaware.
On October 5, U.S. District Judge Michael S. Payne sided with Virginia, rejecting the DOJ’s argument that the state’s Tuition Equity Pathway—a 2020 law providing in-state tuition to certain undocumented students—violated federal law. The DOJ had contended that the policy violated a 1996 federal statute prohibiting states from offering in-state tuition to undocumented immigrants based on residence unless U.S. citizens could access the same benefit regardless of location. Payne ruled that the Virginia law does not rely on residence as a determining factor, as it requires students to have attended a Virginia high school for at least two years and for their parents or guardians to have filed Virginia income tax returns for the same period. The judge also noted that some nonresidents could qualify while some residents could not, undermining the DOJ’s claim that the policy was a residency proxy.
Separately, on October 1, the DOJ filed a lawsuit against the University of Delaware and its board of trustees, alleging that the university’s tuition policy for undocumented students violates federal law. According to the complaint, undocumented students qualifying for in-state tuition pay $15,740 annually, while out-of-state U.S. citizens are charged $42,470. The DOJ argues this arrangement directly contravenes the 1996 federal statute, which prohibits states from granting residency-based benefits to undocumented immigrants unless the same benefits are available to citizens regardless of their state of residence. Assistant Attorney General Brett Shumate stated that the case is “a simple matter of federal law.”
Virginia’s policy, which allowed 1,206 non-domiciled students to pay in-state tuition in the 2025–2026 academic year, saves those students an average of $18,604 compared to out-of-state tuition rates. The DOJ’s legal challenge in Delaware seeks to invalidate the university’s policy, which it argues unlawfully discriminates against U.S. citizens based on their state of residence. The contrasting outcomes in these cases highlight the ongoing legal and political debate over whether states can extend in-state tuition benefits to undocumented students without violating federal law.
The 1996 federal statute at the center of both cases, 8 U.S. Code § 1623, states that states may not provide any public benefit, including in-state tuition, to undocumented immigrants unless the same benefit is available to U.S. citizens regardless of their state of residence. The DOJ has argued that Delaware’s policy violates this provision, while Virginia’s policy was designed to avoid that interpretation by tying eligibility to factors other than formal residency. Legal experts note that the split decisions in these cases could lead to further appeals and potential Supreme Court review, given the significance of the issue and the lack of a uniform federal policy on the matter.
The University of Delaware has not yet publicly responded to the DOJ’s lawsuit, and the case remains in its early stages. In Virginia, the ruling is seen as a victory for advocates of tuition equity, who argue that policies like the Tuition Equity Pathway help undocumented students access higher education despite financial barriers. Opponents, including the DOJ, contend that such policies create an unfair advantage for undocumented students over U.S. citizens who pay higher tuition rates based on their state of residence.